Swatanter Kumar, C.J.
1. The law is essentially mutable and requires to mould itself with the changing need of the society. In some spheres, the laws emerge from values, discipline and progression of the society as a whole. The laws normally emerge from the need of the social fabric and they meliorate for the betterment, development and progression of laws as well as administrative governance. Sometimes, the law changes by amendments or new enactments as the Legislatures feel credulous of such change. It is equally settled cannon of civil jurisprudence that the Legislative law leaves sometimes either the field of law untouched or the enacted law leaves vacant or gray areas which then are supplied by judicial pronouncements. This necessity arises not as a concept of judicial activism but more out of a need to fill up the lacuna or supply the gaps left by the Legislature primarily to ensure due protection against arbitrary administrative action and also to ensure that actions are in conformity to the constitutional mandate of equality and fairness. Education is one such field where the Judge made law has shown greater impact by application of this principle in matters relating to admission to educational institution. The legislative law and more particularly the notifications issued in exercise of subordinate legislation have lacuna or open areas in the sphere of execution which fall short of clarity and exactitude. Without adherence to such judicial dictum, achievement of the real object behind such enactments or notification is not possible. Doctrine of merit and fairness is often trivialized by delayed administrative actions in regard to implementation of methodology specified for admission to various professional courses. In the present days, education is one of the most highly competitive field where fraction of one mark even can materially affect or alter the course of admissions on the one hand and future of the students on the other. Ab antique it is accepted in the principle that Actus legitimi non recipiunt modum. The purpose of law is to be in conformity with the constitutional mandate that the legislative or administrative action of the State should always been in conformity with the laws in force and should essentially be devoid of any arbitrariness or discrimination. They must have an essence of fairness in State action and they should not only be just ex facie but in substance should avoid wrong to the public at large. Whatever the laws in force, the notifications issued in furtherance to the provisions of the different Acts, the State Government policy as well as the judicial pronouncements including those of Supreme Court of India have without fail emphasised the need for adherence to the specified parameters in relation to various aspects of professional education in the country. Even the object of judicial intervention in educational matters is primarily aimed at scrupulously following these essential features for maintaining proper administration of admission to different fields in the education.
The rudiments can veritably be stated as under:
(a) The admission to academic course moreso, to professional courses has to be strictly on merit. Meritorious students should be given their choice, thus, admission on merit coupled with institution preference should be the basis.
(b) All courses and more particularly, professional courses should essentially commence on the date fixed for commencement for such courses. In other words, the courses must start timely.
(c) Midstream/ midterm admissions should be avoided and more particularly, the students in the professional courses must go through the complete course of education which should not be reduced or narrowed for adjusting such admissions.
(d) The professional and technical councils and State bodies should take appropriate steps to maintain proper educational standards in examination and teaching courses in all its institutions.
(e) The State, Universities and Institutions have an obligation and duty to maintain requisite standard of professional excellence by giving admission on merit to eligible students by a fair and transparent admission process.
(f) Information and admission brochures should be timely issued by the respective authorities which would be binding upon the administration and the students equally. It is not expected of any of the authorities/institutions involved in the process of admission to alter the conditions or process of admission once the process has begun except in rare circumstances and that too in accordance with law.
2. These are precepts stated by judicial pronouncement for fair and timely admission to professional courses. The State issues notifications for admissions to various courses in discharge of its statutory obligation. Various judgments of the Supreme Court and various High Courts have deliberated upon these issues at great length and all uniformly have emphasised the principle of just, fair and transparent method of admission with adherence to the rule of merit. In fact, emphasising the need for adherence to merit in admissions, the Constitution Bench of Supreme Court in the case of Saurabh Chaudhary v. Union of India : AIR2004SC361 , not only equated but in fact, declared that right of meritorious student of his admission is a fundamental right. The court while examining different aspects including that of institutional reservation clearly stated as under:
28. Right of a meritorious student to get admission in a postgraduate course is a fundamental and human right, which is required to be protected. Such a valuable right cannot be permitted to be whittled down at the instance of less meritorious students.
3. One of the most important aspect of maintaining admissions on merit is adherence to time schedule and granting admission at the earliest in order of merit. Delayed display of merit list not only affects commencing courses on time but it also affects counseling and taking other institutional steps essential for admission to courses. It can have adverse effect on admission on merit which totally frustrate the process of admission of meritorious students to the institution of their preference.
4. Divergent judicial opinions can lead to development of law and settling the point of law which may repeatedly arise for consideration of the court. Being influenced with this principle and keeping to the principles of judicial propriety, a Division Bench of this Court to which one of us was a party, on 26th March, 2008 while placing the cases for settling the controversy and position of law, passed the following order:
1. Learned Counsel appearing for the parties commonly state that there are divergent views taken by different benches of this Court. One view has been taken by the Division Bench at the Principal Bench at Mumbai in Civil Writ Petition No. 1645 of 2007 (Atharva Institute of Management Studies and Ors. v. Directorate of Technical Education and Ors.) dated 20th September, 2007 and other view has been expressed by the Division Bench at Nagpur in Civil Writ Petition No. 3423 of 2007 (Guru Nanak Educational Society and Anr. v. The State of Maharashtra and Ors.) dated 31st August, 2007.
2. It is not necessary for us to have any detailed discussion. In view of the above admitted position, it is necessary that the controversy in the present case, including the questions of law, should be answered by a Full Bench of this Court.
3. Let these matters be listed before the Full Bench on 28th March, 2008 for directions.
5. Before we proceed to examine the legal issue arising from the order of the Division Bench in the case of Atharva Institute of Management Studies on one hand and Guru Nanak Educational Society on the other, it would be appropriate for us to notice the facts giving rise to the above order of reference. Writ Petition Nos. 5272 of 2007, 5276 of 2007, 5290 of 2007 and 5291 of 2007 were filed before the Aurangabad Bench of the Bombay High Court. Writ petition Nos. 5290 of 2007 and 5291 of 2007 had been filed by Mahatma Gandhi Mission's Institute of Management through its Director. This institute is run by Mahatma Gandhi Mission, a Public Trust registered under the Bombay Public Trust Act, 1950, which was running different educational courses at Aurangabad and amongst others, it was running the course of MBA since 1994. It was averred in the writ petition that vide letter dated 24th August, 2007 which was received by the institute by fax dated 30th August, 2007, they had been granted permission to admit 30 more students from the academic year 2007- 2008. Obviously, these seats were available to them in addition to their existing quota and direction was prayed against the respondent Nos. 1 and 2 to provide 30 students additionally for that academic year. This college claimed to have been granted sanctioned intake capacity of 60 students for MBA first year with effect from 1994 by respondent No. 3 AICTE. It may be noticed that the last date for admission in all the courses was declared under the State policy and in the MAH-MBA/MMS-CET-2007 information brochure published by Director of Technical Education, Maharashtra, Mumbai for the academic year 2007-2008 was 22nd August, 2007. The case of the institute was that as they have received the sanctioned letter late, though they had applied quite in time, they should be given an additional strength of 30 students. An interim relief under Clause (d) of the prayer clause was also prayed for by this institute which vide order dated 14th September, 2007 was granted by the Division Bench at Aurangabad dealing with the matter.
6. Similarly, Writ Petition No. 5291 of 2007 was filed before Aurangabad Bench by the same institute in regard to filling up of nine additional seats which had been added to the existing strength of the institute over and above the intake capacity i.e. 60 for the academic year 2007-2008 for foreign nationals/PIO/ Children of Indian Workers in gulf countries category. It was pleaded in that case that this information was received by them in terms of the order dated 16th August, 2007 which was received on 22nd August, 2007 and as the admissions had already been closed by 22nd August, 2007, they could not admit the students against this category and they should be permitted to do so. Again an interim order was prayed for seeking directions in terms of prayer (d) of the same prayer clause which also was allowed by the same Bench vide its order dated 14th September, 2007.
7. Writ petition No. 5137 of 2007 was filed by Bhartiya Gramin Punarrachana Sanstha, Aurangabad, an institute which was running various educational courses of MBA, Engineering and Polytechnic College, B.Ed. College, Master of Management Studies and Junior and Senior Colleges. They made an application on 11th December, 2006 to the AICTE for grant of additional strength. After inspection, the report was submitted to the Apex body. As the intake capacity for existing MBA Course was granted but according to the institution, they did not get any intervention of the Master of Computer Application course. Therefore, they preferred an appeal before the AICTE, as a result of which, on 10th August, 2007, the petitioner received permission to MBA and MCA courses with intake capacity of 60. After receiving the approval, an application was made by the petitioner to the respondent Nos. 2 and 3 who have authority to allot the students to the said courses from the merit list of the test conducted by CET. However, no students were allocated. Faced with these facts, the petitioner filed writ petition before Aurangabad Bench of Bombay High Court with the prayer that intake capacity of 60 students should be permitted for the academic year 2007-2008. Interim order in terms of prayer Clause (cc) of the prayer clause was also prayed. This petition was amended even praying for grant of affiliation to the petitionerinstitute from the Dr. Babasaheb Ambedkar Marathwada University, Aurangabad to the MCA Course for the academic year 2007-2008. When this matter came up for admission, another Bench at Aurangabad, while referring to the judgment of the Supreme Court in State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Ors. 2006 AIR SCW 2048 and the order passed by that Bench in Writ Petition No. 4638 of 2007 on 21st August, 2007, also granted interim order in terms of prayer Clause (CC) and amended prayer Clause (DD).
8. Still another writ petition being Writ Petition No. 5276 of 2007 was filed by Shri Sai Samajik Vikas Sanstha at Aurangabad. It was claimed by the petitioner that they were running diploma courses in Engineering (Polytechnic) in different trades for the academic year. They had issued advertisement on 2nd December, 2006 inviting applications for the purposes of granting permission to start the Diploma courses in Engineering for the academic year 2007-2008. An application was submitted by them to respondent No. 3 Director of Technical Education on 29th December, 2006. After conducting the inspection and vide letter dated 15th January, 2007, they were informed that there were certain shortcomings in the documents and the same should be removed. Thereafter, local enquiry committee was constituted and the petitioner was directed to deposit the requisite fee for visit of the committee. On 23rd February, 2007, petitioner deposited the said fee. The committee visited the institution and thereafter, certain shortcomings were to be complied with. The committee visited the institute on 22nd July, 2007 and the proposal was recommended on 13th August, 2007. The respondents did not act timely and as respondents did not take decision, the present writ petition was filed with the prayer that respondent No. 3 be directed to forward their recommendations and the decision be taken in that regard by respondent No. 5 for the academic year 2007-2008. Interim order was also prayed that respondent No. 5 be directed to take immediate decision to forward the proposal and they be permitted by an interim order. This writ petition was also amended by which, it was prayed that respondent Nos. 3 and 4 should grant approval to the petitioner to admit the students to the four courses including Diploma in Computer Engineering and to grant approval of admissions made by the petitioner-institute to the said four course in pursuance to the approval granted by AICTE dated 10th September, 2007 and also to declare results and take steps of further admissions. The Division Bench at Aurangabad vide its order dated 14th September, 2007, granted interim prayers in terms of Clauses (DD) and (EE) subject to the condition stated in the letter dated 1st September, 2007 issued by the Director, Maharashtra State Technical Education Board.
9. Writ Petition No. 5272 of 2007 was filed by Vishwabharati Academy's College of Engineering, Ahmednagar. Petitioner No. 1 was an Engineering College and had been duly recognized. It was granted approval by All India Council for Technical Education vide their letter dated 7th August, 2007. After following the requisite procedure and inspection of the college, the said approval was granted. It was stated that despite the said order, respondent No. 2 is refusing to give permission for admission to the students to the petitioner primarily on the ground that admission date was over. It was done on the ground that after the cut off date if the approval was given by All India Council for Technical Education , the students would not be allocated. Referring to an order passed by the Division Bench at Nagpur Bench of this Court, it was prayed that order should be passed setting aside the approval dated 8th August, 2007 and the petitioner should be permitted to take the students for admission to the course of Engineering. This writ petition was ordered to be circulated on 13th September, 2007. It appears that the interim order was earlier passed in this case on 13th September, 2007 in Civil Application No. 17647 of 2007.
10. Writ Petition No. 8309 of 2007 was filed nearly by 189 students of Nath Polytechnic, Taluka Paithan, District Aurangabad impleading Union of India, the State Government, AICTE, Director of Technical Education, Maharashtra State, Mumbai as well as Shree Sai Samajik Vikas Sanstha which was running the said institute (which had also filed Writ Petition No. 5276 of 2007 at Aurangabad) at the principal seat of High Court at Bombay stating that the students were pursuing their Engineering courses in different faculties run by respondent No. 6 i.e. Diploma in Mechanical Engineering, Information Technology, Civil Engineering and Electronic Engineering etc. They had taken admission in Nath Polytechnic bonafidely. They further stated that they have been informed by the official respondent, that the Maharashtra State Board of Technical Education i.e. Respondent No. 5 has refused to accept their examination forms on/or about 12th November, 2007 on the ground that respondent No. 7 is not affiliated to Maharashtra State Board of Technical Education, Mumbai which is Exhibit `A1' to that writ petition. They also referred to writ petition No. 5276 of 2007 while relying upon the letter of the AICTE dated 10th September, 2007 and praying for due recommendation of leave to admit the students in all those courses. Other facts stated in the writ petition are similar to that of Writ Petition No. 5276 of 2007. In the circumstances, the students prayed for issuance of appropriate writ directing respondent Nos. 3 to 5 and respondent No. 8 to accept examination forms of the petitioners for the first semester of first year and accept the duly filled-in forms and further grant them permission as students of Nath Polytechnic College, run by respondent No. 6 to appear for the said practical examinations and theory examinations commencing from 20th November, 2007. Interim and ad-interim reliefs were prayed in terms of Clause (c). When the matter came up before the Division Bench at Bombay, vide order dated 15th November, 2007 direction was issued to the respondents to permit the students to appear for the examination and not to declare the results without further orders of the court. When this writ petition i.e. Writ petition No. 8309 of 2007 was listed before another Division Bench of this Court on 26th March, 2008 when the Division Bench noticed the conflict between the orders of the two Division Benches in the case of Atharva Institute of Management Studies and Guru Nanak Educational Society and referred the matter to the Full Bench on 8th April, 2008, the Bench passed the following order:
We are informed at bar that Writ Petition No. 5276 of 2007 filed by the Management is pending before the Hon'ble the Chief Justice wherein issue of permission granted by AICTE into Respondent Nos. 6 and 7 is under consideration. This petition is filed by the students who were admitted after the said permission and, therefore, we find it appropriate that this petition be heard along with Writ Petition No. 5276 of 2007 wherein main issue is pending. Therefore, we direct the office to place this petition before the Hon'ble The Chief Justice on or before 22nd April 2008.
That is how all these writ petitions after transfer have been listed before the Full Bench for answering the question of law and for settling the controversy arising from these orders.
11. In furtherance to order of the Court, the Registry had put up a note before the Chief Justice stating that all the five writ petitions which were filed at Aurangabad were pending and in view of the order passed in writ petition No. 8309 of 2007, order was sought whether only writ petition No. 5276 of 2007 should be transferred or all the writ petitions raising the same question should be transferred, particularly, in view of the reference being made to the Full Bench. After obtaining the orders of the Chief Justice, all these writ petitions were transferred to the Principal Bench at Bombay and upon transfer, they were reregistered as writ petition Nos. 8847 of 2007, 8848 of 2007, 8849 of 2007, 850 of 2007 and 8851 of 2007 and were put up for hearing before the Full Bench.
12. We may notice at the very outset that in none of these cases, reply has been filed on behalf of any of the respondents. In fact, there is hardly any controversy on facts and learned Counsel appearing for the parties had, more or less, argued all matters on law and policies keeping in view the admission and information brochures issued by the State Government or the institutes as the case may be.
13. Guru Nanak Educational Society and other institutions had filed writ petitions at Nagpur Bench of this Court which came up for hearing before the Division Bench relating to the admission for academic year 2007. Guru Nanak Educational Society which had started new Engineering College, made an application on 30th October, 2006 for starting the college with intake capacity of 60. Vide letter dated 31st July, 2007, the AICTE had also forwarded to the petitioner and State of Maharashtra their permission to start an Engineering college having four courses within intake capacity of 60. The petitioner applied to the State of Maharashtra for permission to start the college. As no action was taken, the writ petition was filed on 6th August, 2007. The admission process had begun and the first round was conducted on 19th August, 2007, requiring the candidates to join on 21st August, 2007 and the cut-off date for all admissions to Engineering and Technology Course was 31st August, 2007. Somewhat similar were the facts in the other writ petitions listed along with this writ petition. The court vide its judgment dated 31st August, 2007, made the rule absolute and issued certain directions including holding of a special round of counseling for the remainder of the list of qualified candidates who have not been admitted and allot the students to the petitioner-Institutions giving a clear 7 days notice and process of counseling should commence from 12th September, 2007. In this judgment, reference was made to various interim orders or orders in the different writ petitions. However, as it appears, the recent judgment of the Bombay Bench in the case of Atharva Institute of Management Studies and many other judgments and interim orders were not brought to the notice of the Bench. Noticing that adherence to the golden rule of merit-cum-choice, the State should have complied with the directions issued by the court in different orders. This judgment of Nagpur Bench was assailed before the Supreme Court by the State of Maharashtra and vide order dated 6th September, 2007, the Supreme Court while declining to interfere in the order, made it clear that students who had already been admitted in various institutions, their admissions shall not be disturbed in furtherance to the order of the Division Bench and the State should complete the process of admission on/or before 17th September, 2007 by holding only one round of admission. Special Leave Petition was disposed of accordingly. However, merits of the case and the legal issues arising therefrom were not discussed by the Supreme Court as the matter itself was disposed of upon mentioning and taking the matter on board.
14. It may also be noticed that Division Bench of this Court at the Principal Bench in the case of Yerala Medical Trust & Research Center and Ors. v. State of Maharashtra and Ors. : 2006(1)BomCR701 , decided on 15th September, 2005 much prior to the decision of the Nagpur Bench referred to the directions issued by another Bench in Writ Petition No. 3196 of 2001 wherein intake cut-off date was fixed as 30th June, 2005 and it is on this account that the respondents did not grant permission or approval to the new institutions. The Bench while maintaining the concept of cut-off date for intake capacity as set down in that judgment, issued further directions. The directions issued read as under:
10. In the light of that, the Petition can be disposed of by issuing the following directions:
i) The State Government will consider the intake capacity as on 30th June, 2005 to commence the process for filling in seats subject to what is set out hereunder;
ii) If before the last date of the admission/counseling process, AICTE increases the intake of existing institutions or grants permission for new colleges, the State Government will take into consideration such additional seats and take steps to fill in these seats from amongst students already on their list and without interfering with the admission process already completed;
iii) This would, however, be subject to the condition that such institutions must have affiliation in terms directed by Respondent No. 3 and the institutional students are in a position to complete the necessary number of days for appearing for the examination in terms fixed by Respondent No. 3 as followed by Respondent No. 6.
iv) It is made clear that those who have already been admitted before the increased intake or approval by Respondent No. 3 by granting approval of new institutions or additional intake will not be entitled to apply nor will the State consider their applications for admission in the new college where approval has been granted or intake increased.
15. In writ petition No. 6327 of 2006, Pravara Rural Education Society v. The State of Maharashtra and Anr., alongwith other matters, another Division Bench of this Court noticing the peculiar facts of that case accepted the contention that from the next year, addition of new colleges or increase intake capacity should be permitted upto 30th June as the same goes to disturb the whole process of admission and no finality is reached. On behalf of the Government, it was stated that Director of Technical Education will notify the availability of seats with the petitioners- colleges on the website and consider the candidates who are eligible for the fourth round for admission of the petitioner-college. In no uncertain terms, the Bench directed as under:
We direct that from the next year students shall not be admitted in colleges/institutions who are granted permission to start the course after 30th June of that year, so also, no additional intake capacity would be taken into consideration if the same has been increased after 30th June of the year. It is further made clear that there shall be no further/additional round after the fourth round which is scheduled on 15th September, 2006.
16. Still in another Division Bench at the Principal Seat in the case of Marwadi Vidyalaya Trust v. the State of Maharashtra and Ors. writ petition No. 2215 of 2006, decided on 12th September, 2006, held as under:
5. We agree with the Petitioners that considering the law declared by the Apex Court in the matter of approval for opening a college, to the extent that AICTE Act operates in the field, the provisions of the local Act including University Act to that extent would not be applicable. That however, does not mean that the institution to whom approval has been granted need not take affiliation from the University. AICTE itself was aware of the position and has inserted the clause requiring institutions to whom approval is granted to make admissions only after grant of affiliation by the University/State Board to start the course. It is thus clear that it will not be open to the Petitioner institution to admit students without first getting affiliation. At the highest the Petitioners may point out to the University at the stage of affiliation that they may not be required to go through the entire gamut or process for grant of approval which had already been undertaken by the AICTE. The Institution however, will have to comply with other requirements before getting first time affiliation to start the courses.
6. In the instant cases, therefore, considering the condition imposed by AICTE and the directions issued by us in Yerla Medical Trust (supra), we are of the considered opinion that on the facts of the present cases, it will not be possible for us to issue directions which have been prayed for. In the light of that, Rule discharged in all the Petitions. There shall be no order as to costs.
17. After considering these views, the Division Bench of this Court in the case of Atharva Institute of Management (supra) followed the view taken by the different Division Benches in these cases. As there was considerable variation in the view expressed in the orders noticed by Nagpur Bench in Guru Nanak case (supra) and all other writ petitions including Atharva Institute of Management case, reference to larger Bench was inevitable so that the position of law as well as controversies raised in these Writ Petitions are well settled.
18. In process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) All India Technical Council for Technical Education, (ii) State of Maharashtra through Director of Technical Education and (iii) University to which such institution is affiliated. The role of all these institutions is distinct and different but for a common object. Primacy of the role of All India Council for Technical Education (AICTE) is now well settled but that certainly does not mean that role of the State Government and for that matter the University is without any purpose or of no importance.
19. The Division Bench of this Court in the case of Atharva Institute of Management (supra) by following the views expressed by different Division Benches of this Court in earlier cases, stated the principle that there has to be cut off date after which the intake capacity cannot be given effect to and process of admission to the students in those courses cannot be continued over an indefinite period. The Bench also issued certain directions. Role of various Authorities
20. As is evident from the factual matrix of these cases, the colleges are blaming one institution or the other including the State for the delay in disposal of their applications for increased intake or commencement of fresh courses. It is averred that the applications were made quite in time and even after the inspections were conducted approval was not granted, while in other cases even the approval was granted but sanction by the Director of Technical Education to start the course was not given before the cut off date leading to great hardship. As far as the technical courses are concerned, it is settled position in law now that the All India Council for Technical Education is the paramount body for granting the approval to the various colleges for increased intake or commencement of fresh course. There is definite responsibility upon the Council to ensure maintenance of educational standards as well as to ensure that the prescribed parameters for imparting of such educational courses including the infra-structure, etc. are strictly adhered to.
21. In the case of State of Tamil Nadu and Anr. v. Adhiyaman Educational & Research Institute and Ors. : (1995)4SCC104 , the Supreme Court while discussing various aspects in regard to constitutional validity of Tamil Nadu Private College Regulation Act, 1976 and the provisions of the All India Council for Technical Education Act clearly spelled out the preferential role of the Council as under:
22. The aforesaid provisions of the Act including its preamble make it abundantly clear that the Council has been established under the Act for coordinated and integrated development of the technical education system at all levels throughout the country and is enjoined to promote qualitative improvement of such education in relation to planned quantitative growth. The Council is also required to regulate and ensure proper maintenance of norms and standards in the technical education system. The Council is further to evolve suitable performance appraisal system incorporating such norms and mechanisms in enforcing their accountability. It is also required to provide guidelines for admission of students and has power to withhold or discontinue grants and to de-recognise the institutions where norms and standards laid down by it and directions given by it from time to time are not followed. This duty and responsibility cast on the Council implies that the norms and standards to be set should be such as would prevent a lopsided or an isolated development of technical education in the country..It is necessary to bear this aspect of the norms and standards to be prescribed in mind, for a major debate before us centered around the right of the States to prescribe standards higher than the one laid down by the Council. What is further necessary to remember is that the Council has on it representatives not only of the States but also of the State Universities. They have, therefore, a say in the matter of laying down the norms and standards which may be prescribed by the Council for such education from time to time. The Council has further the Regional Committees, at present, at least, in four major geographical zones and the constitution and functions of the Committees are to be prescribed by the regulations to be made by the Council. Since the Council has the representation of the States and the provisional bodies on it which have also representation from different States and regions, they have a say in the constitution and functions of these Committees as well....
22. Further, the Court while noticing the inconsistency between the Central and State statutes or the State authorities acting contrary to the Central statute, held as under:
(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally.
43. As a result, as has been pointed out earlier, the provisions of the Central statute on the one hand and of the State statutes on the other, being inconsistent and, therefore, repugnant with each other, the Central statute will prevail and the de-recognition by the State Government or the disaffiliation by the State University on grounds which are inconsistent with those enumerated in the Central statute will be inoperative.
23. Still, in another case of Jaya Gokul Educational Trust v. Commissioner & Secretary to Government Higher Education Deptt., Thiruvananthapuram and Anr. AIR 2000 SC 1614, the Court reiterating the above principle, held as under:
22. As held in the Tamil Nadu case AIR 1995 SCW 2179, the Central Act of 1987 and ;in particular, Section 10(K) occupied the field relating the `grant of approvals' for establishing technical institutions and the provisions of the Central Act alone were to be complied with. So far as the provisions of the Mahatma Gandhi University Act or its statutes were concerned and in particular statute 9(7), they merely required the University to obtain the `views' of the State Government. That could not be characterised as requiring the 'approval' of the State Government. If, needed, the University statute could be so interpreted, such a provision requiring approval of the State Government would be repugnant to the provisions of Section 10(K) of the AICTE Act, 1987 and would again be void. As pointed out in the Tamil Nadu case there were enough provisions in the Central Act for consultation by the Council of the AICTE with various agencies, including the State Governments and the Universities concerned. The State Level Committee and the Central Regional Committees contained various experts and State representatives. In case of difference of opinion as between the various consultees, the AICTE would have to go by the views of the Central Task Force. These were sufficient safeguards for ascertaining the views of the State Governments and the Universities. No doubt the question of affiliation was a different matter and was not covered by the Central Act but in the Tamil Nadu case, it was held that the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by the AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not be inconsistent with the provisions of the Central Act. The University could not, therefore, in any event have sought for `approval' of the State Government.
24. This view of the Supreme Court was reiterated with approval by a larger Bench of the Supreme Court in the case of State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Ors. : (2006)9SCC1 . While discussing in detail the various legal issues in relation to affiliation/ recommendation of the institution and permission to start new college, while permission was granted under Section 14 of the NCTE Act in that case, the impediment caused by the State were held to be unjustifiable in fact and in law and the Court held as under:
53. The Court then considered the argument put forward on behalf of the State that while it would be open for the Council to lay down minimum standards and requirements, it did not preclude the State from prescribing higher standards and requirements.
54. Negativing the contention, the Court quoted with approval the following observations of B.N. Rau, J. in G.P. Stewart v. Brojendra Kishore Roy Chaudhury:
It is sometimes said that two laws cannot be said to be properly repugnant unless there is direct conflict between them, as when one says `do' and the other `don't', there is no true repugnancy, according to this view, if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test; there may well be cases of repugnancy where both laws say `don't' but in different ways. For example, one law may say `no person shall sell liquor by retail, that is, in quantities of less than five gallons at a time' and another law may say, `no person shall sell liquor by retail, that is, in quantities of less than ten gallons at a time'. Here, it is obviously possible to obey both laws, by obeying the more stringent of the two, namely, the second one; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified.64. Even otherwise, in our opinion, the High Court was fully justified in negativing the argument of the State Government that permission could be refused by the State Government on 'policy consideration'. As already observed earlier, policy consideration was negatived by this Court in Thirumuruga Kirupananda Trust as also in Jaya Gokul Educational Trust.
74. It is thus clear that the Central Government has considered the subject of secondary education and higher education at the national level. The Act of 1993 also requires Parliament to consider teacher-education system 'throughout the country'. NCTE, therefore, in our opinion, is expected to deal with applications for establishing new Bed colleges or allowing increase in intake capacity, keeping in view the 1993 Act and planned and coordinated development of teacher- education system in the country. It is neither open to the State Government nor to a university to consider the local conditions or apply 'State policy' to refuse such permission. In fact, as held by this Court in cases referred to hereinabove, the State Government has no power to reject the prayer of an institution or to overrule the decision of NCTE. The action of the State Government, therefore, was contrary to law and has rightly been set aside by the High Court.
25. The above enunciated principles clearly show that the Council is the authority constituted under the Central Act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. Its opinion is of utmost importance and shall take precedence over views of the State as well as that of the University. The concerned Department of the State and the affiliating University has a role to play but it is limited in its application. They cannot lay down any guidelines or policies which would be in conflict with the Central statute or the standards laid down by the Central body. State can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the Central body. In the present cases, there is not much conflict on this issue, but it needs to be clarified that while the State grants its approval and University its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the Central authority or Council. What is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education and ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. Only if all these authorities work in a coordinated manner and with cooperation they would be able to achieve the very object for which all these entities exist. Information and Admission Brochure
26. For ensuring adherence to proper appreciation of a academic course, it is essential that the method of admission is just, fair and transparent. The first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institutions keeping in mind their merit and preference of colleges. Brochure, whether information or admission, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. It is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. This brochure is binding on the applicants as well as all the authorities. This brochure or admission notification issued by the State or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. There is hardly any exception to this accepted rule of law.
27. The Full Bench of the Punjab & Haryana High Court in the case of Raj Singh v. Maharshi Dayanand University 1994 (4) Recent Services Judgments 289, following the earlier Full Bench of the Court in the case of Amardeep Singh Sahota v. The State of Punjab, etc. (1993) PLR 212, held that the brochure is binding on the applicant as well as the institute and has the force of law.
28. The view of the Full Bench was dilated to some extent by the Supreme Court in the case of Rajiv Kapoor and Ors. v. State of Haryana and Ors. AIR 2000 SC 1476, where the Court held that the Government may have the power to issue directions laying down any criteria other than the one contained in the prospectus, but such criteria essentially has to be within the limits and even if the modified criteria envisaged under the earlier order is to be eschewed from consideration, the earlier order providing for criteria and the manner of assessment of merit could not be given a go bye. In other words, the variation of a public notification has to be essentially at the appropriate stage and within the limits prescribed by law.
29. Coming to the present case, the entire process of admission to the increased seats and/or fresh courses has to be in conformity with the information brochure issued by the Directorate of Technical Education, Maharashtra State, Mumbai being MAH-MBA/ MMS - CET 2007 and the technical courses are to be controlled by Directorate of Technical Education, Maharashtra State, Mumbai where it provides for submission of applications, their scrutiny and the method by which the admission would be given. Notification dated 21st July 2007 publishing the schedule of activities for CAP Round II and III and CAP round IV by counseling. It specifies the table of seats available, the date on which the seats will be available, date of receipt for application, table of provisional allotment list and various other intervening dates stating that the last date for grant of admission would be 9th August 2007 where the candidates are supposed to report on 10/11 August 2007, classes would commence from 13th August 2007 and cut off date for all admissions to all these courses MBA, MMS etc. was fixed as 22nd August 2007.
30. Similarly, in the technical course, the Director of Technical Education had under Clause 26.4.4. stated the sanctioned intake for various courses in various institutions for the academic year 2007-08. That also provided for admission rounds and admission to the college was to be confirmed by the respective institutions. Annexure 5 of this brochure had provided the detailed information of different institutions and courses as per AICTE communication where the seats were available to the candidates.
31. All the authorities concerned are bound by these terms and conditions and in any case there has not been any violation in the information or admission brochure issued by the respective institutions. What really needs to be noticed is that in the brochure declared for the academic year 2007, the higher intake of seats or commencement of the new courses were not shown in Annexure 5 to the brochure and for that matter in any of the list released by the State.
32. The calendar issued by the AICTE for the academic year 2007 clearly indicated that the approval process requires an LOI to be issued which will be valid for three years and letter of approval for a period of two academic years. It was stated that the applications could be moved in time around the year. However, the applications completed in all respects received upto 31st December shall be considered for the following academic year and applications received after 31st December shall be considered for the next academic year. Under Clause 4 of the advertisement issued, it was further clarified that the letter of approval for the current academic year shall be issued by 30th June, completed applications received by 31st December of the previous calendar year and the letter of approval issued after 30th June shall not be valid for the current academic year but shall be valid for the next two academic years.
33. On the cumulative reading of the brochure and the calendar issued by AIETC, it is clear that dates of admission, commencement of courses and issuance of LOI/LOA are sacrosanct and have to be strictly adhered to. Such an approach in fact would be in consonance with the law as well as would help to achieve the object of better education, timely commencement of course as well as adherence to the rule of merit. It is only if these dates are treated as sacrosanct, that there will be no prejudice to the applicants, institutions or authorities regulating the process of admission.
34. Another important aspect of process of admission is merit coupled with preference of institution of the meritorious students. In Saurabh Chaudhary's case (supra), the Supreme Court noticed with some significance the importance of merits in such matters and even equated right of a meritorious candidate to get admission to 'a fundamental right and human right' though in relation to a post graduate course. This principle will be equally applicable to other courses of education. This being the importance of merit, every effort is expected to be made by all the organs involved in the process of admission to ensure that the criteria of merit is not permitted to be frustrated by adopting any direct or indirect method. A Division Bench of this Court in the case of Shri Vile Parle Kelavani Mandal and Ors. v. State of Maharashtra and Ors. decided on 13th March, 2008 clearly stated the principle that even while selecting and admitting the students to a special category including their community, interse merit of those students cannot be ignored and admission must be made strictly on the basis of merit. While referring to the case of T.M.A. Pai Foundation v. State of Karnataka : AIR2003SC355 , the Bench further illustratively stated that every process of admission has to be fair, transparent and should not defeat the merit whether for admission of internal or external candidates. Still in the case of Muskan Dogra and Ors. v. State of Punjab and Ors. (2005) 9 SCC 186, the Supreme Court while directing adherence to rule of high merit, held:
We can appreciate the magnanimity but not when it is entirely at the cost of merit. We do not wish to send a message that merit can be blatantly compromised when, in fact, it comes to the stage of issuing directions.
Thus, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. This rule should not be frustrated as that will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. One of the ways in which merit can be defeated is allowing increase in the intake strength or commencement of the new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. We may illustrate this by giving an example. College `A' which is running a professional course like Engineering or MBA etc has an intake capacity of 60 seats which has duly been notified in the information brochure like the one which is part of Annexure 5. However, after the cut-off date, approval is granted by the AICTE and thereafter, the process is taken up by the State and the intake capacity of the college is increased by 30 more seats. These seats would obviously, not be notified in the information brochure and the candidates who are meritorious and for whom college `A' be the college of preference could not get seats or give preference as the seats were limited. None had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even if it is put on the Internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. In that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. Besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly affect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. It is also a kind of back door entry method.
35. Another serious consequence that results from such admissions is shortening of the academic courses in an undesirable manner. It is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. This results in lowering the excellence of education as well as harms the academic standard of professional education. During the course of arguments, it was stated before us by the counsel appearing for the State as well as the other counsel that in professional courses, each semester must consist of 16 weeks of actual study. This criteria can never be satisfied if the students are admitted mid stream much after the commencement of the courses which in the present case had started in the middle of August. Besides all this, these decisions of such serious consequences being taken up at the nick of time in undue haste amounts to defective governance to the admission of professional courses. Once the process of admissions is concluded, it will be unfair to the very system of fair and transparent admission process to grant new admissions. In the present times where there is very tough competition for seeking admission to professional colleges of preference, there cannot be a greater unfairness than to defeat the admission of a meritorious candidate by any of such processes. In the case of Medical Council of India v. Madhu Singh and Ors. : [2002]SUPP2SCR228 , the Supreme Court while recording its conclusions in relation to admission to professional courses like medicine, held as under:
23. It is to be noted that if any student is admitted after commencement of the course it would be against the intended objects of fixing a time schedule. In fact, as the factual positions go to show, the inevitable result is increase in the number of seats for the next session to accommodate the students who are admitted after commencement of the course for the relevant session. Though, it was pleaded by learned Counsel for respondent No. 1 that with the object of preventing loss of national exchequer such admissions should be permitted, we are of the view that same cannot be a ground to permit midstream admissions which would be against the spirit of governing statutes. His suggestion that extra classes can be taken is also not acceptable. The time schedule is fixed by taking into consideration the capacity of the student to study and the appropriate spacing of classes. The students also need rest and the continuous taking of classes with the object of fulfilling requisite number of days would be harmful to the students' physical and mental capacity to study. In fact such a suggestion was held to be grossly inappropriate in Dr. Dinesh Kumar's case (supra). In paragraph 15, it was observed as under:The next question is as to when should be examination be held. Learned Counsel for the Union of India as also the Indian Medical Council suggested that it could be done in October this year so that the candidates selected at the entrance examination could join the 1987-88 session from November. In most of the colleges, admission in respect of 85 per cent seats has been completed and actual teaching has either begun or is about to begin. By November a substantial part of the course would have been read. To meet the situation, learned Counsel for the Union of India suggested that we should direct the colleges and institutions to have a supplementary course for the students admitted against the 15 per cent vacancies. In the absence of consent from the i nstitutions , it would be difficult to work out that. As it is, there exists a lot of confusion in the field and we do not propose to add to it by giving a direction of the type proposed. On the other hand it would be appropriate to bring the scheme into operation from the coming year so that all the preliminaries can be properly conducted and in regular course the students can seek admission to the 1988-89 session. We accordingly direct the authorities to hold the examination in the manner directed, in June (sic May) 1988. The Union of India, the Medical Council the Dental Council, the several States, Universities and Medical Colleges or institutions who are covered by the scheme are directed to comply with these orders in time so as to give full effect to what has been said here
36. The law settled in this regard is consistent. The views expressed by the various High Courts and even by the Supreme Court in its subsequent judgments unambiguously emphasise the need for commencement of course in time, impermissibility of mid58 term admission and maintaining merits. In the case of Mridul Dhar (Minor) and Anr. v. Union of India and Ors. : AIR2005SC666 , even while dealing with the case of secondary students, the Supreme Court held as under:
32. Having regard to the professional courses, it deserves to be emphasised that all concerned including Governments, State and Central both, MCI/DCI, colleges - new or old, students, Boards, universities, examining authorities, etc. are required to strictly adhere to the time schedule wherever provided for; there should not be midstream admissions; admissions should not be in excess of sanctioned intake capacity or in excess of quote of anyone, whether State or management. The carrying forward of any unfilled seats of one academic year to next academic year is also not permissible.
37. After enunciating the above principle, the Supreme Court further issued directions fixing the time schedule for declaration of results of 10+2 course, issuance of mark sheet and then notification of time table and strict adherence to the specified schedule. In the case of Medical Council of India v. Naina Verma and Ors. (2005) 12 SCC 626 while referring to its earlier view expressed in the case of Muskan Dogra (supra), the Supreme Court has reiterated its judicial dictum that the students must complete their professional courses with effect from day one. There is no short circuiting of process of education by means of litigation or otherwise and deprecated the practice of midstream admissions.
38. Non-adherence to schedule and granting untimely or midstream admissions have their adverse effects on the education system itself. Besides others, it also introduces the element of arbitrariness and defeating the merit oriented admissions. It is expected of all the bodies including the Central Council to work in coordination and ensure adherence to the notified calendar for admissions. Breach of this solemn object often results in disfunctional or un-reconcilable situation. The courts have in some cases granted admissions to balance the equities between the parties but jurisdiction of equity can hardly be exercised to defeat the law and particularly the merit. The courts would not and may not be able to supervise the admission process and, therefore, it is more than essential that court exercises its extraordinary jurisdiction under Article 226 of the Constitution of India in accordance with the notifications and the judgments of the Supreme Court which alone will further the cause of fairness in admission process and excellence of educational standard.
39. The Division Bench of this Court in the case of Atharva Institute of Management (supra), after noticing the various judgments of the Supreme Court as well as the directions issued by different Benches of this Court had not only prescribed the need for adherence to uniform standard and to the cut-off date but also noticed the further difficulty that the college is not entitled to admit the students merely on the ground that AICTE has granted its approval. It has to be supplemented by proper exercise of power by the statutory authorities. The satisfaction of such authorities, obviously, has to be in consonance with the conditions imposed by the AICTE. The Bench dealing with the difficulties posed by the State Government in implementation of eleventh hours increase in intake strength etc., issued the following directions:
9. The State Government has, in the course of these proceedings, set out the serious difficulties that arise in implementing the admissions process if AICTE grants approval throughout the year in an unregulated manner. This, it has been stated, would cause irreparable loss, hardship and immense inconvenience to students. An increase in the number of seats for a particular academic year can occur for one of the following reasons viz., : (i) An approval granted for opening of a new College; (ii) An approval granted for opening of a new course in an existing affiliated College; and (iii) An approval granted for an increase in the intake capacity of an approved affiliated old course conducted by an existing approved and affiliated College. The State Government has stated that if approval is granted on the eve of the commencement of admission, such additional seats should not be made available for the grant of admissions in the particular Academic Year for several reasons:
(i) The educational institution is not immediately entitled to admit students merely on the ground of approval by AICTE, because AICTE grants approval subject to the fulfillment of various conditions. Hence, unless an exercise is conducted by the statutory authority to record a finding that such conditions subject to the fulfillment of which approval has been granted by AICTE are, in fact, fulfilled, admissions cannot be granted in furtherance of the approval. This process of recording the satisfactory fulfillment of the conditions prescribed by AICTE takes time and cannot be completed before the commencement of the admissions process if the approval received from AICTE is on the eve of the commencement of admissions;
(ii) Upon the approval by AICTE, institutions are required to obtain affiliation from the concerned University. The process of affiliation takes a few months since it involves inspection by a local Inspection Committee and the consideration of the report of the Academic Council of the University. The process of affiliation, therefore, cannot be conducted and completed if the initial approval of AICTE is received just before admissions are to commence;
(iii) In view of the judgments of the Supreme Court, it is impermissible in such a case to grant provisional admissions, thereby putting the career of a large body of innocent students in danger. Several institutions admit students armed with the approval of AICTE and in such cases if affiliation is refused by the University, that would seriously affect the careers of the students;
(iv) If additional seats are made available during the admissions process, the students who are already admitted prior to making such additional seats available, do not get an opportunity to claim those seats. As a result of this, the golden rule for the allotment of seats on the basis of merit-cumchoice gets breached;
(v) In the event that the seats which additionally become available during the continuation of the admissions process are made available to students who have already been admitted by the time that such seats are made available, the entire process would be thrown out of gear and would get severely disturbed. If students who have already been admitted are allowed to change their admissions, this would set in motion a change which would have a cascading effect destroying the entire admissions process that has already become settled;
(vi) The Competent Authority which is incharge of conducting admissions would also be faced with innumerable administrative difficulties when additional seats become available during the admissions process. The distribution of the allotment of seats to various categories including reserved seats is a complex process which has to be conducted not only on the basis of seats available at the College, but also seats available overall in the State. As against the Health Science Courses where admissions are granted to a limited and restricted number of course, in the case of Technical Courses, thee are numerous choices available to students, namely, (i) coursewise choices, there being more than 60 courses; (ii) collegewise choices, there being about 163 colleges; (iii) quotawise choices; (iv) categorywise choices - reserved, open, reserved for women etc.; and (v) institutionwise choices - involving a differential fee structure and affordability of the payment of fees. The state Government has, therefore, submitted that approval should not be granted by AICTE on the eve of the commencement of the admissions process so that no complications would arise. Institutions which get approval either for the first time or for additional courses or, for that matter for additional intake capacity, can wait for the next Academic Year for commencement of that course within which period, requisite statutory approvals and permissions can be obtained. A large number of students seeking admissions to technical courses come from rural areas and the students, their parents and teachers go strictly by what is stated in the admissions brochure. Such students have no access to know, inter alia, about the availability of additional seats.
40. The Nagpur Bench while granting the relief to the Petitioners had noticed that letter of intent was issued in favour of the institution on 25th May 2007 and finally approval was granted on 31st July 2007 and at that time the first round of admission was over and second round had to start on 29th July 2007. The Petitioners had applied on 1st August 2007 seeking the necessary permission and no objections were issued during the pendency of the Writ Petition on 21st August 2007. Referring to the judgment in Writ Petition No. 5986 of 2005, the Court held that the State was not really bothered about adhering to the rule of merit-cum-choice and it had failed to carry out the directions issued in the judgment of the Court. Reference can be made to the order of the Aurangabad Bench in Writ Petition No. 4368 of 2007 where increased quota seats were permitted to be filled up after cut off date after an interim order had granted the relief to the applicants. In our view, the judgment of the Court in Guru Nanak Education Institute (supra) does not state the correct position of law. Furthermore, the principle laid down by the Division Bench judgment of the Principal Bench as well as the other Benches were not brought to the notice of the Court dealing with this case. The judgments of the other Division Benches had already taken a different view and the view was apparently contrary to the view expressed in Guru Nanak Educational Society (supra) (already referred by us above). Obviously, the Bench had not considered the judgments of the Supreme Court except Madhu Singh (supra) and had not even noticed the directions issued by the Bench in Writ Petition No. 5986 of 2006 taking 30th June 2005 to be the cut off date for intake capacity, of course, subject to other directions which were issued, which included considering applications for admissions to new colleges.
41. The learned Counsel appearing for the Petitioners attempted to rely upon the doctrine of merger and argued that in these cases the Court cannot take a different view. He relied upon the judgments of the Supreme Court in B. Shama Rao v. Union Territory of Pondicherry : [1967]1SCR732 , S. Shanmugavel Nadar v. State of Tamil Nadu : [2003]263ITR658(SC) and State of U.P. v. Synthetics & Chemicals Ltd. : 1993(41)ECC326 . We are afraid that these judgments are of not much avail to the Petitioners in these cases inasmuch as the order of the Supreme Court dated 6th September 2007 is not a judgment laying down any ratio decidendi which can be applied to the present cases. In fact, Guru Nanak Educational Society's case (supra) appears to be a judgment on its own facts.
42. Various judgments have been cited including those of the Supreme Court as well as this Court and thus we are required to determine the real controversy keeping in view the principle enunciated by the Court as well as the larger interest of education.
43. The enunciation of law in Atharva Institute of Management Studies (supra) is in accordance with law. Notifications issued by the Government as well as AICTE specifies the various ingredients essential for maintaining the very object of excellence in education, proper completion of course and adherence to the standards and norms prescribed for infra-structure and amenities. While the Court is granting relief to the Petitioners on equitable ground, it is also desirable that Court keeps in mind that neither the statutory provisions are varied or relaxed in a manner that the object of education would be the casualty. It is much required that in the present day of competitive academics, the standards of education courses and merit cum preference are not given up in favour of mere prayer of the colleges that admission to seats have been denied for want of or cooperation or co-ordination simpliciter between these authorities. This is a matter of common knowledge that every college gets sufficient period to apply to the concerned authorities, particularly the Central Council which is responsible for adherence to standards applicable all over the country and it is necessary that the standards of education and infra-structure are maintained and they ought not to be compromised in a hurry or because of shortage of period. Institutions hardly suffer on any count as the seats would be available to them in the coming year. Wherever the institutions are desirous of taking benefit of additional seats or commencing new courses, it is expected of them to act timely and even approach the court if they so desire, leaving sufficient time for the authorities to comply with the directions of the court, if issued, that too without jeopardising the process of admissions to the courses.
44. The Institutions had been operating with lower number of seats and permission to increased intake of seats without satisfaction being recorded by the approving and affiliating authority should not be enforced in a manner that all essential ingredients of fairness and transparency in process of admission as well as excellence in education are compromised.
45. The contention raised on behalf of the Petitioners that in grant of approval AICTE has supremacy has already been dealt with by us. No doubt, the approval in these cases had been granted by AICTE but that also was subsequent to the cut off date i.e. 30th June 2007. All these authorities are expected to work at tandem, fully cooperate with each other and adhere to the timely schedule notified, where after no additional seats should be granted after the cut off date by any of the authorities for that particular academic year.
46. In the larger interest of the education for requirement of maintaining excellence, both in imparting and conducting of educational courses, enforcement of such mandate would be absolutely essential. In our considered view, it causes no prejudice either to the students or to the institution. Either they are already operating on the existing intake of seats or they still have to start the course. The institutions are not obstructed by any process from approaching the courts well in time if there is inaction on the part of the authorities concerned. For example, in one of the cases (Civil Writ Petition No. 8850 of 2007), the institution claims to have moved application on 29th December, 2006 in response to the advertisement issued on 2nd December, 2006. It further claims that it pursued its application but it cared to approach the court only in September, 2007 when the entire process had already been concluded. This petition, therefore, apparently suffers from the defect of laches keeping in view that the academic year has commenced and in any case, nothing prevented the institution to approach the court much before arrival of the cut-off date. It is further to be noticed that the Government, Director of Technical Education, the Universities as well as the AICTE are ad idem and in fact, have issued notification declaring that 30th June, 2007 would be the cut-off date for grant of approval by the authorities of additional intake and/or commencement of fresh courses for that academic year. The authorities have, in fact, for a change, acted in consonance with law in prescribing the cut-off date for intake of seats/approval of new courses, last date of admission to the courses and commencement of the professional courses in institutions in the State of Maharashtra. This, in no way, is unreasonable but, in fact, is in consonance with the intent of law. It is expected of each college that if it is aggrieved, it can move the courts in time and not approach the courts at eleventh hour after the cut-off date and then persuade the court to disturb the admission process by altering the basic principles of fair, just and transparent admission process. It may also be noticed that in most of these cases, the interim orders were passed by the courts after even the last date of admission was over. The courses commenced in the mid of August, 2007 while interim orders were passed in September, 2007 whereafter, the admission process commenced for those candidates and they obviously, joined the respective courses more than 6 to 8 weeks from the commencement of the courses. As already noticed, according to AICTE, minimum 16 weeks period of education should intervene between the commencement of the course of the semester and thereafter in each semester. Thus, it is a compelling demand to maintain the time schedule and as held by the Supreme Court, curtailment of professional courses is impermissible. Leaving apart cases of patent arbitrariness, decision in such regard is better left to the expert body.
47. In all the writ petitions that we are dealing by this judgment except writ petition No. 8851 of 2007 where the institute is dealing with the Diploma courses and it has to start the new course, the question is in relation to higher intake of seats. As far as the academic year 2007 is concerned, the matter is purely academic in as much as students covered under the judgment and or interim orders, have already been admitted against the additional seats in respective institutions and have already been pursuing their courses in the colleges. As for the judgment of Guru Nanak Educational Society and other interim orders, it has to be seen substantially from the point of view that disturbing these admissions at this juncture may expose the students to great prejudice. Furthermore, the Supreme Court in its order dated 6th September, 2007 had also directed that the admissions should not be disturbed and endeavor should be made to complete the admission by 17th September, 2007. The respondents have not brought to our notice any admission which was given after 17th September, 2007. Another aspect of the case of the petitioners in all these petitions is that for the academic year 2007, they had admitted students under the orders of the court and for the academic year 2008-2009, they have already been granted approval by the AICTE, Director of Education and their courses are being conducted in accordance with law. If that be the situation, in our considered opinion, it will not be just and reasonable to pass any other order except that they should continue with their respective courses. However, this has to be subject to two conditions, firstly, the AICTE and the Director of Education should ensure that academic and infrastructure standards are being maintained in these colleges. Secondly, regarding the students who had been admitted late, due arrangement should be made by the college to make up the deficiency in completion of their respective courses.
48. During the course of hearing, the order of the another Division Bench of this Court passed on 1st August, 2008 in Civil Writ Petition No. 1826 of 2008, The Shetkari Shikshan Mandal v. State of Maharashtra and Ors. was brought to our notice where a Bench while referring to the case of Yerla Medical Trust (supra) directed the Government to consider the cases where approval was granted by AICTE prior to the last date of admission and to take steps to fill in the seats. However, it also observed that the institution must have been affiliated with the University as directed and even their admission to the courses was purely provisional and subject to the institution obtaining requisite affiliation and other steps. With respect, we are unable again to follow this view. In our humble, respectful but firm view, this judgment of the court does not state any principle of law. Furthermore, it would also result in violating basic concepts applicable to such academic cases noticed by us above being affected adversely. There is no notice to the candidates at large, merit will be the casualty and it will only prove the boom for the colleges. They could safely be adjusted in the coming next academic year in terms of the notification issued by the Central Council which is a binding document and validity of which was neither questioned in that writ nor before us. In face of a legal document which is binding on all concerned and is issued in exercise of the legislative statutory power, the courts would hardly be in a position to pass orders in contradiction thereto. With these observations, we do not propose to say anything more in these writ petitions.
49. Larger question which needs to be deliberated and clarified by us is with regard to the strict adherence to the admission schedule and to ensure that rule of merit-cum-preference is not defeated, time period of courses is not curtailed, the admission system is timely completed and decisions are not taken at the eleventh hour. Midstream admissions beside generating litigation will have impact of frustrating the concept of fair and transparent admission system.
50. In the case of Atharva Institute of Management, an affidavit was filed on behalf of All India Council for Technical Education wherein it was stated that between July and August, 2007, 37 students have been granted approval by the council. These applications appear to have been made between the end of the year 2006 to February, 2007. It is further averred that after directions were passed in the previous writ petitions in the 56th Executive Committee meeting held on 16th August, 2007, a general cut-off date of 31st December of every year for submission of applications was fixed. The applications received by that date were to be processed for next academic year. However, no cut-off date was stated for the purposes of clearing those applications for next academic year. It had a tremendous adverse impact not only on the admission system but even on the excellence and standards of specialised or professional courses. After the approval was granted by the council, even subsequent to commencement of the counseling for admission and everything was done in such undue haste that it was not in accordance with any express or accepted norms of administrative functioning. In some cases approval was granted by AICTE but because of shortage of time and/or for varied reasons Director of Education or the University could not grant the permission thus, bringing the deadlock and generating substantial litigation in every academic year.
51. Serious attempt was made to argue before the court that the institutes have invested money on infrastructure and, thus, it would be inequitable not to permit admissions even after the cut-off dates as the seats would go waste. This argument of equity seems to be attractive at the first glance but when examined in depth after proper analysis of law, it is without substance. We have already noticed that if an institution was to increase the intake of seats or start new courses, it must act timely. It is expected of such institution to approach the court well in time and not at the nick of the time when the courses are about to commence and in most of the cases when admission process has been closed. Merely because some expenditure has been increasing for the infrastructure per se is no justification for compelling the expert bodies to permit admissions after the cut-off dates. The seats which are approved after 30th June are to be added in the next academic year as per the stand of AICTE and Director of Education as well. Thus, their expenditure, no way, is wasted. Secondly, all three principles as discussed in some elaboration above, that is merit-cum-preference, timely commencement of the courses and midstream admissions are adversely affected if this argument is accepted. The court cannot also lose sight of the fact that the Central and State bodies have to carry out proper inspection in accordance with the provisions of Section 10(p) of the All India Council for Technical Education Act, 1987, regulation 2.6.9(a) notifications issued and law enacted by the State. These principles are intended to achieve the object and significance of adherence to proper academic and infrastructural parameters. Even under the order of the court if inspections are directed to be carried out in an undue haste, it will surely adversely affect excellence of education as a whole. This should be avoided in the interest of all concerned. It may, at best cause some inconvenience to the institutions only for the present year whereafter the institution, students as well as the Central and State Governmental authorities would be fully aware of their obligations as well as the time schedule which shall be enforced without fail.
52. Every person or authority would have more than adequate time at hand to take appropriate decisions including pursuing legal remedy available to the students and/or the institution. The entire process is a continuing process. The relevancy and nexus of the cut off date is for finalisation of admission and commencement of the courses. Thus, these cut off dates besides being requirements of law are even administratively necessary. Wherever necessary, aggrieved party concerned can also approach the court well in advance of the cut off dates which are sacrosanct. Vide notification dated 14th September, 2006, approval process was notified by the AICTE which was also followed in the subsequent years including January, 2008. This is declared to be a legal document and has the force of law. It is expected of the council to follow its procedure and adhere to the schedule indicated in different chapters for commencement of new courses as well as for increase or variation of intake capacity of seats in existing courses. In terms of Clause 2.8.1(c) of the notification issued by AICTE, the council while dealing with the application/submissions of proposal for courses are received, is required to communicate to the applicant society or trust within 15 days from the date of receipt of the proposal the deficiency, if any, in the check list. Wherever the applications are submitted to the Regional Office, it is required to send the intimation even to the AICTE Headquarters in Delhi. The State Government and the affiliating University, both, are required to forward their views within 30 days from the date they received the proposal sent by the Regional office in terms of Clause 2.8.2(a) and issue a No Objection Certificate to the applicant society. The council in terms of Clause 2.8.2(c) can overrule the recommendations of the State Government as well as the University while deciding the matters of introduction of additional courses, increase and/or variation in intake capacity of seats in the existing technical institutions. While dealing with the matter relating to proposal for affiliation, the State Government and affiliating University are also required to submit their views in that respect as contemplated under Clause 4.3.3. Under Clause 6.2.3, the evaluation reports of the Regional office are required to be sent to the Headquarters of AICTE within 15 days from the receipt of such proposals, complete in all respects including the views of the State Governments and affiliating University, which are required to give reasons and justification to substantiate their stand. The hearing committee of the council is expected to meet every month and decide the cases in accordance with the provisions of Clauses 6.2.5 and 6.2.6. This is a crucial stage where the council can recommend for approval, require visit of the expert committee or reject the proposal on the grounds as it being appropriate. Clause 6.2.10 further mandates that decision on grant of approval or otherwise shall be communicated to the applicant society, trust, institution throughout the year.
53. Of course, it is essential for the council to intimate the fate of their application to the applicant well in time so as not to take away their right to pursue an appropriate legal remedy. They need to be cautious of this aspect and essentially should inform the concerned institutions at least two weeks in advance of the cut-off date.
54. However, the applicants whose applications are received by the council on/or before 31st December, 2007 shall be eligible for starting new programme or variation in intake of seats for the academic year 2008-2009. All other letters of approval issued for application received after 31st December, 2007 shall be eligible for the next academic year. In other words, this rule requires completion of the entire process and due communication to the applicants within the period of six months as 30th June, 2007 has been fixed as cut-off date. The entire scheme of this document containing regulation which has the force of law and is binding on all concerned, requires every step to be taken within a stipulated time. Obviously, the purpose for specifying period is to ensure that the entire process of approval or declining the approval should be completed well within the prescribed time frame to ensure completion of admission process and commencement of courses on the dates declared. For the year 2007- 2008, admissions were to close on 17.8.2007, 22.8.2007 and 31.8.2007, for MCA-PGD, MBA/MMS/PGD and medical courses, respectively. Similarly, for the academic year 2008-2009, last date of admission for MCA-PGD,MBA/MMS/PGD and Engineering respectively are on 30.7.2008, 11.8.2008 and 26.8.2008 and courses are to commence from 4.8.2008, 18.8.2008 and 28.8.2008 respectively. It will not be appropriate for the court to require the parties including the authorities to act contrary to the framed rules and the notifications issued by the concerned authorities. Time is of essence in professional courses, thus, to curtail or to interfere with the admission process beyond the specified time will neither be just nor fair. We have already discussed in some detail that it necessarily has adverse effect of the rule of merit -cum-preference. The example cited by us is one of such instances and since the admissions are made in an undue haste not only that the meritorious candidates are not able to get admission to colleges of their choice but even the management of the college are able to manipulate the admission because of the short notice for admission to the students at large. All these inequities and adverse results flowing from the delayed actions, even in equity would tilt against the petitioner institution whose seats are very limited. The larger interest, thus, must prevail over a limited private interest.
55. Before we proceed to record our synthetical conclusion and issue final directions in regard to the matters in issue before us in these cases, it needs to be noticed even at the cost of repetition that all the expert bodies viz. AICTE as well as Directorate of Education in consultation with the departments of the State regulating the process of admission and maintenance of standards of education had notified as a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. There has to be some compelling circumstances and grounds before the court to interfere with the prescribed schedule. It is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisment to the extent of laying down entirely new schedule. Merely because there has been some delay on the part of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. The admission process for the current academic year is already over and the academic session has commenced. To permit commencement of new courses after commencement of academic session or to restart the admission process all over again would neither be just nor fair in conformity with law. There will be no sanctity to this legally binding documents if every year the dates have to be altered by the court. This attains some significance in view of the fact that in number of earlier cases, the Supreme Court as well as various Benches of this Court have directed strict adherence to the admission schedule and commencement of courses.
56. We have already noticed in some length that no irreparable loss or prejudice is being caused to the institutions particularly after commencement of terms. The rule is to follow the notification and exception is to direct its variance. We are of the considered view that upon correct analysis of the above enunciated law, present cases are not one's which would justify interference by this Court in the current academic year. There has to be some exceptional and compelling circumstances before the court can find fault with exercise of statutory power by the Council as well as the Director of Technical Education in fixing these cut-off dates. These dates essentially are sacrosanct and, therefore, they should be adhered to. There is some inconvenience to the institutions for the current year merely because some seats may remain vacant would not justify judicial intervention as it inevitably result in defeating merit-cum-preference principle, timely commencement of courses, undue haste and manipulation of admission process by the institutions and lowering the academic excellence. Moreso, in the case of Harish Verma and Ors. v. Ajay Srivastava and Anr. : AIR2003SC3371 , the Supreme Court while directing that only majority view given in a judgment would be a binding precedent, further set aside the judgment of the Full Bench of the Rajasthan High Court, holding that the regulations framed by the Medical Council of India had the force of law and they should be adhered to and even struck down and set aside the admission given contrary to such provision. It is also the obligation of the concerned authorities, Central or State to ensure that professional education should be made accessible on criteria of merit and preference to all eligible students on uniform basis. In other words, students should have an equal opportunity of indicating their preference relatabale to their merit.
57. As a result of the various orders passed by the court from time to time, most of the petitioner colleges have already taken complete benefit and the interest of the admitted students can hardly be put to any disadvantageous position now at this stage but the fact of the matter is that issuance of certain directions re-emphasising the directions issued by the different Division Benches of this Court and more particularly, strict need for adherence to the notified schedules would be necessary. We have no hesitation to record that may be for the present academic year 2008-2009 where the orders of the court have attained finality, the court may have to balance the law and equity but for the coming academic years there is hardly any possibility of not arising of such disputes. Boni judicis est causas litium dirimere, where it is the duty of a good Judge to remove the causes of litigation, there it is also a settled principle of law that direction or order of the court would do no prejudice to any party. Adhering to the principles stated, we are not interfering with the admissions granted for the academic year 2007-2008 under the orders of the court but without any hesitation, we would issue the following directions for future including academic year 2008-2009.
58. With above recorded findings and conclusions we issue directions as follows:
(a) As far as all colleges of the petitioner institutions/trusts for the academic year 2007-2008 are concerned, the students who were admitted in furtherance to orders of the court against variation in intake of seats duly approved by the Council, their admissions would not be disturbed.
(b) The colleges/institutions shall ensure that in the courses already undergone by them, there is no deficiency. If the students have joined their respective courses late, they shall be required to make up the deficiency.
(c) For the current academic year 2008-2009, we see no reason to interfere with the notification issued by the All India Council of Technical Education or Directorate of Technical Education. The said courses shall commence strictly in accordance with the schedule and no institution which is not duly approved by the AICTE with the concurrence of opinion by the Directorate of Technical Education and the affiliating University as per the requirements of law upto 30th June, 2008 shall admit any students. However, as per the stand taken by the AICTE after completing the requisite formalities and satisfying the authorities concerned in regard to infrastructure and educational standards, such seats would be available to have for the next academic year. The AICTE and other authorities are permitted to adhere to the schedule notified by them. In fact, it is directed that henceforth, there shall be strict adherence to the schedule specified in the law and hand-book printed by AICTE in exercise of its statutory powers.
(d) The AICTE and all other concerned authorities are hereby directed to communicate to every applicant institution, university or trust about refusal and/or grant of approval of their proposal by 15th June of every academic year where the applications have been received in terms of its brochure upto 31st December of the previous year, regarding admissions for the academic year.
59 These directions are necessitated for the reason that reasonable time is available to the aggrieved party to invoke the process of law if they choose to challenge any order adverse to the interest of the college, institution or trust. All authorities concerned shall abide by above directions and the directions issued by the court in the case of Atharva Institution of Management Studies (supra) as well as ensure that academic courses are commenced on the notified date. Every possible effort should be made not to grant any admission midstream or after the date of commencement of courses.
60. It is expected of the All India Technical Council of India to ensure that its functioning would enable the institutions making applications prior to 31st December of the previous year to know the fate of their applications well in time. It is also expected of the affiliating University and the Director of Technical Education of the State to submit their opinion well in advance and in accordance with the regulation so as to enable the AICTE to take timely action and avoid prejudice to any applicant institution or trust.
61. Vide order dated 26th March, 2008, all the above cases were listed before the Full Bench for settling the controversies in the present case including answering the question of law. Thus, we had heard all the cases on merits. For the reasons recorded above, all the writ petitions are disposed of in terms of the directions stated hereinabove. However, in the facts and circumstances of the case, we leave the parties to bear their own costs.