Swati R Khinvasara Vs State of Maharashtra - Citation 924954 - Court Judgment

Judgment:

JUDGMENT (Per A.M. Khanwilkar, J.):-

1) By this common judgment, we propose to dispose of the above mentioned matters together as the same involve common issues.

2) The first Writ Petition (Writ Petition No.1430 of 2011) is filed by the student who has passed her 12th Standard examination (Senior School Certificate 2011) from Central Board of Secondary Education (CBSE) with 88.4% marks, but has not succeeded in getting admission in Government Law College at Mumbai (for short, hereinafter referred to as 'GLC'). The grievance in this petition, as originally filed, was in respect of the method adopted by respondent- college of deducting 5% marks of candidates, who have passed the qualifying examination from the Board other than the Maharashtra Secondary School Board (hereinafter referred to as "the Maharashtra Board"), for preparation of merit list of students to be admitted in the First Year of Five years Law course. It is stated that the said petitioner was desirous of getting admission in the GLC. For that reason, she obtained a Transfer Certificate and Migration Certificate from her MGD Girls' School at Jaipur. Thereafter, she filled up the form for taking admission in Five Years Law Course in GLC. According to the said Petitioner, in spite of having secured such good marks, her name did not find place even in the third merit list published on 4th July, 2011. To her utter surprise, she noticed that the candidates who have secured less percentage than 88.4%, their names were mentioned in the said list. On enquiry, the petitioner was informed that since she has passed 12th standard from a Board other than Maharashtra Board, as in the case of similarly placed candidates, her 5% marks have been deducted while reckoning her comparative merit position in the merit list. On further enquiry, the petitioner was informed that the GLC resorted to such method on the basis of instructions issued by the Joint Secretary, Higher and Technical Education Department of Government of Maharashtra vide communication dated 14th June, 2011. The said communication is originally in Marathi. The petitioner has provided true translation thereof at Exhibit 'D' to the petition. However, the translation is inaccurate. We would reproduce the original Marathi as well as official translation of the said communication. The same reads thus:

TRUE TRANSLATION - MARATHI TO ENGLISH

"Government of Maharashtra

Number: Miscellaneous 2011/ 152/11 D/ CE-1 Higher & Technical Education Department, Mantralaya Extension Building

Mumbai - 400 032.

Date : 14 June 2011

Director

Directorate of Higher Education

Central Building, Pune

Subject: Regarding admission of Five Years Law Course

Reference: Letter No. GLC/ Admission/

2011/ 406 dated 4th June 2011 of

Principal, Law College.

As per the letter under reference on the abovenoted subject, it is informed that since the year 1996, as per practice, a provision of five percent additional marks limit is made for the students passed 12th (Standard) from Educational Boards other than Maharashtra Boards, for getting admission to five years course in the Government Law College, Mumbai. In this regard, the local Management committee of the College established as per the Universities Act, took a decision, from time to time, and in view of the objection of Bar Council of India in this regard, in the year 2005, took a conscious decision to keep a limit of five per cent, for five years Law Course. While taking the said decision, it was also elaborately discussed on the issue as to whether this would result into discrimination in respect of the students passed 12th Standard examination from Maharashtra Board or else, which has been noted down in the minutes.

From the documents submitted to the Government it appears that following members were participated in the meetings dated 17th April, 2006 and 13th April, 2005.

Meeting Meeting dated dated 17/4/2006 13/4/2005

Hon'ble Dr. Vijay Justice D. R. Kulkarni Dhanuka

Adv. Chavan Principal Dr. Rao

Professor G. Hon'ble Justice N. Paravati Dhanuka Professor Adv. Rafiq Mokal Dada, Senior Advocate

Prof. Rachita Adv. Rajiv Radho Chavan S. G. Dalvi, Prof. G. N. Clerk, Paravati Incharge

Prof. Dr. P. Professor R. Rao Mokal ---------------- Prof Rachita Radho

---------------- S. G. Dalvi

In this regard, Shri Sadavarte had lodged one complaint with Human Rights Commission. However, on perusing the order dated 12th February, 2011 of Human Rights Commission, it is seen that it (Human Rights Commission) has neither issued order or made recommendation as to whether such system (practice) should be kept continued or stopped. However, the Commission has suggested that the order may be obtained from the State Government or University, as the case may be. And the Commission has mentioned that the said complaint does come within the purview of the Human Rights Commission and the same is not worth taking into consideration by the Commission.

To pass orders on the issues namely - to give admission in the college, to keep reservation in that regard, management share (quota), etc., are the powers pertaining to the University. Hence, the said subject of Law College falls within the ambit of the University, an action of submitting appropriate proposal to the University and to obtain orders thereon may be taken and the Human Rights Commission may be informed to that effect. In the meantime, prevailing procedure shall be continued.

Sd/-

Sadashiv Shivdas

Joint Secretary, Govt. of Maharashtra

Copy:-Principal, Government Law College, Mumbai "

3) The said petitioner thus having realised that she may not get admission in the Respondent No.2 college rushed to this Court by way of the present Writ Petition, which was verified by her on 8.7.2011 but presented in the Registry of this Court on 11.7.2011. In the Petition originally filed, the only grievance made is about the unfairness in deducting 5% marks of students who have passed 12th standard examination from Boards other than the Maharashtra Board. It is contended that the merit list of candidates is prepared on the basis of directions contained in the above said letter which has no force of law and in any case, such artificial distinction is arbitrary and illegal. According to the said petitioner, the State of Maharashtra, at best, could reserve certain percentage for students from Maharashtra, that too by making a law. However, it is not open to deduct 5% marks of students merely because those students have passed the qualifying examination from Boards other than the Maharashtra Board. The next ground in the writ petition is that the policy of deducting 5% marks of students who have passed the qualifying examination from Boards other than the Maharashtra Board is in violation of the fundamental right of the citizens to travel and settle down in any part of India. On that basis, the said petitioner prayed for the following substantive reliefs in the original writ petition:

"a) That a writ of certiorari or any other writ or direction he issued calling for the records and files of the case and after going into the legality and validity of the decision contained in letter dated 14th June 2011 (Exhibit "D") to deduct 5% marks while giving admissions to students who have passed their XIIth standard examination from any board other than Maharashtra Secondary School Board, quash and set aside the same.

b) That writ of mandamus or any other writ, order or direction be issued ordering and directing respondents 1 and 2 to give admission to the petitioner in the first year law course on the basis of actual marks secured by the petitioner and not after deducting 5% of marks.

c) That the respondent 1 and 2 be ordered and directed to carry out if necessary, fresh admission process for 1st year law course and without deducting 5% marks of students who have passed XIIth standard examinations of any board other than Maharashtra Secondary School Board.

d) ...

e) ...

f) ...

g) ..."

4) The said petition was listed before the Court on 14.7.2011 when the Court proceeded to record the statement made by the Assistant Government Pleader appearing for the State as well as the Law College. The said order reads thus:

"The learned Asst. Government Pleader appearing for the Government of Maharashtra states that the Government of Maharashtra withdraws the letter dated 14-6-2011, copy of which is at Exh.G to the petition.

2. It has also been pointed out by the learned Counsel appearing for the Petitioner that in the Ordinance Nos.5077 and 5078 framed by the University regulating admission to the three Years LL.B. Degree Course and Five Years LL.B. Degree Course there is no provision for making reservation for Backward Class candidates and other categories. However, the Prospectus issued by the University provides for reservation for Backward Class candidates as also other categories. He also pointed out that there is no provision for faculty wise reservation of seats in any Law or in any instrument having the force of Law. That in five years course any seat will be reserved faculty wise is also not mentioned in the Prospectus.

3. The learned AGP appearing for the State and the Law College stated that in view of what has been pointed out by the Petitioner, the Respondents Nos. 1 & 2 will rework the admission to all the seats in five years course and shall consider the claim of the Petitioner also in accordance with law. Statement is accepted.

4. In our opinion, in view of this statement, it will be appropriate to grant one week time to the Respondents to do the needful. Put up after one week."

5) The matter was then moved on 19.7.2011 on the basis of a praecipe. However, no order was passed on the said praecipe. Thereafter, the companion petition was produced by the petitioners therein on 20.7.2011 praying for interim protection as they apprehended that their admission was likely to be cancelled by the College on the basis of the statement recorded in the order dated 14.7.2011. The said Writ Petition being Writ Petition (Lodging) No. 1459 of 2011 was ordered to be placed on 21.7.2011 alongwith the former petition.

6) The second Writ Petition (Lodging) No.1459 of 2011 has been filed by 43 students of the College who have already secured admission to the first year of Five years law course on the basis of the merit list notified by the GLC from time to time. According to these petitioners, the College ought not to have made the statement before the Court to jeopardise their interests, that too without giving them any opportunity or prior notice whatsoever. Accordingly, the petitioners in the second writ petition have prayed for the following substantive reliefs:

"a) a writ of certiorari or any other appropriate writ, order, direction in the nature of certiorari be passed in respect of the papers and proceedings pertaining to the admissions given to the students in the Government Law College, first year of five years B.L.S.LL.B. Course to cancel, recall / expunge the said statement made on behalf of the Ld. AGP in the said Bombay High Court, OOCJ, Writ Petition (L) No.1385 of 2011.

b) a writ of mandamus or any other appropriate writ, direction and order in the nature of mandamus be issued ordering and directing respondent No.1 to set aside, cancel and/or not to disturb the admissions granted to the petitioners students.

c) ...

d) ...

d) ... "

7) Besides the above said cross writ petition filed by the students who have already been admitted to the first year of five years Law course in the GLC, other similarly placed students have filed four separate Chamber Summonses in the former writ petition essentially for impleading them as respondents therein. Even these applicants support the stand of the petitioners in the second Writ Petition filed by 43 students already admitted to the course. In each of these Chamber Summons, the concerned applicants have stated on affidavit that their admission to the first year of Five years Law course should not be disturbed and at any rate at the instance of the petitioner in the first writ petition, who waited to file the said writ petition till their admission process was completed. The said applicants in their respective affidavits have further stated that each of them having secured good marks on the basis of which they could have got admission in any other College and even to professional courses, which option they have given up as they got admission in the GLC. As a result, any adverse order by the Court, at this stage, would cause them irreparable loss as they would not only be thrown out of the GLC but may not be in a position to get admission to any other course at this belated stage since the academic year of all other courses including the Five years law course has already commenced since long. All these applicants have prayed for dismissal of the first writ petition i.e. Writ Petition No.1430 of 2011.

8) As a consequence of the plea taken by the applicants in the Chamber Summonses and the cross writ petition filed by the 43 students, the petitioner in the former Writ Petition decided to amend her Writ Petition to urge further grounds to challenge the admission process and also pray for further substantive reliefs. The Court on 21.7.2011 allowed the petitioner in the former petition to amend her Writ Petition. Pursuant to the said liberty, the said petitioner has added further grounds. On 21st July, 2011, when all these mattes were listed for hearing, attention of the Court was invited to a notice issued by the In-charge Principal of the College on the basis of her understanding of the order of this Court dated 14.7.2011. The said notice at Exhibit 'E' of Chamber Summons No. 201 of 2011 reads thus:

"NOTICE

Pursuant to the order dated 14thJuly 2011 passed by the Hon.Division Bench of Hon.Justice Shri Deshmukh and Hon. Justice Shri. Ketkar in Writ Petition No. (L) 1385 of 2011, it is hereby informed that the entire admission process for the V Year 1st Year LL.B. has been directed to be reworked as per University Ordinance NO. 05078.

All students who have been admitted / provisionally admitted should make a note.

Regular classes for V Year 1st Year will commence/resume after the Hon. High Court order.

Date: 14th July 2011

I/c. PRINCIPAL"

9) In the context of this notice, grievance was made by the counsel appearing for the students of the College already admitted to first year of Five Years Law Course. Considering their grievance, the Court passed the following order dated 21st July, 2011.

"List this petition alongwith Writ Petition (Lodging) No.1385 of 2011, on 28.7.2011.

2. We are informed by the Counsel appearing for the Respondent College that the reworking of the merit list is in progress and it may take some time to finalise the same. We hope and trust that the said exercise will be completed not later than one week from today. The reworked merit list be placed before the Court on the next date of hearing alongwith an affidavit of an authorised officer of the College. All questions raised in the respective petitions as well as by interventionists will be considered on its own merits at the appropriate stage. In the meantime, however, the question of stopping the classes of the first year LL.B. 5 year course does not arise. The classes can continue with clear understanding that the students already admitted until the passing of the order dated 14.7.2011 will have to abide by the final decision in the respective writ petitions.

3. In view of this order, the In-Charge Principal, who is present in Court, assures to immediately withdraw the Circular issued on 14.7.2011 and notify that the concerned classes will be commenced from tomorrow for the students already admitted to the course."

10) As per the amendment carried out in the former writ petition, it is now contended by the said petitioner that the impugned circular dated 14.6.2011 is not issued by the State Government in exercise of powers under Article 162 of the Constitution of India. Therefore, it has no force of law. Further, the said circular is implemented only in GLC and not in any other Law Colleges. Thus, it results in discrimination which is hit by Article 14 of the Constitution of India. It is further contended that the impugned circular dated 14th June, 2011 is not based on any data to indicate that the students who pass qualifying examination from the Board other than the Maharashtra Board get liberal marks. Thus, there was no material to justify the deduction of 5% marks of the students who passed the qualifying examination from the Boards other than the Maharashtra Board. Moreover, the other Boards such as CBSE and ICSE are not even consulted nor any basic data is collected from the said two Boards. The next ground taken by way of amendment is that the Mumbai University has passed an Ordinance in exercise of powers under Section 53(1) of the Maharashtra Universities Act, 1994. The relevant Ordinance for admission to the first year of Five years Law course, is Ordinance No.5077. That does not provide for deduction of 5% marks of the students who have passed their HSC examination from the Boards other than the Maharashtra Board. In addition, it is stated that the prospectus issued by the GLC for the year 2011-2012 which refers to the eligibility criteria also does not provide for deduction of 5% marks. Further, the Ordinance No.5077 does not provide for reservation of 50% seats for reserved category candidates. Thus, the reservation of 50% seats provided by the GLC was in violation of the said Ordinance No.5077. It is then contended that neither the prospectus nor the impugned circular dated 14.6.2011 provides that the admission to the first year of Five years law course be made on faculty- wise basis which is the method followed in preparation of the merit lists by the College. It is further stated that the reservation provided for widow/deserted girl students (self candidates) is without application of mind and further that the condition specified in the prospectus of producing original caste certificate by the students is contrary to the decision of the Apex Court in Madhuri Patil's case. On the basis of the above additional grounds, the petitioner in the former petition has prayed for following additional substantive reliefs:

"c1) that a writ of mandamus or any other writ, order or direction be issued ordering and directing the respondent No.1 and 2

i. To carryout fresh admission process by not reserving 50% of the seats in first year of five year law course for backward category candidates. ii. Not to give admission in first year of five year law course by providing for quota for different faculties such as Arts, Commerce, Science, etc.

iii. To give admission to the first year of five year law course strictly as per ordinance No.5077. iv. Not to provide for reservation for widow/deserted girl students (self candidates)"

d2) ....."

11) Accordingly, both the abovesaid Petitions and the Chamber Summonses were notified for hearing on 28.7.2011. On that day, the Counsel appearing for the College produced the reworked merit list. The GLC prepared four sets of merit lists. One, the general merit list without deducting 5% marks and without bifurcating faculties. The remaining three lists are without deducting 5% marks but facultywise i.e. Arts, Science and Commerce respectively. The said lists were made over to the Counsel appearing for the respective parties and to the Court. At the request of parties, the hearing of the matter was deferred to next day. Accordingly, the hearing of both the petitions and Chamber Summonses proceeded together on 29th July, 2011. During the arguments, the Counsel appearing for the petitioner in the former writ petition made a point that the respondents, in particular the College, was offering justification without filing any reply affidavit. Moreover, the College having made statement before the Court on the earlier occasion, it was not open to it to contend to the contrary. In the first place, the petitioner in the former petition has not chosen to file any reply-affidavit to counter the assertions made in the affidavit in support of the respective Chamber Summonses. As a result, the factual position asserted in the said affidavits and more so the documents appended to the respective Chamber Summonses can be relied to answer the controversy, even if the Government or the college has not filed any reply-affidavit in the former Writ Petition. Further, considering the urgency of the matter, the parties, however, agreed to proceed with the hearing on the basis of the documents already on record. It was understood by all concerned that the question as to whether the College can be allowed to take a stand contrary to the one stated in the earlier order was a matter which could be answered at the appropriate stage. It was also made clear to the parties that the documents on which reliance is placed by the respondents or the applicants in Chamber Summonses, the correctness thereof can be ascertained on the basis of the original record produced in Court by the officers of the college / university. Moreover, as the issues raised by the petitioner were general in nature, the same could be answered on the basis of documents already on record. With this clear understanding, the matter was fully argued by the Counsel appearing for the respective parties.

12) The first question is about the effect of the statement made by the Counsel for the College, as recorded in order dated 14th July, 2011. Going by the plain wording of the said order, it is noticed that the first statement made by the AGP was that the Government was withdrawing the letter dated 14th June, 2011. So far as this statement is concerned, let us examine as to whether it would make any difference. The letter dated 14.6.2011 issued under the signature of Joint Secretary, Government of Maharashtra merely restates the position which was obtaining since year 1996 and more so, with reference to the decisions of the Advisory Committee of the College dated 13th April, 2005 and 17th April, 2006. This communication is obviously in response to the letter sent by the In-charge Principal of the GLC dated 4th June, 2011 seeking guidance from the higher authority. Further, it refers to the order of the Human Rights Commission dated 12.2.2011 and observes that the said order does not in any manner deal with the question as to whether the arrangement of preparing merit list of the candidates to be admitted to the first year of five years law course in the College by deducting 5% marks should be continued or otherwise. It is then stated that the present arrangement be continued till appropriate instructions are given by the University or the State Government. Even if this letter has been withdrawn by the respondents, that would not affect the admission process already proceeded with by the GLC on the basis of the prevailing norms which were in force since year 1996. As a matter of fact, the petitioners have not chosen to challenge the decision taken in the year 1996 by the concerned authorities on the basis of which the arrangement of preparing merit list of candidates by deducting 5% marks of candidates who have passed the qualifying examination from the Boards other than Maharashtra School Board was adopted. Neither the decisions of the Advisory Committee of the Respondent College dated 13th April, 2005 or 17th April, 2006 as the case may be, have been challenged by the Petitioner. So long as the admission process was undertaken in conformity with the prevailing norms, the withdrawal of the communication dated 14.6.2011 issued under the signature of Joint Secretary referred to above will not make any difference. Thus, the first statement made by the AGP does not militate against the respondents or the students who have already been admitted in the GLC by following the procedure which was in force since year 1996 and in particular based on the decisions of the Advisory Committee referred to above.

13) The next statement of the A.G.P. recorded in the said order is in response to the issues raised by the advocate for the Petitioner in the former petition at the time of hearing of that petition on 14th July, 2011. It refers to the contention of the said Petitioner that the Ordinance Nos. 5077 and 5078 framed by the University to regulate the admission to the law courses do not make any provision for reservation for backward class candidates and other categories. In spite of that, the prospectus of the University provides for reservation for backward class candidates and other categories. The advocate for the petitioner had also pointed out to the Court that the facultywise reservation of seats is not provided for in any law or in any instrument having the force of law nor it is so referred to in the prospectus. With reference to the said submission, the AGP appearing for the State and the college made statement that the said respondents would rework the admission to all the seats in the five years law course and would consider the claim of the petitioner in accordance with law.

14 Even on a fair reading of this statement, it cannot be construed to mean that the said respondents have conceded before the Court that the admission process which is already completed and on the basis of which the admitted students have even started attending the lectures from 4th July, 2011 was to be treated as cancelled and de novo admission process was to be commenced. This statement, however, is an assurance given to the Court of preparing a fresh merit list, keeping in mind the submissions of the petitioner in the former petition. Further, after such exercise was undertaken the matter could be examined further by the Court on merits. Indeed, neither the State nor the respondent College could have taken a stand which were to affect the crystallised rights in favour of the students who have already been admitted upon complying the necessary formalities on the basis of the merit list published from time to time before 14th July, 2011. Admittedly, none of the admitted students were parties to the said petition either in their individual capacity or, for that matter, in representative capacity; nor were given opportunity by the State or the College before making such statement. In our opinion, therefore, the statement made on behalf of the State and the College even if it is to be treated as a peremptory statement, was only to assure the Court that fresh merit list will be drawn or reworked on the basis of the issues raised by the Petitioner in the former petition. No more and no less. At any rate, the said statement cannot bind the students already admitted to the course who were not represented before the Court. Besides, what is relevant to notice, is that, now, the students who have already been admitted to the first year of five years Law course in the respondent-College from amongst the candidates included in the merit lists published by the College from time to time before 14th July, 2011 as well as the students who have legitimate expectation of getting admission on the basis of the procedure followed by the College of providing 5% deduction of marks and faculty-wise merit position, have rushed to this Court by way of Chamber Summonses and a substantive writ petition. They filed those proceedings soon after they realised that the In-charge Principal of the Respondent College hastened to issue the notice dated 14th July, 2011 (reproduced in paragraph 8 above), informing all concerned that the admission process for the first year of five years law course will be reworked as per the University Ordinance No.05078 and the students who have been admitted / provisionally admitted should take notice thereof. The said notice further declares that the regular classes of the first year Law course will commence only after the High Court order. The said students have rushed to this Court questioning the said notice and also asserting that the admission process already completed cannot be unsettled without considering their stand. In this backdrop, the matter will have to be examined further.

15) Reverting to the statement of the AGP for the State and college recorded in order dated 14th July, 2011, it also refers to Ordinance No. 5078. On the basis of the said statement, the In-charge Principal of the Government Law College issued notice dated 14th July, 2011. It refers to the fact that the entire admission process has been ordered to be re-worked by the Court as per University Ordinance No. O5078. In the first place, no such direction has been issued by the Court in the said order dated 14th July, 2011. The Court merely recorded the statement made by the counsel for the State and the Law College as referred to above, and went on to accept the same.

16) Be that as it may, the In-charge Principal of the college, on complete misunderstanding of the statement made before the Court, decided to re-work the entire merit list as per Ordinance 5078. Let us turn to the said Ordinance. It reads as follows:-

"For admission to the First Semester of 3 years LL.B. or 5 years LL.B. Course of the candidates securing more than 40% but less than 45% of marks at the respective qualifying examinations (with further 5% relaxation for the candidates belonging to SC/ST categories) the University may conduct Common Eligibility Examination. The Common Eligibility Examination may be conducted either through University Department of Law or through any of the assenting Law Colleges affiliated to the University of Mumbai on behalf of the University of Mumbai as shall be recommended by the Board of Studies in Law. The candidates passing in such examinations shall become eligible for admission to the respective Law Courses and may be admitted in any of the Law Colleges conducting the respective Courses, subject to the availability of the admissions / seats in the College for the Course and the Class."

17) On plain language of this Ordinance, we have no hesitation in taking the view that the same cannot be made the basis to re-work the existing merit list. This Ordinance envisages conducting of common eligibility examination for the candidates who have secured specified marks; and, depending on the results of the said examination, the said candidates may be admitted to the course in the order of merits, subject to availability of seats in the college. It is neither the case of the University nor of the college that it intends to have such common eligibility examination of all the aspiring candidates. Moreover, it is too late in the day for the said authorities to conduct common eligibility examination after the commencement of the academic year in July, 2011. On the other hand, the admission process in question has been taken forward on the basis of the marks obtained by the aspiring candidates in the respective Board examination(s) and not on the basis of common eligibility examination, which is peculiar to Ordinance 5078. Even for this reason, the issues now raised by the interveners / applicants in the former petition and the cross petition filed by the students, who are already admitted and/or likely to be affected by any new arrangement, will have to be considered on its own merits. Thus, the unilateral statement made by the State or the college before the Court cannot affect the rights of the admitted students, and more so, when the order dated 14th July, 2011 is not an order issuing direction to the college to cancel the admissions already granted, much less upon adjudicating the contentious issues on merits. For the aforesaid reasons, the stand taken by the petitioner in the former petition that the State and the college are bound by the statement recorded in order dated 14th July, 2011 does not take the matter any further.

18) The students, who have already been admitted and/or likely to be affected by any new arrangement at this juncture are justified in relying on the exposition of the Full Bench of our High Court in the case of Nachane Ashwini Shivram & Ors. v. State of Maharashtra, reported in 1998(2) Mh.L.J. 234. The Full Bench examined the question raised before it, as to the efficacy of the decision of the Court which is passed without giving opportunity of being heard to the students, who were likely to be affected by the order, can such order not suffer from the vice of being void ab initio and needs to be ignored. That question has been answered in the affirmative by the Full Bench.

19) As aforesaid, in the present case, even on strict reading of the contents of order dated 14th July, 2011 the same cannot be construed to mean that the Court has issued any order or direction as such, much less of cancelling the already concluded admission process. Similarly, the statements of AGP as recorded in the order dated 14th July, 2011, by no standards, result in cancellation of the admissions already completed till 14th July, 2011. So long as such formal order is not passed by the Court, it is inconceivable as to how the respondents in the writ petition, and more particularly the students likely to be affected, are estopped from contending that the admission process completed till 14th July, 2011 was legal and proper. Whether that plea should be accepted or otherwise is a matter to be answered by the Court on its own merits. In other words, the two statements made by the AGP as recorded in the order dated 14.7.2011 cannot come in the way of the students who have already been admitted or the candidates who have legitimate expectation of getting admission upon following the existing procedure. It is open to them to argue that no interference at the instance of the petitioner in former petition was warranted, as the procedure followed by the College for preparing the merit list was just and valid.

20) We may now, therefore, turn to the preliminary issue raised by the interveners / applicants in companion Chamber Summonses and the petitioners in the cross petition. According to them, the petitioner in former petition is not entitled for any relief whatsoever and her petition should be dismissed at the threshold on the ground of laches. According to them, the merit lists prepared by the college were in adherence to the procedure which is being followed since 1996. In any case, the college had announced its intention to follow the stated procedure which was duly published and displayed on the notice board of the college, as also on the College Website referring to the fact that the candidates from Boards other than Maharashtra Board have to secure 5% more marks than the cut-off percentage for Maharashtra Board and of providing reservation up to 50% for reserved category from Maharashtra as per the Government Resolution. Even the notice displayed on the notice board of the college before commencement of the admission process clearly spells out the intent of the college about the method of preparation of merit lists. Thus, the admission procedure to be followed by the college was in public domain. The print-out of the information published on the college website was produced before us. In addition, the notice published on the college notice board (Exhibit 'H' to Chamber Summons No. 205 of 2011), reads thus:-

"GOVERNMENT LAW COLLEGE

'A' Road, Churchgate, Mumbai-400 20

Website:www.glcmumbai.com Mumbai: Code no.91-022 E-mai ID: [email protected]

Telephone : 022-22041707 Fax: 022-22851315

NOTICE NO.

ADMISSION PROCEDURE

FIRST YEAR B.L.S. LL.B. COURSE 2011-12

FIVE YEARS LAW COURSE

ELIGIBILITY H.S.C. or any other examination recognized equivalent thereto by Maharashtra Board.

OPEN CATEGORY

(Including OBC/SBC/VJNT) Minimum 45% at the 1st attempt

RESERVE CATEGORY

(only SC/ST) Minimum 40%

TOTAL SEATS AVAILABLE 160

50% Reservation for reserved categories from Maharashtra State only.

3% Reservation as per University Circular No. Aff. / Recog. / 207 of 2005 dt. 30/5/2005 for the categories as under

1. Ward of Central/State Government (sic) on Transfer.

2. Ward of Defence Personnel in Service/Ex Serviceman.

3. Students having excellent performance at State/National level in sports & or Cultural events.

4. Physically handicapped/Disabled Students.

5. Widow/deserted female Students (personally).

6. Ward of Freedom Fighters.

ADMISSION WILL BE GIVEN STRICTLY ON

MERIT

Last year i.e. Academic year 2010-11 (Five Years Law course)

Cut-off percentage in open category for students from Maharashtra State Board

Commerce Science Arts 84.50 80.00 78.00 Cut-off percentage for students from all Other Boards Commerce Science Arts 89.80 85.00 83.00

Prospectus & Admission Form will be issued after the declaring the 12th HSC (Maharashtra Board) results, tentatively around the 1st week of June. Visit the GLC Website for updates.

I/C Principal"

21) A similar procedure has been notified in respect of admissions to Three Years Law Course. That position has been stated on affidavit by the interveners / applicants which has remained uncontroverted. Besides, it is stated that the first merit list was published by the college on 20th June, 2011, which was not only displayed on the college notice board but also on college website. The first merit list unambiguously spelt out the procedure adopted by the college for admissions. That list was followed by the second merit list published on 23rd June, 2011, which was also displayed on the college notice board and college website. It was followed by third merit list on 27th June, 2011 and fourth merit list on 29th June, 2011. The successive merit lists issued by the college in respect of aided seats clearly spell out the procedure followed by the college for preparation of merit lists of candidates to be admitted in the college. These lists were displayed from time to time on the college notice board and also on the college website. The college thereafter issued first merit list in respect of unaided seats on 30th June, 2011 followed by second merit list of unaided seats on 4th July, 2011 and third on 7th July, 2011.

22) In substance, it is the case of the interveners / applicants and the petitioners in the companion Writ Petition that enough publicity was given about the procedure to be followed by the college for admission to first year of Five Years Law Course and each of the aspiring candidates was made fully familiar with the said procedure. Thus, it is too late for the petitioner in the former Writ Petition to approach this Court only on 11th July, 2011, after being convinced that she would not get admission as per the procedure followed by the college for admission. The Writ Petition was presented in this Court on 11th July, 2011, much after 207 students were already admitted on the basis of successive merit lists published by the college, and more so, after the first semester of the course commenced from 4th July, 2011. Notably, the students, who have been admitted to the college, whose name found place in the merit lists published by the college, most of them are students who reside outside the Mumbai city, as also State of Maharashtra. For that reason, the explanation offered by the petitioner in the former Writ Petition about her inaction and delay in filing the Writ Petition is nothing short of an after-thought plea. And in any case, the settled position cannot be now unsettled at her instance.

23) Notably, the petitioner in the former Writ Petition has not made any reference to the notices published by the college from time to time, which were displayed on the notice board of the college as well as website of the college much before the admission process actually commenced, and in particular, before issuance of admission forms, nor has she made any reference to the fact that the successive merit lists published by the college were in adherence to the admission procedure already published by the college. All that the petitioner in the first Writ Petition asserts in her Writ Petition, is that, she was desirous of taking admission in Government Law College and she filled up the form. Then the petitioner goes on to say in paragraph 6 of the writ petition that the third list of admissions was published on 4th July, 2011; and she found that her name did not find place even in that list, whereas the names of candidates, who have secured less than 88.4% marks were mentioned therein and given admission by the college. It is only thereafter she enquired with the college, when she was told that the merit list was prepared by deducting 5% marks in respect of candidates who have passed qualifying examination from Boards other than Maharashtra Board; and that, at that time, she was given photostat copy of the impugned decision referred in letter dated 14th June, 2011, which provides for such deduction. We have no hesitation in taking the view that the above plea taken by the petitioner in paragraphs 6 and 7 of the writ petition is unacceptable.

24) It is intriguing to note that the said petitioner has chosen to amend the writ petition after the filing of accompanying Chamber Summonses in her Writ Petition, but she did not find it proper to deal with the above-said objection taken in the affidavit in support of the Chamber Summonses by amending the writ petition. In other words, it is indisputable that the college notified the admission procedure well in advance both on the college notice board as well as college website which was accessible to all the aspiring candidates; and it can be reasonably assumed that each of the aspiring candidates was fully familiar with the said procedure. As a mater of fact, the admission procedure followed by the college is in place for quite some time. Suffice it to observe that the petitioner has not disclosed the relevant and material facts, more so, to explain as to why the petitioner waited till 11th July, 2011, and allowed the admission process to be taken forward, culminating in completion of admission of at least 207 candidates out of 240 seats available for admission. It is well established position that, if a candidate participates in the selection process, with full knowledge of the drawbacks or illegalities in that selection process, and waits till the outcome of the said process, cannot be permitted to challenge that selection process at a later stage on the ground that the same is irregular or illegal only after he realises that he will not be selected. Applying the same analogy and considering the vague averments made in the writ petition, we hold that the former petition suffers from laches, and deserves to be thrown out at the threshold on that ground alone. In view of this finding, no further enquiry into the other questions raised by the petitioner in former writ petition is warranted.

25) Be that as it may, in the former writ petition, the original grievance was only with regard to the procedure of deducting 5% marks of the candidates who have passed the qualifying examination from Boards other than Maharashtra Board. By way of amendment, the said petitioner has now challenged the provision made for reservation of 50% of the total seats for reserved category candidates by the college while preparing the merit lists, and also the preparation of merit lists on faculty-wise basis. The sum and substance of the grievance of the said petitioner is that none of the above was permissible, as that mechanism was not backed by law.

26) We shall, first, deal with the challenge to the reservation provided by the college to the extent of 50% seats for reserved category candidates. The college has provided 50% reservation in consonance with the notice published before commencement of the admission process to the first year of Five Years Law Course for the academic year 2011-12, which is extracted, in its entirety, in the earlier part of the judgment. This reservation has been provided as per the directions issued by the State Government. Section 7(2) of the Maharashtra Universities' Act, 1994 is an enabling provision, which envisages that the University shall adopt Government policy and orders issued from time to time in regard to the reservation for Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes and other Backward Classes for the purpose of admission of students in the affiliated or conducted colleges.

27) The University, in the present case, in furtherance of its obligation to adopt the Government policy regarding reservation of seats for admission, had issued Circular No. BCC/29/301/1995 on the basis of Government Resolution dated 22nd June, 1995. The said Government Resolution reads thus:-

"ANNEXURE - A

TRUE TRANSLATION FROM MARATHI TO ENGLISH:

"Regarding reserving seats for "Special Backward Category" in all the educational institutions under control of Higher and Technical Education and Employment Department ........

Government of Maharashtra

Higher and Technical Education and Employment Department

Government Resolution No. : USG-1493/(2428)- UE-4.

Mantralaya Extension Building, Mumbai 400 032 Date : 22nd June, 1995.

Read : 1)Government Resolution, Higher and Technical Education and Employment Department No. USG -1493 / 2428 /UE-4, dated 23rd June, 1994 and even numbered Corrigendum dated ___ July, 1994.

2) Government Resolution, Social Welfare, Cultural Affairs and Sports Department No. CBC-1494/ M. No. 236/BCC-5, dated 13th June, 1995 and even numbered Corrigendum dated 15th June, 1995.

3) Government Resolution, General Administration Department No. BCC-1094/M. No. 68/94/16-B, dated 15th June, 1995.

Government Resolution : Taking into account the demand for granting special concession on the ground of Social, Economically and Educationally Backwardness, from some castes - tribes other than the community specifically declared as Scheduled Caste and Scheduled Tribe in the State, vide Government Resolution, Social Welfare, Cultural Affairs and Sports Department No. CBC-1494/M. No. 236/BCC-5, dated 13th June, 1995 and even numbered Corrigendum dated 15th June 1995, orders have been issued to include specific castes in the "Special Backward Category". Those castes, which have been included in the "Special Backward Category", a list thereof has been given in Appendix 'A'.

2. As per the Government Resolution, General Administration Department No. BCC-1094/ M. No. 68/ 94/16-B, dated 15th June, 1995, orders have been issued to keep 2% reservation in the Government/ Semi Government service for "Special Backward Category".

3. As per the Government Resolution, Higher and Technical Education and Employment

Department No. USG-1493/ (2428)-UE-4 dated 23rd June, 1994 and even numbered Corrigendum dated __ July, 1994, orders have been issued to keep reservation for admission in the Non-agricultural Universities and affiliated Government/ Non- government Arts, Science, Commerce, Education and other Educational Institutions for Other Backward Class people. As per the said order reserved seats have been kept in the proportion of 50% in the Educational Institutions. Now, some specific castes - tribes have been included in the "Special Backward Category" hence, by this order 2% seats are kept reserved for the said category, in all the Educational Institutions under the control of the Higher and Technical Education Department. As 2% seats are increased for keeping reserved for "Special Backward Category", now the proportion of reserved seats in the Educational Institutions shall be as mentioned hereinbelow.

The persons from 13% Scheduled Castes and Scheduled

Tribes embraced

Bouddha religion

Scheduled Tribes 7%

Denotified Castes 3% (14 similar castes)

Nomadic Tribes (28 2.5% and similar castes before January 1990)

Nomadic Tribes 3.5% (Dhangar and similar tribes)

Nomadic Tribes 2% (Vanjari and similar tribes)

For Other 19% Backward Class (OBC)

Special Backward 2% category 52%

Total

These orders are coming into effect from the academic year 1995-96.

4. The said reservation shall be coursewise in each of the Institutions and the same shall be for ------------ free and for value based seats in their respective proportions.

The reserved seats should be filled up firstly. However, though the admission is given on the reserved seats, as per the request of the said candidates, reconsideration should be made for giving admission on some or all unreserved seats, only for higher choice, in respect of the courses or institutions of such candidates, as per the merits.

5. While giving admission to the educational institution, if the candidate of any category is not found then as such reservation is not carried forward as a backlog and as the same is required to be filled up in the same year, such reservation should be filled up by giving admission to the candidates from other Category of Backward Class. For this purpose, an action should be taken as per the guidelines given in paragraph - 2 Dt/. 27 June, 1974. However, while making provision to fill up from other category by way of exchange, it should be seen that the number of Backward Class Candidates available in such a manner, original reservation plus number of candidates available by way of exchange, aggregating together, is not more than 52 percent.

6. As the academic year 1995-96 has commenced, it shall be binding upon the candidates taking admission from the castes included in the "Special Backward Category" to obtain from the Competent Authority the Caste Certificate in the Statement (? proforma) shown in Appendix - B enclosed with the Government Resolution, Social Welfare, Cultural Affairs and Sports Department No. CBC-1494/ M. No. 236/ BCC-5, Dt.

13/June/1995, and to submit the same to the concerned Head of the Institution upto 31 July, 1995. If the candidates from the said category failed to submit their respective Caste Certificates to the Heads of the educational institutions upto the aforesaid date, then they shall not have a right to such reserved seats. This also should necessarily be noted.

7. Director of Education (Higher Education), Maharashtra State, Pune is requested to bring these orders to the notice of the managing bodies of all the educational institutions.

These orders are issued with the concurrence of the General Administration Department and Social Welfare, Cultural Affairs and Sports Department.

By order and in the name of the Governor of Maharashtra.

Sd/-

(T. B. Sen)

Deputy Secretary,

Government of Maharashtra"

28) Pursuant to the aforesaid Government Resolution, the University issued the above numbered Circular on 13th July, 1995. The same reads thus:-

"UNIVERSITY OF BOMBAY

No. BCC/29/301/1995

CIRCULAR:

Sub.: Implementation of reservation in admission for Scheduled Castes/Scheduled Tribes/Denotified Tribes/Nomadic Tribes/Other Backward Classes/Special Backward Category (S.B.C.) for courses of studies in Arts / Commerce / Science / Education / Law / Engineering / Architecture / Pharmaceutical Science and other equivalent curses coming under the purview of Higher & Technical Education and Employment Department, Government of Maharashtra

Attention of the Director, University Department of Chemical Technology, Principal, Sir J.J. College of Architecture, Directors/Heads of University Departments/Centres and the Principals of constituent and affiliated colleges conducting courses of studies in Arts / Commerce / Science / Education / Law/ Engineering/Architecture/Pharmaceutical Science and other equivalent courses conducted by other recognised educational institution is invited to this office circular No. BCC/29/347 dated 25th July, 1994 and circular No. BCC/29/345 dated 21st July, 1994, requesting them to reserve 50% of seats in admission for Scheduled Castes/Scheduled Tribes/Denotified Tribes/Nomadic Tribes/Other Backward Classes. They are informed that the Government of Maharashtra vide Resolution No. USG/1493/ (2428)/VISHI-4 dated 22nd June, 1995 (in Marathi) has now directed that the University and its affiliated colleges of Arts / Commerce / Science / Education / Law / Engineering / Architecture / Pharmaceutical Science and other equivalent course conducted by other recognised educational institutions to reserve 52% of seats for backward classes instead of 50% for admission in the respective courses as follows:-

3. They are further informed that the Government of Maharashtra vide Resolution No. CBC 109/P.K.-86/Mawak-5 dated 16th June, 1994 (already circulated) has partially accepted the principle of 'CREAMY LAYER' as recommended by the Mandal Commission and as per the directions of the Supreme Court in Writ Petition No. (Civil) 930/1900, Indira Sahni v/s. Union of India and Others in case of communities coming under sub-clauses 5, 6 & 7 of para 2 above.

4. A copy of the Government Resolution No. USG/1493/ (2428)/VISHI-4 dated 22nd June, 1995 is enclosed as Annexure 'A'.

5. They are also requested to maintain every year a record of the statistics as to the (i) number of applications received from SC/ST/DT/NT/OBC/SBC students, (ii) number of students admitted from the SC/ST/DT/NT/OBC/SBC category, (iii) number of students required to be admitted according to the above percentage, (iv) total number of students admitted every year (BC and non-BC), since this information is required to be submitted every year to the State Government, Director of Higher Education, Pune and the University Grants Commission.

6. The Director, University Department of Chemical Technology, Principal, Sri J.J. College of Architecture, Director/Heads of the University Departments/Centres and the Principals of constituent and affiliated colleges conducting courses of studies in Arts/ Commerce / Science / Education / Law / Engineering / Architecture / Pharmaceutical Science and other equivalent courses conducted by other recognised educational institutions, are required to make special efforts to fill in all the seats reserved for Scheduled Castes/Scheduled Tribes/Denotified Tribes/Nomadic Tribes/Other Backward Classes/Special Backward Category and maintain and send the statistics without fail as mentioned in para 5, so as to facilitate the B.C.Cell its onwards transmission to the State Government, Director of Higher Education, Pune and the University Grants Commission.

Sd/-

Bombay 400 032 (DR. JAIRAM CHAVAN) 18th July, 1995. REGISTRAR"

29) Thereafter, in February, 1996, Government Resolution was issued on 7th February, 1996 to amend clauses 4 and 5 of Government Resolution dated 22nd June, 1995. This Government Resolution reads thus:-

TRUE TRANSLATION - MARATHI TO ENGLISH

"Regarding reserving seats for "Special Backward Category" in all the educational institutions under control of Higher and Technical Education and Employment Department ........

Government of Maharashtra

Higher and Technical Education and Employment Department

Government Resolution No. : USG-1493/(2428)-UE-4. Mantralaya Extension Building, Mumbai 400 032 Date : 7th February, 1996.

Read : 1) Government Resolution, Higher and Technical Education and Employment Department No. USG-1493/2428/UE-4, dated 23rd June, 1994 and even numbered Corrigendum dated ___ July, 1994. 2) Government Resolution, Social Welfare, Cultural Affairs and Sports Department No. CBC-1494/ M. No. 236/BCC-5, dated 13th June, 1995 and even numbered Corrigendum dated 15th June, 1995.

3) Government Resolution, General Administration Department No. BCC-1094/M. No. 68/94/16-B, dated 15th June, 1995.

4) Government Resolution, No. USG-1493/

(2428)-UE-4, dated 22nd June, 1995.

Government Corrigendum :- Revision in paragraph 4 and 5 of the Government Resolution, Higher and Technical Education and Employment Department No. USG-1493/ (2428)/ UE-4, dated 22nd June, 1995, is made as follows :

2. Paragraph - 4 :- The said reservation shall be coursewise in each of the institutions and the same shall be for free and value based seats, in their respective proportions.

Except the Technical Education Department, unreserved seats coming under other Educational Department should firstly be filled up. Among these, even the backward class student shall be included as unreserved candidate on the basis of merit. Such students should not be included in the reservation. For this purpose, a question does not at all arise to intimate his choice to consider his admission as unreserved. Remaining seats should be filled up as per reservation, while doing so if the proportion of the backward class students become more than 52% in the Educational Institutions then there shall be no objection thereto.

The last sentence of paragraph 5, "However, while making provision to fill up from other category by way of exchange......., to ---------- is not more than 52 percent" should be deleted fully.

4. This corrigendum is issued with the concurrence of General Administration Department.

By order and in the name of the Governor of Maharashtra.

Sd/-

(A. M. Bhattalwar)

Under Secretary, Government of Maharashtra"

30) On the basis of the modified paragraphs 4 and 5 of the Government Resolution dated 22nd June, 1995, the University of Mumbai issued circular on 29th March, 1996, which reads thus:-

"UNIVERSITY OF BOMBAY

No. BCC/20/301-A/1996

CIRCULAR

Sub.: Implementation of reservation in admission for Scheduled Castes/Scheduled Tribes/Denotified Tribes/Nomadic Tribes/Other Backward Classes/Special Backward Category (S.B.C.) for courses of studies in Arts / Commerce / Science / Education/ Law/Engineering/Architecture/Pharmaceutical Science and other equivalent courses coming under the purview of Higher & Technical Education and Employment Department, Government of Maharashtra----------

1. Attention of the Director, University Department of Chemical Technology (Autonomous), Principal, Sir J.J. College of Architecture, Directors/Heads of University Departments/Centres and the Principals of constituent and affiliated colleges conducting courses of studies in Arts/Commerce/Science/Education/Law/Engineering/Archi- tecture /Pharmaceutical Science and other equivalent courses conducted by other recognised educational institution is invited to this office circular No. BCC/29/301/1995 dated 18th July, 1995 directing them to reserve 52% of seats in admission for Scheduled Castes/Scheduled Tribes/Denotified Tribes/Nomadic Tribes/Other Backward Classes/Special Backward Category.

They are informed that the Government of Maharashtra, Higher & Technical Education and Employment Department issued a Government corrigendum No. USG-1493/ (2428)/VISHI-4 dated 7th February, 1996 (in Marathi) (copy enclosed) to para 4 and 5 of Government Resolution, Higher & Technical Education and Employment Department, Resolution No. USG-1493/ (2428)/VISHI-4 dated 22nd June, 1995. They are accordingly requested to take into account the above corrigendum at the time of admission to various courses of studies.

They are requested to maintain and send the statistical information to the University as mentioned in para 5 and 6 of circular No. BCC/29/301 dated 18th July, 1995 so as to facilitate the B.C. Cell (in) its onward transmission to the State Government, Director of Higher Education and the University Grants Commission.

Sd/-

Bombay 400 032 (DR. JAIRAM CHAVAN) 29th March, 1996 REGISTRAR Copy to ... "

31) Besides the above, the latest circular issued by the University of Mumbai dated 27th May, 2011 bearing No. Aff./Recog. 1/Admission/2011-2012/92 of 2011 makes reference to office circular No. GM/188.2003 dated 13th May, 2003 and directs the colleges to strictly adhere to the norms specified therein. The circular dated 27th May, 2011 (Exhibit 'C' to Chamber Summons No. 205 of 2011) reads thus:-

"UNIVERSITY OF MUMBAI

No.Aff./Recog.I/Admission (2011-2012)/92 of 2011

CIRCULAR:-

The Principals of the affiliated colleges in Arts, Science, Commerce and Law (5 years) are hereby informed that the procedure for admission in Govt./Private aided/unaided, minority aided and minority unaided colleges affiliated to this University is to be followed strictly in accordance with this office Circular No. pmaÀ188/2003 idnaaMk 13 mao 2003.

Further, they are informed that considering the date of result of the H.S.C. Examination (12th) has been declared on Friday, 27th May, 2011, the following shall be the Schedule date of admission of the F.Y.B.A., F.Y.B.Sc. & F.Y.B.Com. including F.Y.B.M.M. / F.Y.B.M.S. / F.Y.B.Sc.(I.T.), F.Y.B.Sc. (Computer Science), F.Y.B.Com (Banking & Insurance), F.Y. B.Com (Accounting & Finance), F.Y.B.Com (Financial Market), Law (5 years) course for the academic year 2011-2012:-

Sale of Forms 30th May, 2011 to 14th June, 2011

Collection of filled in 6th June, 2011 to 18th June, 2011 Admission Forms

First Merit List : 20th June, 2011 Payment of Fees" : 20th June, 2011 to 22nd June, 2011 (till 1.30 p.m.)

Second Merit List : 22nd June, 2011 (Evening) Payment of Fees : 25th & 27th June, 2011 (till 1.30 p.m.)

Third Merit List : 27th June, 2011 (Evening) Payment of fees : 28th June, 2011 to 29th June, 2011 (till 1.30 p.m.)

Final Merit List : 29th June, 2011 (Evening) Payment of fees : 30th June, 2011

The Principals are hereby requested to adhere to the above schedule of dates and further details if any will be communicated to them shortly. (Note- In case of untoward incident of collapse of transport system due to deluge or any such reasons allowance of time will be declared by the University.)

MUMBAI-400 032 Prin. Dr. M.S.Kurhade 27th May, 2011. I/c. REGISTRAR.

..... " (emphasis supplied)

The circular issued by the University of Mumbai dated 13th May, 2003 referred to in the latest circular dated 27th May, 2011, in turn, refers to the Government Resolution Nos. 2003/031/ 1-9/V.S.-8 dated 16th April, 2003. The said Government Resolution has been issued in compliance with the decision of the Apex Court in T.M. Pai Foundation and other connected cases, which, in turn, amongst others, provides for reservation of seats for reserved categories, including in respect of private colleges. In furtherance of the instructions issued by the University, the college, before commencement of the admission process, issued prospectus. The condition specified in the prospectus for admission to Five Years Law Course (Exhibit 'F' to the petition) reads thus:-

"Admission to the Five Year Law Course.

A candidate passing the H.S.C. (10+2) examination conducted by the Maharashtra State Board of Secondary and Higher Secondary Education, with minimum 45% marks at the first attempt or any other examination recognised as equivalent thereto by the University of Mumbai with the minimum prescribed marks at the first attempt is eligible for admission to the first Year of pre law course. The above percentage of marks shall be relaxed by 5% for the candidates belonging to reserved categories. Admission will be given strictly on merit.

For candidates securing more than 40% but less than 45% of marks at the respective qualifying examination (with further 5% relaxation for candidates belonging to SC/ST categories) the University may conduct a Common Eligibility Examination. The candidates passing in such examination shall become eligible for admission for the respective Law Courses, and may be admitted in any of the Law Colleges conducting the respective Courses, subject to availability of the seats in the college for the Course and the Class.

No student is allowed to keep terms for two different degree courses simultaneously in the same academic year.

Procedure for seeking admission to the Five Year & Three Year Courses.

Admission process for the first year of the Five Year Law Course will commence immediately after the declaration of H.S.C. results and in the case of Three Year Law Course, after the declaration of graduation results.

Total seats available for 1st Year of B.L.S., LL.B. (Five Years Law Course)

2 divisions aided --- 160

1 division unaided --- 80

Total seats available for 1st Year of LLB. (Three Years Law Course)

4 divisions aided --- 320

There is 50% Reservation for Reserved Categories from Maharashtra State as per the Government Resolution (G.R.)

The Prospectus and the Registration Forms will be available at the College Office. The Registration Form, duly filled in, should be submitted to the college within the prescribed time. Thereafter, merit list of the selected candidates will be displayed on the notice board as under - Five Year Law Course:

I (i) General Category of students from Maharashtra State Board of Secondary and Higher Secondary Education.

50% Reserved Category from Maharashtra State as per the G.R.

1. SC (Hindu & Baudha)

2. ST

3. Vimukta Jati

4. NTI

5. NT2 (Dhangar etc.)

6. NT3 (Vanjari etc.)

7. OBC

8. Special Backward Category

(iii) 3% seats reserved for the following categories:

1. Children of transferred Central/state Government employees offers (sic)

2. Children of Serviceman/Ex-Serviceman.

3. Candidates who have excelled in sports or extra curricular activities at the state/national/international level.

4. Physically handicapped/disabled students.

5. Widowed/Deserted girl student (self candidate).

6. Children/Grandchildren of freedom fighters."

32) According to the counsel for the University, the circulars issued by the University from time to time do provide for reservation for students belonging to reserved categories, in consonance with the Government policy to provide for such reservation issued in exercise of powers under Section 7(2) of the Act read with Section 5(15) of the Act. Section 5 (15) specifies the powers and duties of the University to supervise, control, regulate admission of students for various courses ofstudy in University Departments, conducted and affiliated colleges, institutions, schools and recognised institutions. None of the above circulars, much less the latest circular issued by the University on 27th May, 2011 has been challenged by the petitioner in the former petition. Merely taking ground in the writ petition that the reservation provided by the Government Law College up to 50% seats for candidates belonging to reserved categories is not backed by law, therefore, will have to be stated to be rejected.

33) We shall now deal with the side arguments raised by the petitioner in the former petition with regard to reservation. According to the said petitioner, the reservation provided for widow / deserted girl students (self candidates) is without application of mind. On this assertion, the said petitioner seeks direction against the respondent- college not to provide for reservation for widow / deserted girl students (self candidates). We need not detain ourselves with this contention. In that, it is common ground that no seat has been allocated to any candidate belonging to the said category. We were informed that no such application has been received. Even the merit lists and re-worked merit lists produced before us do not refer to the said category. Therefore, we do not think it necessary to burden this judgment with the said ground, as it does not arise for consideration for the present academic year.

34) The next argument of the petitioner is that the requirement mentioned in the prospectus to avail of the said reserved category seat is only on production of original Caste Certificate, which condition is not consistent with the ruling of the Apex Court in Mahduri Patil's case. This is a vague plea taken by the petitioner. There is nothing to indicate from the record that the college has dispensed with production of "Caste Validity Certificate" of the concerned candidate claiming reservation against the seats ear-marked for reserved categories. Reliance placed on one of the requirements of admission, to produce the original Caste Certificate, to mean that it dispenses with the requirement of a "Caste Validity Certificate" to be issued by the Caste Scrutiny Committee, is misplaced.

35) It was then contended that the reservation is only in respect of candidates belonging to reserved categories from Maharashtra State. It is well established position that a candidate belonging to reserved category in his State of origin is not entitled to claim admission against reserved category in another State [see Marri Chandra Shekhar Rao v. Seth G.S.Medical College, (1990) 3 SCC 130]. In any case, we refrain to answer the academic question raised by the said petitioner, who has failed to give any specific instances as to admissions of which students made against reserved seats are illegal or contrary to the mandate of law and especially when the said petitioner herself is not claiming admission against the reserved category. Suffice it to observe that the college has adhered to the direction issued by the University under Circular dated 27th May, 2011 which adopted the reservation policy of the State Government and applied the same to admissions in the affiliated and recognised colleges.

36) It was then contended on behalf of the said petitioner that Ordinance 5077 merely provides for giving concession to the candidates belonging to reserved categories in respect of the qualifying marks but does not provide for any reservation. Even the prospectus reiterates the same position. Ordinance 5077 reads thus:-

"A candidate for being eligible

• for admission to the First Semester of 3 years LL.B. Degree Course must have passed/completed Degree Examination in any Faculty of a recognised University or equivalent qualification with minimum 45% of marks at the qualifying examination if there is no Eligibility test and, 40% of marks at the qualifying examination if there is an Eligibility test. However the above percentage of Marks shall be relaxed by 5% for the candidates belonging to SC,ST categories.

• for admission to the First Semester of 5 years LL.B. Degree Course must have passed/completed H.S.C. Examination or equivalent qualification with minimum 45% of marks at the qualifying examination if there is no Eligibility test and, 40% of marks at the qualifying examination if there is an Eligibility test. However the above percentage of marks shall be relaxed by 5% for the candidates belonging to SC,ST categories."

37) Even this submission does not commend to us. The provision such as Ordinance 5077 only governs the eligibility criteria of the candidate, and cannot be construed to be a provision regulating the other admission procedure as such. Indeed, only candidates who are eligible as per this provision would be entitled to pursue the course and their claim can be considered for admission while preparing the merit lists of all the similarly placed eligible candidates. Suffice it to observe that Ordinance 5077 is a provision limited to the issue of the minimum eligibility criteria to be fulfilled by the aspiring candidate. Similarly, the contents of the prospectus, on which much emphasis has been placed by the said petitioner also does not take the matter any further. As has been noticed earlier, the college has adhered to the norms specified by the University regarding reservation, which is in consonance with the policy of the State Government. That policy or the directive issued by the University is not the subject-matter of challenge before us. Taking any view of the matter, therefore, the argument regarding irregularity or illegality in providing for 50% reservation for candidates belonging to reserved categories by the Government Law College cannot be countenanced.

38) That takes us to the next challenge of the petitioner in the former writ petition. At the outset, we may mention that respondent- Government Law College is a Government College. The State Government bears the financial burden of running the said college. It is well established position that, if the State Government bears the financial burden of running the Government College, it is entitled to lay down criteria for admission in its own college, and to decide the sources from which admission would be made, provided, of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object sought to be achieved. So long as there is no discrimination within each of such sources, the validity of the guidelines laying down such sources cannot be successfully challenged. Further, the candidates who have passed the qualifying examination from "a University" (read Maharashtra Board) would form a class by themselves as distinguished from those candidates who have passed the qualifying examination from the other Universities (read Boards other than Maharashtra Board)[See D.N. Chanchala v. The State of Mysore & Ors., AIR 1971 SC 1762]. This exposition will have to be borne in mind while examining the grievance of the petitioner in the former petition.

39) Reverting to the second challenge, it is argued that the college has misdirected itself in preparing the merit lists of candidates on faculty-wise basis. According to the said petitioner, that procedure is not backed by law. The counsel appearing for the students, who have already been admitted and/or likely to be affected by any change, on the other hand, have placed reliance on the Government Order dated 11st February, 2004, whereunder, the Advisory Committee was appointed by the State Government to exercise the powers specified under Section 85(5) of the Act. The said Government Order (Exhibit 'E' to Chamber Summons No. 205 of 2011) reads thus:-

The translated copy of the said Government Order reads

thus:- " Government Law College, Mumbai,

Local Consultant Committee Estb.

Maharashtra State Higher & Technical Department

Government Order No.GLC-2003(6/03) Mashi-1 Mantralaya Extension Bhavan, Mumbai 400 032 Dated 11th February, 2004.

Read: 1) Maharashtra University Act, 1994.

2) Director of Education, Higher Education, Maharashtra State, Pune its letter No. GLC/2002/2698 /Sthas/Prash-3/ dated 30.122003.

Government Order

That as per Section 85 (2) of Maharashtra Universities Act, 1994 in the Government Law Colleges, the following Local Consultant Committee should be established.

Local Consultant Committee: Planing

1. Concerned Asst Director of Regional Department, Higher Education.

2. Three Non-Government members of three different area.

3. 3 Teacher members, they should be selected through the Law Teachers.

4. 1 member should be selected through employees of College.

5. Principal of concerned College - Member Secretary

2. As per the Rules, the Government Law Colleges, Mumbai's the Local Consultant Committee, the following Non-Government members for their appointment/selection the Government is granting permission.

1. Justice Shri D.R. Dhanuka (Retired)

2. Adv. R.A. Dada.

3. Adv. Shri Rajeev Chavan, 402, Asim, Plot 237, Jaywant Palkar Road, Worli, Mumbai 400025.

3 The above referred New Committee Body should be in existence form the Government order and its duration is at 5 years. That for appointment/selection of 3 members from the Teachers members and 1 member from employees of colleges should be appointed, regarding the same the Principal, Government Law Colleges, Mumbai the requisite steps should be taken. The above Consultant Committee minimum 2 meetings should be taken in a year.

4. The selected committee or body's duty is as per Section 85(5) of Maharashtra Universities Act, 1994 (the Committee's duties and powers is enclosed herewith)

5. The expenses of Committee's meeting and Non- Government members, the same is as per fund which is granted to the Government College, Mumbai/ sudden Aided.

As per the order of Maharashtra Government and in its name.

Sd/-

(S.D. Padval) Executive Officer, Maharashtra State.

.... "

40) Section 85(2) of the Act, inter alia, stipulates that a separate local Managing or Advisory Committee for college or institution managed and maintained by the Government should be appointed. The powers and duties of the said Committee are provided in sub-section (5) thereof. Amongst others, in terms of Section 85(5)(f), the Committee is expected to advise the principal regarding the intake capacity of various classes, preparation of time tables, distribution of the available teaching workload and such other matters relating to internal management of the college and discipline of the college students as may be referred to it by the principal, from time to time. As per Section 85(5) (j), the said committee has to perform such other duties and exercise such other powers as may be entrusted by the management and the university. The purpose of appointing Advisory Committee for the Government College is to aid and assist the Government to manage and maintain its college.

41) The Committee so appointed, in its meeting held on 13th April, 2005, was required to discuss the issue regarding streamlining the admission process faculty-wise to advise the principal and management of the college in that regard. The relevant extract of the minutes of the meeting held by the said Committee on 13th April, 2005 (Exhibit 'F' to Chamber Summons No. 205 of 2011) is reproduced thus:-

"A meeting of the Advisory Committee was held on 13.4.2005 in the Principal's Chamber. The following members were present.

1. Justice D.R. Dhanuka

2. Advocate V. Chavan

3. Prof. (Mrs.) G.N. Parawati

4. Prof. P. Mokal

5. Prof. (Mrs.) Rachita Ratho

6. Mrs. S.G. Dalvi (Clerk-in charge)

7. Principal (Mrs.) P.R. Rao - Chair person "

Leave of absence was granted to Mr. Rafiq Dada and Mr. Munavar Ali, Joint Director.

The Principal welcomed the members

The following matters were discussed.

AGENDA: Procedure for admission

The Principal apprised the members about the admission procedure and informed them that a common merit list was prepared for Arts, Science and Commerce faculties.

After discussion, Justice Dhanuka pointed out that taking into account the ground realities, it is difficult for students of the Arts faculty to score a high percentage. Example - a student who opts for Sociology or English though equally competent cannot score a percentage equivalent to his Science or Commerce counterpart.

In view of these differences it was suggested that 25% each should be reserved for Arts, Science and Commerce respectively and 25% should be put under the "Residuary" category for other faculties like Medicine, Management, Engineering etc.

Further employed students, by mere ground of employment cannot be deprived of admission. They should be treated on par. However repeaters, consistent drop outs with long gaps should be discouraged. If a student has not continued studies year after year, this factor is to be taken into account and should not be readmitted especially if there are limited vacancies. Regular students should be given preference.

The Principal informed the Committee that the college followed the practice of asking for a cut off which was 5% higher for students from other Universities or Boards. After due deliberation, it was suggested that the College should follow the guidelines followed for students of LL.M. Justice Dhanuka suggested that a letter about the procedure could be taken for the University of Mumbai and adopted.

Advocate Chavan suggested that CET examination could be held. The Principal and other members of the teaching staff were of the opinion that it is difficult to introduce CET as the College was affiliated to the University of Mumbai and cannot have its own CET. (However the Principal assured the Committee that she would explore this avenue for future admission with the University of Mumbai for future admissions to Law.)

Advocate Chavan was of the opinion that CET would enable a premier institute like Government Law College to maintain high standards.

RESOLUTION: 1) Resolved unanimously that 25% each seats be reserved for Arts, Science and Commerce. Resolved that the minimum cut off percentage for students of the Arts faculty (open category) should be 65% or more in order to minimize the disparity between the Commerce, Science and Arts faculties. The remaining 25% seats be termed Residuary seats and be given to other faculties like Management, Medicine etc. on merits.

2) Resolved unanimously that employed students be admitted but such employed students who discontinue studies year after year, be not readmitted if there is no vacancy.

3) Resolved that for students from other Universities, the pattern followed for LL.M. Admissions by the University of Mumbai be followed.

4) Resolved that at least for this academic year no CET examination be held.

........"

42) The decision so taken by the Committee is founded on the Guidelines prescribed for LL.M. Course by the University of Mumbai. That was necessitated, as it was noticed that the admission to Law Degree Course was taken by candidates coming from different streams. Each stream ought to constitute a class by itself. The Committee noticed that the students of the Arts Faculty, though no less competent, cannot score percentage equivalent to his Science or Commerce counterpart. Moreover, when the admissions were to be granted from multiple sources as in the case of LL.M. admissions, the Committee decided to adopt the same procedure. The submission of the petitioner in the former petition is that the Committee could not have decided such procedure on its own. In the first place, as noticed earlier, the respondent-college is a Government-funded college. The Government appointed a committee to exercise powers so as to advise the administration / management of the college on relevant matters, which included regulating admissions to the college. It has, therefore, laid down criteria for admission to law course, which, essentially, is founded on the Guidelines issued by the University of Mumbai for LL.M. Course. Neither the said Guidelines nor the decision of the Committee are subject-matter of challenge in the present petition. The college, during the admission process, has merely adhered to the same norms.

43) It is also noticed that the University of Mumbai issued a circular as recently as on 15th July, 2011, which is at Exhibit 'G' to Chamber Summons No. 205 of 2011. The same reads thus:-

"UNIVERSITY OF MUMBAI No.UG/212 of 2011 CIRCULAR:-

A reference is invited to the Ordinances, Regulations and syllabi relating to the LL.B. degree course (Three Years Degree Course) vide this office Circular No. UG/368 of 2001, dated 20th October, 2001 and the Head, University Department of Law and the Principals of the affiliated Colleges in Law are hereby informed that the recommendation made by the Board of Studies in Law at its meeting held on 19th April, 2011 has been accepted by the Academic Council at its meeting held on 25th May, 2011 vide item No. 4.106 and that, in accordance therewith, the total intake of the students to the first year of the three years LL.B. Programme is divided into equal proportion is as follows:

1/3rd intake from Arts and Fine Arts Faculties jointly, 1/3rd intake from Science, Technology and Medicine Faculties jointly, and 1/3rd intake from Commerce Faculty. Further, that the same has been brought into force with effect from the academic year 2011-2012. MUMBAI-400 032 Prin. (Dr.) M.S. Kurhade 15th July, 2011 I/c. Registrar "

44) The University has also recognised the need to apportion the total intake of the students to the first year of Three Years LL.B. Programme in the equal proportion, faculty-wise. The above circular has been issued on the basis of decision of the Academic Council of the University recorded in the Resolution passed in the meeting held on 25th May, 2011. The said Resolution reads thus:-

"4.106

It was resolved that the recommendation made by the Board of Studies in Law at its meeting held on 19th April, 2011 be accepted and that in accordance therewith, the total intake of the students to the first year of the Three years LL.B. Programme is to be divided into equal proportion as follows:- 1/3rd intake from Arts and Fine Arts Faculties jointly, 1/3rd intake from Science, Technology and Medicine Faculties jointly, and 1/3rd intake from Commerce Faculty." Indeed, this decision of the University is only with regard to admission in first year of Three years Law Course. There is no reason why the same pattern ought not to be applied and will not be good even to admissions of five years law degree course - as in the case of three years law course and for LL.M. Course.

45) Considering the above, so long as the petitioner is not in a position to demonstrate that the classification is arbitrary or irrational and unreasonable or has no nexus with the object sought to be achieved, we fail to understand as to how the preparation of faculty-wise merit list can be faulted with. The decision taken by the Committee appointed by the State Government under the statute was competent to take such decision. The decision so taken by the said Committee is not the subject-matter of challenge. That decision is resonated even in the decision of the University of Mumbai in respect of filling up total intake of the students to first year of the three Years LL.B. Course in equal ratio. In our opinion, therefore, the preparation of merit lists by the college on faculty- wise basis, which is in adherence to the instructions issued by the Committee cannot be taken exception to.

46) The Apex Court in the case of Pradeep Jain & Ors. v. Union of India & Ors., reported in (1984) 3 SCC 654, has expounded that the admission may depart from the principle of selection based on merits where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals. It went on to observe that the challenge under the Constitution is a dynamic concept which must cover every process of equalisation. Equality must become a living reality for the large masses of the people. Further, those who are unequal, in fact, cannot be treated by identical standards; that may be equality in law, but it would certainly not be real equality. De jure equality must ultimately find its raison d'etre in de facto equality.

47) As of now, neither the Act, Statutes or Ordinances provide for specific method to be followed for preparation of merit list of candidates by the concerned colleges. No such provision is brought to our notice, except Ordinances 5077 and 5078. We have already dealt with the efficacy of those Ordinances. The same cannot be considered as providing any guidance or direction on the subject of preparation of merit list of candidates and apportionment of total intake of seats of the college, one way or the other. In absence of such provision, the Advisory Committee was competent to decide on those matters. Indeed, the procedure must ensure that it should not result in any discrimination amongst the candidates from same sources. In the present case, the college has merely followed the decision of the Advisory Committee to treat the candidates belonging to respective faculty as a separate class and prepare inter se merit list of such class and to provide for and specify the total number of seats for each of those classes. The procedure of preparing separate merit list of respective faculty is to achieve real equality as those candidates cannot be treated by identical standards. In our opinion, therefore, the challenge of the petitioner regarding preparation of faculty-wise merit list is without any substance.

48) That takes us to the next challenge of the petitioner in the former petition. According to the said petitioner, the deduction of 5% marks of the candidates, who have passed the qualifying examination from the Boards other than the Maharashtra Board is without authority of law. Even this submission does not commend to us. We have already adverted to the background in which the Local Advisory Committee of the college was appointed by the State Government under Section 85 of the Act and its competence to enunciate the procedure of preparation of merit lists of the candidates aspiring to seek admission. The said Committee, in its meeting held on 13th April, 2005, considered the issue regarding deduction of 5% marks of students who have passed the qualifying examination from Boards other than Maharashtra Board. The said decision has been enforced by the college. That decision of the Committee has not been challenged before us. Indeed, attempt was made by the counsel for the said petitioner to contend that the Advisory Board has acted in excess of authority given to it by the Government. However, no such case is specifically pleaded even in the amended writ petition. That being a mixed question of fact and law, it was necessary for the petitioner to plead the same. Be that as it may, it was contended that all the members of the Advisory Committee who are shown as present in the meeting, have not signed the minutes. As a matter of fact, no such grievance has been made in the writ petition. In any case, to re- assure ourselves, we called upon the counsel for the college to produce the original record. We have perused the original record. In the first place, there is intrinsic material to indicate that the meeting was held and was attended by the seven members referred to in the minutes. Two other members, who could not attend, were granted leave of absence. Indeed, out of the seven members present, only signatures of four members are found at the foot of the minutes. But from the minutes, it is noted that the other members, including the Chairman, participated in the discussion. Suffice it to observe that the minutes of the meeting dated 13th April, 2005, which has been annexed to Chamber Summons No. 205 of 2011 at Exhibit 'F', is not challenged in the petition. Besidesthose minutes, the minutes of meeting held on 17th April, 2006 by the Local Management Committee also specifically deal with the issue of stipulating 5% deduction of marks obtained by the candidates who have passed the qualifying examination from Boards other than Maharashtra Board. The relevant extract of the said minutes reads thus:-

"A meeting of the Local Management Committee was held on 17.4.2006 at 5.30 p.m. In the Principal's chamber. The following members were present -

1) Dr. V.J. Kulkarni, Joint Director of Education - Chairman 2) Principal (Mrs.) P.R. Rao - Member

3) Justice D.R. Dhanuka

4) Sr Counsel Adv. Rafiq Dada

5) Adv. Rajiv Chavan

6) Prof. (Mrs.) G.N. Parawati

7) Prof. P.K. Mokal

8) Prof. (Mrs.) R.S. Ratho

9) Mrs. S.G. Dalvi

The minutes of the meeting held on 7th April, 2005 were read and confirmed. Thereafter, the meeting commenced. .........

ADMISSION TO V YEARS LAW COURSE:

A discussion took place amongst the members of the committee with regard to admission to the 1st year of five year course where securing admission to Government Law College was very competitive.

In view of the legal standing of a premier law institution like Government Law College, Advocate Rajiv Chavan suggested once again that a CET be held. The Principal informed him that as we are affiliated to Mumbai University we cannot have our own admission procedure by holding CET. The Joint Director of Education suggested that a common merit list of students from Maharashtra Board and other Boards be put up and a viva be taken to give admission in the final stage. Mrs. Ratho pointed out the difficulties in this procedure as it would encourage people to come with recommendations. The Principal also pointed out that law admission may also be steeped in legal controversies like engineering/medical admissions. Sr. Counsel Rafique Dada asked if we had any information of Government Law Colleges in other States and the procedure followed therein. The Joint Director & Principal did not have any detailed information in this regard. Further Government Law College is the only Government College for Law in Maharashtra.

Letter dated 9/11/2005 from the Bar Council of India was read over. Principal explained the procedure followed last year in granting admission to the 1st year of five years law course. The Principal also pointed out that from 1996 the college had followed the practice of stipulating 5% higher cut off percentage for students from other Boards. Details of the admission (V yrs. Course) of students to the First Year in 2005 were read out. Arts/Science/Commerce streams had equal number of seats as decided in the earlier meeting. The details of admission in the year 2005 are as follows:-

Faculty No. of seats Maharashtra Board Other Board Cut off percentage Cut off percentage

Total seats (open category) - 80

Arts 26 75.33% (16) 80% (10) Science 25 82.17% (18) 85.80% (7) Commerce 26 80.67% (16) 85.60% (10)

Defence quota ---- 1

Ex-Serviceman ---- 1

Handicapped ---- 1

Sr. Counsel Mr. Rafique Dada was of the opinion that this was reasonable classification as academic excellence was the only criterion. In view of the above fact the committee felt that the practice followed since the year 1996 of stipulating 5% higher for students of other Boards be continued and the faculty-wise allocations of seats also be confirmed. The committee passed the following resolution -

RESOLUTION Resolved that the 5% higher cut off percentage prescribed for students from Boards other than Maharashtra Board, being based on academic excellence and not on the fact of residence is reasonable and be continued.

With this practice a student from Mumbai who has given an examination of any Board other than Maharashtra Board will be required to secure a higher cut off percentage. As this practice is based on academic excellence, such a student cannot complain of discrimination. It is reasonable classification and not based on residence of a student. It does not make a discrimination between residents of Mumbai or/and Maharashtra and other States of India.

.... "

49) It is noticed that, since year 1996, the college has been following the norm of deducting 5% marks of candidates who have passed qualifying examination from Boards other than the Maharashtra Board. As aforesaid, the above-said decisions of the committee are not challenged in the petition.

50) The position emerging from the re-worked merit list for Academic Year 2011-12 prepared by the college without deducting 5% marks of the candidates, who have passed the qualifying examination from Boards other than the Maharashtra Board, reinforces the appre- hension expressed by the Committee. In that, in the re-worked merit list of open category - Arts Faculty (without deducting 5%), the first and the only candidate to secure admission from Maharashtra Board finds place at position as low as at serial No. 35. The said student has secured 90% marks in Marathi and stood 1st in Mumbai Division. She has secured aggregate 85.5% marks in the 12th Standard examination conducted by the Maharashtra Board. That means, the rest of the 34 candidates placed higher in merit of Arts Faculty as per the re-worked merit list (without deducting 5% marks) are all from Boards other than Maharashtra Board - not necessarily residing in Mumbai and/or Maharashtra. Similarly, in Commerce Faculty re-worked list of open category (without deducting 5% marks), the first candidate from Maharashtra Board is at Serial No. 8. Only that candidate from Maharashtra Board will get admission as per the re-worked merit list of Commerce Faculty (open category) and rest of the seats will go to candidates from Boards other than Maharashtra Board. Similar pattern emerges even in the re-worked merit list of open category - Science Faculty (without deducting 5%). The first candidate from Maharashtra Board, who finds place in the said list, is at serial No. 12. The only other candidate from Maharashtra Board to be admitted as per this list is at serial No. 32. Rest of the seats out of the total seats earmarked for Science Faculty (open category) will be cornered by candidates who have passed their qualifying examination from Boards other than Maharashtra Board. This disparity is still worst, considering the fact that the number of students appearing through Maharashtra Board are substantially high, as compared to the negligible number of candidates residing in Mumbai / Maharashtra appearing through Boards other than Maharashtra Board. The glimpse of those figures at the level of 10th standard examination is already taken note of in paragraph 2 of the reported decision in the case of Fransisco D. Luia (supra), reported in 2008(5) Bom.C.R. 569. Similar pattern would prevail in the 12th standard Board examination.

51) Notably, about eleven students of Arts Faculty, three from Science Faculty and twelve from Commerce Faculty who have passed their qualifying examination from Maharashtra Board and admitted / likely to be admitted will be affected by the re-worked merit lists of open category prepared, without deducting 5% marks of candidates who have passed their examination from Boards other than Maharashtra Board. Thus, only one candidate from Arts Faculty, two from Science Faculty and one from Commerce Faculty who have passed the qualifying examination from Maharashtra Board will get admission out of the total seats earmarked for respective faculties in open category; and rest of the seats thereof will be cornered by candidates from Boards other than Maharashtra Board, if the policy of deduction of 5% marks was to be withdrawn / cancelled. This clearly indicates the palpable disparity, which was required to be corrected by deducting 5% marks of the candidates who have passed the qualifying examination from Boards other than Maharashtra Board. Therefore, such a correctional course cannot be stated to be unreasonable, irrational or having no nexus with the object sought to be achieved. As is observed in Dr. Chanchala's case (supra), so long as there is no discrimination within each of such sources, the validity of the procedure laying down such sources cannot be successfully challenged. The candidates passing through qualifying examination held by the Local Board, i.e., Maharashtra Board, as per this policy, are treated as a class by themselves as distinguished from the candidates passing the qualifying examination through the other Boards. Such classification has reasonable nexus to the object of equalising the opportunity for candidates who have passed the qualifying examination from Maharashtra Board, by deducting 5% marks of candidates belonging to the Boards other than Maharashtra Board. As a result, we hold that the petitioner in the former petition ought to fail in the challenge even to the process of deduction of 5% marks of those who have passed the qualifying examination from Boards other than the Maharashtra Board.

52) Even if we were to agree with the grievance of the petitioner in the former petition that the process adopted by the college of preparing the merit lists was improper for one or the other reason stated by the petitioner, we have no hesitation in taking the view that it would not be proper for this Court to upset the admission process already completed by the college at this distance of time. The college has already commenced from 4th July, 2011 and the candidates who have been admitted have completed the necessary formalities of admission. The interveners / applicants have rightly pressed into service the observation of the then Chief Justice Shri Swatanter Kumar, which has been concurred to by the third Judge Shri Justice J.N. Patel (as he then was), in the case of Francisco D. Luis (supra), that, once large number of students have already been given admission in different colleges, and the process of admission, if directed to be re-opened, would result in delay of academic course, avoidable public expense, inconvenience to students caused due to mid-stream change. Besides, we cannot be oblivious to the assertion made on affidavit by the interveners / applicants as well as the petitioners in companion writ petition that, if the merit list was to be re-worked and the admissions already granted to them were to be disturbed, those students, in whose favour, indefeasible rights have been crystallised, would suffer serious prejudice. In that, most of them, having secured high percentage of marks, had a fair opportunity to take admission in other colleges, including to other professional courses, which they have given up in the fond hope of pursuing Five Years Law Course from Government Law College. If they were to be now removed from this college, they would neither be able to get admission to other courses, nor to any law college of similar repute as that of Government Law College, and may also fall short of the required attendance for the respective semesters, thereby suffer loss of one academic year. Even for this reason, the question of acceding to the petitioner's prayer of directing the respondent-college to undertake fresh exercise for finalising the admission to first year of Five Years Law Course will have to be rejected. We would, therefore, decline to exercise our discretionary jurisdiction at the instance of the said petitioner on the ground of laches.

53) The counsel for the said petitioner, relying on the decision of the Apex Court in Mahatma Gandhi University & Anr. v. GIS Jose & Ors., (2008) 17 SCC 611, submits that the Court should not show misplaced sympathies, as the Courts have repeatedly held that educational standards should not be compromised. In the first place, the dictum in the said decision is on the facts of that case where the respondent secured admission to M.Sc. Computer Science course, even though she had secured less marks than the minimum cut-off marks. Thus, the Courts proceeded on the finding of fact that the respondent was ineligible to be admitted to the said course. On that basis, her admission came to be set aside. In this case, we have already noticed that each of the students admitted by the college or likely to be admitted fulfils the eligibility criteria. Further, the classification on the basis of faculty-wise or, for that matter, deduction of 5% marks of candidates from Boards other than Maharashtra Board is not unreasonable, or irrational. Rather, it has nexus with the object sought to be achieved in creating a level field amongst the students coming from different streams and sources. Be that as it may, the counsel for the applicants / interveners has placed reliance on the decision in Rajendra Prasad Mathur v. Karnataka University & Anr., AIR 1986 SC 1448, to contend that, even in the case of admission granted to ineligible candidate to Engineering Degree Course, the Court protected the interest of the student, as the lapse was of the Principal of the College in granting him admission. It is not necessary to dilate on this contention any further for the reasons already recorded above.

54) Insofar as the petitioner in the former petition, she has passed out 12th standard examination from CBSE Board in Commerce Faculty. In the faculty-wise list (open category), without deducting 5% marks, as prepared by the respondent-college (on the basis that she has, in fact, secured 88.20% marks), her name in the re-worked Commerce Faculty list appears at Serial No. 101. It is not the case of the said petitioner that any other candidate from Commerce Faculty, who has passed the qualifying examination from Board other than Maharashtra Board, having secured lesser marks than the marks secured by her, is being preferred by the respondent or is likely to be given admission. In absence thereof, no relief whatsoever can be granted to the said petitioner.

55) We place on record the statement made by the counsel for the respondent-college that, as on 14th July, 2011, total 27 seats were vacant and were to be filled in by candidates as per the existing (already notified) merit lists, but, because of the order dated 14th July, 2011, the college proceeded to keep the admissions of the remaining candidates in the said merit lists in abeyance. In addition to the said 27 vacancies, another six seats have fallen vacant because of the withdrawal of admission by concerned candidates. Thus, in all, 33 seats are vacant, and will be filled up, in addition to 207 already admitted students, which include students belonging to reserved categories. In view of the opinion expressed by us as recorded above, the remaining 33 vacant seats will have to be now filled up by the respondent-college in accordance with the existing merit lists, and not the re-worked merit lists. Further, the candidates who have failed to take admission, in spite of their name appearing in the earlier merit lists notified by the college, cannot be considered against the 33 vacancies or any future vacancy that may arise. For, those candidates did not turn up for completing the admission procedure within the specified time and thus have given up their claim. Accordingly, the 33 vacancies and/or any future vacancy in the respondent-college will have to be filled up as per the merit position of the existing or latest merit lists of the college, and not the re-worked merit lists.

56) Accordingly, we proceed to pass the following order:-

(1) Writ Petition No. 1430 of 2011 is dismissed with costs.

(2) The accompanying four Chamber Summonses, being Chambers Summonses Nos. 201, 205, 206 and 207 of 2011, respectively, are disposed of in view of the dismissal of Writ Petition No. 1430 of 2011.

(3) In view of dismissal of Writ Petition No. 1430 of 2011, nothing survives for consideration in Writ Petition (Lodging) No. 1459 of 2011.

Subject	Education
Court	Mumbai High Court
Decided On	Aug-08-2011
Case Number	WRIT PETITION NO.1430 OF 2011
Judge	A.M. Khanwilkar; R.Y. Ganoo, JJ.
Acts	Maharashtra Universities Act, 1994 - Section 53(1), 7(2), 5(15), 85(5)
Appellant	Swati R. Khinvasara
Respondent	The State of MaharashtrA.

Swati R. Khinvasara Vs. State of Maharashtra - Court Judgment