Mrs. Indravati Rajan Yadav Indian Inhabitant Vs. Shantidevi Kamleshkumar Yadav, (Congress - I Candidate), - Court Judgment

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- section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - in other words, after the petition has been disposed of and a declaration is given, it would not be open to the chief judge to exercise jurisdiction to declare elected any other person including a person like the petitioner who contends that he had secured the third highest number of votes.f.i. rebello, j.1. appearance has been put up on behalf of respondent no. 3. none present for respondent nos.1 and 2. even otherwise considering the order to be passed, notice on them dispensed with. rule, made returnable forthwith. 2. at the general election held to fill in the seats to respondent no. 3 corporation, respondent no. 1 was declared elected. the seat was reserved for female (obc) candidate. an election petition was filed by a voter before the additional chief judge, court of small causes at mumbai being election petition no. 30 of 2002. reliefs sought were to set aside the election of respondent no. 1 and to declare respondent no. 2 as elected. the petition was allowed and the election of respondent no. 1 was set aside. at the same time, the learned additional chief judge, court of small causes declared respondent no. 2 deemed to be elected against the vacancy occasioned by unseating of respondent no. 1. it appears that an objection came to be raised against respondent no. 2 on the ground that she did not belong to the notified obc caste. the matter for verification of the caste claim of respondent no. 2 was forwarded to the caste scrutiny committee which rejected the claim of respondent no. 2 as belonging to the o.b.c. caste. respondent no. 2 filed a petition challenging the said order before this court being writ petition 4272 of 2005. the petition was dismissed. consequently, respondent no. 2 ceased to hold office. counsel appearing for the petitioner points out that the petition filed by respondent no. 1 has also been dismissed. 3. it is the case of the petitioner, that petitioner ought to have been declared as deemed to be elected pursuant to the vacancy which has been occasioned by the unseating of respondent nos.1 and 2. it is on this basis that the present petition has been filed. it may be mentioned that the petitioner herein was not a party in the municipal election petition no. 30 of 2002.4. at the hearing of the petition, on behalf of the petitioner learned counsel points out placing reliance on sections 33 and 34 of the mumbai municipal corporation act, 1888 (hereinafter referred to as the act) that she should be declared as deemed to be elected to the seat on account of the vacancy having arisen by the unseating of respondent nos.1 and 2. we may gainfully reproduce section 33(2) of the act which reads as under : '33(2) if the said chief judge, after making such inquiry as he deems necessary, finds that the election was valid election and that the person whose election is objected to is not disqualified he shall confirm the declared result of the election. [if he finds that the person whose election is objected to is disqualified for being a councillor be shall declare such person's election null and void. if he finds that the election is not a valid election he shall set it aside. in either case he shall direct that the candidate, if any, in whose favour the next highest number of valid votes is recorded after the said person, and against whose election no cause of objection is found, shall be deemed to have been elected.]similarly section 34 also needs to be reproduced and it reads as under : '[34. procedure if election fails or is set aside. -[(1) if at any general election or on election held to fill a casual vacancy, no councillor is elected, or the election of any councillor is set aside under sub-section (2) of section 33 and there is no other candidate who can be deemed to be elected in his place under the said sub-section [the state election commissioner] shall appoint another day for holding a fresh election and a fresh election shall be held accordingly.] (2) a councillor elected under this section shall be deemed to have been elected to fill a casual vacancy under section 9.]'33(1) requires that when a petition is filed, disputing the election of a councillor and in case the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant has to make parties to the application all candidates who although not declared as elected, have according to the results declared, by the state election commissioner under section 32, a greater number of votes than the said candidate. in the instant case, there is no dispute that respondent no. 2 had secured the next highest votes. the petitioners in the election petition also sought a declaration that respondent no. 2 ought to be declared as elected. we then have section 33(2) which confers the power on the chief judge on a finding that the election is not a valid election, to set aside the election and to direct that a candidate if any in whose favour the next highest number of valid votes is recorded, after the said person and against whose election no cause of objection is found, to be deemed to have been elected. a perusal therefore of sub-section (2) would make it clear that it is a power conferred on the chief judge in the course of an election petition. in other words, after the petition has been disposed of and a declaration is given, it would not be open to the chief judge to exercise jurisdiction to declare elected any other person including a person like the petitioner who contends that he had secured the third highest number of votes. once that is the case, any order, if had been passed by the chief judge subsequent to the disposal of the petition would be without jurisdiction. in other words, the petitioner cannot claim to be elected pursuant to a power conferred under section 33(2). 5. it is, however, the submission on behalf of learned counsel for the petitioner that a reading of section 34 of the act would make it clear that on a vacancy arising on account of disqualification, the next candidate having the highest number of votes will be declared to be elected. section 34 provides that if at any general election or election held to fill a casual vacancy, no councillor is elected, or the election of any councillor is set aside under sub-section (2) of section 32 and there is no other candidate who can be deemed to be elected in his place under the said sub section then to hold fresh elections for the vacancy which has arisen. in the instant case respondent no. 1 was elected at the general election. on his election being set aside, respondent no. 2 was deemed to be elected, pursuant to a prayer in the election petition and the power conferred on a judge entertaining the election petition to declare the candidate with the next highest votes to be deemed to be declared as elected. this deemed declaration is pursuant to the exercise of a statutory power. there must therefore exist a statutory power in an authority to declare that the petitioner has been deemed to be declared as elected. there is no statutory power. the issue of the petitioner being elected under section 33(2) would not arise because the election petition itself had been disposed of and the power is in the chief judge to issue a declaration in respect of a party before it. out side section 33(2) there is no other power. in other words, in so far as the petitioner is concerned, no such declaration could have been given. once that be the case, considering section 34, the election commissioner is mandated to proceed to hold the fresh election for the vacancy which has been occasioned.6. considering the above, as there is a vacancy, the election commissioner was right in proceeding to fill in the vacancy by holding elections. on behalf of respondent no. 3, learned counsel has produced before us a notification dated 5th september, 2005 whereby nominations have been invited for holding elections to the seat caused on account of the setting aside of the election of respondent nos. 1 and 2. that being the case, the petition is devoid of merits. rule discharged.there shall be no order as to costs.