Principal, Micky School, English Medium Vs. the State of Maharashtra and ors. - Court Judgment

Excerpt:
- 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.1. this petition was initially listed before the hon'ble single judge of this court who on 24.2.2005 passed an order holding that the petition is tenable only before the division bench of this court for which the learned single judge placed reliance on the provisions of rule 18 in chapter xvii of high court (appellate side) rules, 1960.2. the question of hearing a writ petition filed under article 226 or 227 of the constitution or a petition filed under article 226 & 227 of the constitution has been a debatable question on several occasions. office also in many cases finds it difficult to list a particular petition before appropriate bench as there is some confusion in this regard. in our opinion, therefore it is necessary that the entire aspect is clarified and stated as law applicable.3. the high court of judicature at bombay has framed rules and procedure for working out matters on the appellate side of the high court, they are called bombay high court appellate side rules, 1960. these rules provide extensively for the manner and the procedure according to which several different kinds of litigations are to be conducted in this court. part 1 of these rules deals with conduct of business and chapter i of that part 1 deals with jurisdiction of single judges and benches of high court. rule 1 in this chapter provides that the civil and criminal jurisdiction of the courts on appellate side shall, except in cases where it is otherwise provided for by these rules, be exercised by division court consisting of two or more judges.4. then rule 2 of chapter i provides what matters can be disposed of by a single judge. it also stipulates that save as otherwise expressly provided by these rules, a single judge may dispose of the following matters as provided under the head of civil and criminal.5. then rule 2-b of chapter i provides that all petitions under articles 226 and/or 227 of the constitution of india arising out of or relating to an order of penalty or confiscation or an order otherwise of a penal character and passed under any special statute shall be heard and decided by a division bench hearing writ petitions.6. thus, order of penalty or confiscation or having a penal character passed under any special statute are required to be heard by a division bench. the chapter then deals with other aspects of exercise of jurisdiction with which we are not concerned.7. then chapter xvii of part 1 specifically deals with the petitions under articles 226 and 227 and applications under article 228 of the constitution of india and rules for issuance of directions, orders or writs under article 226 of the constitution shall if the matter in dispute is or has arisen substantially outside greater bombay be heard and disposed of by a division bench to be appointed by the chief justice. then other rules prescribe the requirements of the writ petitions.8. rule 4 then provides that an application under rule 1 shall be heard and disposed of by a division bench, but a single judge may grant rule nisi provided he does not make any final order on the application. the other rules provide for various other requirements with which we are presently not concerned.9. then rule 17 deals with applications under articles 227 and 228 and it provides that such application shall be filed on the appellate side of the high court and be heard and disposed of by a division bench to be appointed by chief justice. it will thus be seen that wherever it was found necessary or expedient by this court specific provision was made regarding hearing of such writ petitions by a division bench.10. then comes rule 18 of chapter xvii which provides that notwithstanding anything contained in rule 1, 4 and 17 of this chapter i.e. chapter xvii applications under article 226 or 227 or under articles 226 & 227 may be disposed of by the learned single judge of this court and proceeds to enumerate the categories of orders or enactments which are to be dealt with by the learned single judge. it will thus be seen that provisions of rule 18 of chapter xvii is a provision made in relation to rules in chapter xvii and therefore are rules which as contemplated by rules 1 and 2 of chapter i provide for hearing by a learned single bench. as we have noticed above that rules 1 and 2 both of chapter i provide for exception in cases where it is otherwise provided for by these rules. language of rules 17 and 18 in the circumstances is required to be noted. rule 18 of chapter xvii says notwithstanding anything contained in rule 1, 4 and 17 of this chapter i.e. chapter xvii the following applications mentioned in the said rule are to be heard by the learned single judge. it means rule 18 is a provision which is a case where it is otherwise provided by these rules that the matters can be heard by the learned single judge. clauses 1 to 43 of this rule 18 provide various categories of orders passed by under various enactments which are required to be dealt with by a learned single judge of this court. sub-clause 3 however is omnibus clause which reads thus:'the decrees or the orders passed by any sub-ordinate court (or by any quasi judicial authority) in any suit or proceedings (including suits and proceedings under any special or local laws), but excluding those arising out of the parsi chief matrimonial court.'according to these provisions therefore any decree or order passed by any subordinate court or quasi judicial tribunal in any suit or proceedings including suit or proceedings in any suit or legal law are to be dealt with by a single judge. it will thus be clear from the conjoined reading of all the relevant provisions that according to rule 18 of chapter xvii all petitions mentioned in that rule in sub-clauses 1, 2 and 4 to 43 are to be dealt with by a single judge and this will not present any difficulty in classification. the problem as has been raised in the present case arises on interpretation of chapter xvii rule 18 clause 3 quoted above. we have explained how this rule 18 operates.11. in our opinion, the position in regard to hearing of writ petitions under bombay high court appellate side rules, 1960 is clear. all writ petitions under articles 226 and/or 227 or under article 226 or under article 227 are to be heard by learned single judge of this court. exceptions having been provided by clause 2-b of chapter i and ratio laid down by supreme court in relation to articles 323a and 323b. therefore writ petitions covered by clause 2- b, writ petitions arising out of orders made by administrative tribunals established under 1985 act and orders passed by such special tribunals as are created under the constitution and all other matters are required to be herd by the learned single bench. the order impugned in the present petition is passed under the provisions of persons with disabilities (equal opportunities protection of rights and full participation) act, 1995 which is a special law enacted for protection of persons mentioned therein. it is therefore a special enactment or law and the order made thereunder is squarely covered by the provisions of clause 3 of rule 18 of chapter xvii being the order made by an authority under special act. the registry is therefore directed to place the matter before the appropriate bench. interim order already granted to continue.