irfan Ahmed Shaikh Vs. Mumtaz and anr. - 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. - , also perused the photographs tendered by the petitioner's advocate which showed that the minor child was very much comfortable and happy in the company of the petitioner and allowed the prayer of the petitioner/father to have overnight access of the child husna. 4. earlier when the court had a talk with the child husna it transpired that the child was tutored to some extent but she admitted inspite of this that she liked her father and that she was not scared of him. 1 was not happy with him as he could not provide various types of luxury to her. the child appeared to be absolutely comfortable and happy in her father's company. he said that he loved his daughter very much and wanted to have her company.p.d. upasani, j.1. this custody petition is filed by the petitioner/ father for the custody of his minor female child husna who is about 5 years old. he has also taken out interim petition for access of the child and also permission to have over night access. respondent no. 1 is the ex-wife of the petitioner who is now divorced and has remarried another person by name abdul karim sarfani and also has a child from him aged about 11/2 years. no reply was filed to this interim custody petition by the respondent. when the matter came up for hearing on 14.8.1996, advocate for the petitioner-husband miss irani was present. however, respondent and her advocate were absent. since no reply was filed to the interim custody petition, the court heard the advocate for the petitioner, perused the proceedings, also perused the previous orders dated 26.7.1995 passed by mr. rane, j. and order dated 18.4.1995 passed by mr. a.p. shah, j., also perused the photographs tendered by the petitioner's advocate which showed that the minor child was very much comfortable and happy in the company of the petitioner and allowed the prayer of the petitioner/father to have overnight access of the child husna.2. subsequently, advocate mr. sirguroh appeared for the respondent and requested that since this order was passed ex parte without hearing the respondent, the matter be heard again on merits. in fact, the respondent took out interim petition praying that the order passed by this court on 14.8.1996 granting overnight access to the petitioner-husband be set aside and that the petitioner be restrained from taking the minor child at night to his place. the petitioner's advocate did not raise any objection about the matter being again heard on merits. accordingly, the matter was heard on merits in chamber. prior to that the court interviewed the child husna in chamber. the court also interviewed the petitioner-husband and the respondent no. 1, ex-wife of the petitioner in the presence of their advocates. the child was sent out of chamber at that time alongwith her grant mother.3. the contention of mr. sirguroh appearing for the respondent is that the child is of a very tender age and therefore the petitioner should not be permitted to have over-night access of the child. it was also contended that the child was afraid of him and was not comfortable in the company of her father.4. earlier when the court had a talk with the child husna it transpired that the child was tutored to some extent but she admitted inspite of this that she liked her father and that she was not scared of him. in fact, she had nothing to say either for or against about the over-night access. the child really of being tender age was quite immature to understand the nature of things. but one thing was certain that she was not against the idea of meeting her father or residing with him at his residence and to have over-night access.5. it is an admitted position that respondent no. 1 and the petitioner are no more wife and husband. it is the contention of the petitioner that he was forced to divorce respondent no. 1 though he had no intention to do so on the ground that he was a violin player having modest earnings. respondent no. 1 was not happy with him as he could not provide various types of luxury to her. this contention is not seriously denied by the respondent. it is an admitted position that accordingly, the petitioner and respondent no. 1 were divorced on 16.1.1991. the custody of the minor child husna remained with the respondent nos. 1 and 2 though petitioner was allowed to visit the minor child husna occasionally. he was also paying rs. 500/- per month for her maintenance.6. it is also an admitted position that on 18.6.1993, respondent no. 1, got remarried to one abdul karim sarfani and has got a child from him.7. i have already seen the album containing photographs of the petitioner and the child husna. they appeared to be natural photographs which can be of any father and daughter. the child appeared to be absolutely comfortable and happy in her father's company. she was not looking scared at all as is alleged by the respondent.8. petitioner has submitted that even though the respondent no. 1 has remarried, petitioner has not re-married just for the sake of his child husna. he has stated that it is his urge that his daughter should grow into a fine woman and that he should be able to provide all comforts to her. he said that he loved his daughter very much and wanted to have her company. he further said that he was staying with his old mother, brother and 'bhabhi' and therefore there was no impediment if an over-night access was given. he also pointed out that when the minor child would stay in the company of a total stranger who was the second husband of respondent no. 1 what was wrong if the child was allowed to stay for over-night or as in the company of her natural father.9. i totally agree with the submissions made by the petitioner and his advocate miss irani. the petitioner is not living alone. he is staying alongwith his old mother, sister-in-law and brother. therefore, i do not have any apprehension about granting an over-night access of the child husna even though she is of a tender age. i have seen the photographs along with her grand mother also where she appeared to be completely at ease. it is an admitted fact that respondent no. 1 is re-married. therefore, the second husband of respondent no. 1 is certainly a stranger to husna. there is not a word anywhere in the proceedings that he has any affection for husna nor it has been stated so across the bar or in the chamber. the petitioner's conduct and urge to have access of the child appears to be absolutely genuine and honest. i, therefore, have no hesitation in confirming my earlier order which .was passed without hearing the respondent's side. now i have heard at length mr. sirguroh and i do not find any substance in his submissions. i, therefore, reject the interim petition whereby prayer is made that the earlier order dated 14.8.1996 be set aside. the said order continues and overnight access of the child husna has to be given to the petitioner-husband. access also should be given during diwali, christmas and summer vacations. that can be done by mutual adjustment. hence, the following order :the interim petition is dismissed. however, the same to be registered and numbered.