Sukumar Biswas Vs. 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. - made in good faith and for the protection of one's interest. under the ninthexception, it is not defamation to make an imputation on thecharacter of another provided that the imputation be made in goodfaith for the protection of the interest of the person making it, or ofany other person, or for the public good. he can, therefore, very legitimately be said to have done this thingin good faith.m.b. ghodeswar, j.1. the applicant sukumar has filed this application under section 482 of the criminal procedure code read with article 227of the constitution of india praying for quashing the order issuing process andcriminal proceedings in criminal case no. 10 of 1990 and the order passed bythe sessions judge, akola dated 6.9.1990 in criminal revision no. 183 of1990.2. shortly stated, the facts of the case arc that the applicant wasmarried with one preeti biswas (nee) mondal on 10.5.1984 and they wereresiding.in calcutta. that the wife of the applicant deserted the applicant inthe year 1989. the applicant filed a suit for divorce on 22.11.1989 and thereinhe has pleaded in addition to ground of the desertion and cruelty, adulterywith the non-applicant no. 2 mukund behari. summons of the suit wereissued. the non-applicant no. 2 was serving as chief executive officer, zillaparishad, akola where he received the summons of the case. he has filedcriminal case no. 10 of 1990 in the court of judicial magistrate first class,akola against the applicant under sections 294, 499 read with 500 of the indianpenal code on the ground that the averments made against him in the suit fordivorce are defamatory. the summons of the complaint case were received bythe applicant.3. the applicant therefore had moved the court of magistrate undersection 309 of the criminal procedure code for stay of the proceedings. theapplication came to be rejected on 9.7.1990. the applicant therefore preferredcriminal revision no. 183 of 1990. before the sessions court, akola whichwas also rejected on 6.9.1990. thereafter, the applicant filed an applicationfor exemption under section 205 of the criminal procedure code in the courtof trial magistrate, akola which was also rejected. hence the applicant haspreferred the instant application.4. shri parchure, the learned advocate for the applicant, has raisedthe following points :-(1) the criminal court of akola has no jurisdiction as the publishingof information is at calcutta and if at all the non-applicant wantsto prosecute the applicant, he has to file proceedings before thecompetent court at calcutta ;(2) ninth exception to section 499 of the indian penal code coversthis case.he has placed reliance on , bhagat singh sethi andothers v. zinda lal and {sukhdeo vithal pansare v.prabhakar sukhdeo pansare and another).5. shri n. phadnis, learned advocate for the respondent no. 2, hassupported the order of the trial court.6. in the case of bhagat singh sethi and others v. zinda lal , in para 8 of the judgment on the facts of that case, it is held thatthe case of the petitioner was covered by exception 9 to section 499 of ther.p.c. in the case of sukhdeo vithal pansare v. prabhakar sukhdeo pansareand another. 1974 cri. l..t. 1435 it is held that imputation on character ofanother. made in good faith and for the protection of one's interest. exception9 to section 499 is applicable.7. in para 7 of the said judgment, it is held --'even if it is said to have been published, the petitioner will beprotected by exception 9 to ztion 499, i.p.c. under the ninthexception, it is not defamation to make an imputation on thecharacter of another provided that the imputation be made in goodfaith for the protection of the interest of the person making it, or ofany other person, or for the public good. admittedly the imputationwas made for the protection of the petitioner and the petitioner'sfamily interest. i have no doubt also that he has done it in goodfaith because he has taken due care and attention before sending thenotice through his lawyer. after all the reply was to the claim madeby the complainant. it was sent through a lawyer under instructions.he did not advise his lawyer to publish the notice in a newspaper.he can, therefore, very legitimately be said to have done this thingin good faith. in other words he had done it with due care andattention. in this view also, therefore, the order of conviction is notproper.'8. in view of the legal position, there is much substance in the contentions of shri parchure.9. the application is, therefore, allowed. the impugned orders are quashed and set aside. similarly, criminal proceedings in criminal case no. 10/90pending before the trial magistrate are also quashed and set aside. rule madeabsolute in the above terms.