Kotesh Rajavir Bhandari Vs. the State of Maharashtra - 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. - saldanha, j 1. this appeal preferred through jail came up for admission before me on 28-9-1992. after going through (be record, it occurred to me that the appellant-accused, who is in custody and who is a very poor person, should be granted expeditious hearing because the only question for consideration was the matter of sentence. he pointed out to me that the deceased was married to the appellant in the year 1986 at which time the appellant's father bad spent about rs. 5. on the question of sentence, shri rao makes a strong plea that the appellant is aged only 22 years, that the sentence is unduly heavy and that, consequently, this court should reconsider the matter. 6. shri rao has done a good job of the appeal and that too at short notice.m. f. saldanha, j1. this appeal preferred through jail came up for admission before me on 28-9-1992. after going through (be record, it occurred to me that the appellant-accused, who is in custody and who is a very poor person, should be granted expeditious hearing because the only question for consideration was the matter of sentence. the record and proceeding was, therefore, sent for and this court was required to request shri a.s. rao, learned advocate, to appear as amicus curiae and assist the court, particularly in view of the fact that the record is considerably heavy and required to be examined at short notice. 2. the prosecution alleged that the accused was responsible for the suicide of his wife dhanalaxmi on 23-6-1991. in the afternoon of that day, the body of dhanalaxmi was found floating in the village tank and the matter was reported to the police. there were no visible or serious injuries on the body to suggest a homicidal death. in the absence of any evidence to the contrary, the conclusion was that she had died of drowning. the all important question before the court was the question as to whether the appellant-accused was in any way responsible for her death. the police received a complaint from her father bodayya (p.w. 1) on 25-6-1991 and arrested the accused on charges punishable under sections 306 and 498a of the indian penal code. the investigation was completed and the accused came to be charge-sheeted. the learned 7th assistant sessions judge, thane convicted the appellant-accused for the offences punishable under sections 306 and 498a of the indian penal code and awarded, rigorous imprisonment for five years and to pay a fine of rs. 5.000/-, in default, to suffer rigorous imprisonment for one year under the first head of charge, end to rigorous imprisonment for two years and to pay a fine of rs. 1,500/-, in default to suffer rigorous imprisonment for four months under the second bead of charge. the present appeal assails the correctness of these convictions and sentences. 3. shri rao, learned counsel appearing on behalf of the appellant accused, has taken me through the evidence that has been adduced by the prosecution. he pointed out to me that the deceased was married to the appellant in the year 1986 at which time the appellant's father bad spent about rs. 14.000/-, he had also given his daughter a sewing machine worth rs. 1,200/- and it is his case that the accused was constantly ill-treating the wife, that he used to consume liquor, get drunk and beat her mercilesaly, all because he was demanding a sum of rs. 5,000/- from her parents. the situation was aggravated and the wife was required to go to her father's place on more than one occasion and bodayya (p.w. 1) states that he was required, in turn, to go to the village whenever the situation was out of hand and that on these occasions, he found that his daughter's face would be swollen and that there were unmistakable signs of assault on her. in this situation all that he could do was to pacify the accused and to ask him to behave properly. it appears that in spite of these repeated requests that there was no improvement in the situation. the contention of shri rao is that all this case of ill-treatment has been put out for the first time two days after the incident, that the complaint was not made at the earliest point of time and what he points out, more importantly, is that there are no complaints, letters or any other evidence on the basis of which the statement of bodayya (p.w. 1) can be corroborated. he further sub-mils that no other family member has been examined in support of this contention. it is true that there may be no other supportive evidence, but the deposition of bodayya, who has been cross-examined, unmistakably indicates that there is no reason whatsoever for him to falsely involve or implicate his own son-in-law, particularly since the accused himself i related to bodayya being bis own nephew. 4. shrimati laxmibai (p.w. 3) virtually concludes the entire issue, she fully corroborates the evidence of bodayya (p.w. 1) on the aspect of repeated, persistent and consistent ill-treatment of the deceased dhana-laxmi. she has also deposed to the fill important fact that the deceased dhanalaxmi was severely assaulted on the night previous to the one when she committed suicide. shri rao submits that the evidence of shrimati laxmibai is vague, and secondly, that there is a lot of exaggeration in this evidence. he also contends that it appears that she is ill-disposed towards the accused because her sympathies are with the deceased wife. this head of criticism, to my mind, would not invalidate the deposition of shrimati laxmibai because there is one tell-tale circumstance, namely, the fact that the condition of the body, though rather decomposed at the time of postmortem, did indicate that there were signs on the face and on the body of the deceased having been assaulted before the death. the learned trial judge, after a very careful analysis of the material before him, has convicted the appellant-accused under both beads of charges. to my mind, there is no reason why this finding should be disturbed. 5. on the question of sentence, shri rao makes a strong plea that the appellant is aged only 22 years, that the sentence is unduly heavy and that, consequently, this court should reconsider the matter. the conduct of the accused and the circumstances of the case may not justify an unduly long jail sentence because that again has its adverse effect on the accused. on the other hand, to my mind, the appellant-accused is entitled to a fair consideration of the sentence that would be in consonance with the facts of the case. in modification of the sentence awarded by the trial court, while confirming the convictions, it is directed that the appellant-accused shall undergo sentence of rigorous imprisonment for three years and shall pay a fine of rs. 5,000/-, in default, suffer rigorous imprisonment for one year for the offence under section 306 of the indian penal code and rigorous imprisonment for two years and fine of rs. 1,500/-, in default, rigorous imprisonment for four months under the second head of charge. the substantive sentences to run concurrently. the appellant-accused shall be entitled to the set-off in respect of the period undergone by him in custody. 6. shri rao has done a good job of the appeal and that too at short notice. the fees of the learned counsel are quantified at rs. 1,500/-. office shall pay the same to learned counsel within a period of 30 days. 7. the appeal is thus partly allowed.