Raju S/O Namdeo Pacharne Vs. the State of Maharashtra Through Its Secretary, Higher and Technical Education Department, Government 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. - 3 and 4 failed to do so and on that count also, the selection of respondent no. on this count itself, this petition must fail.f.i. rebello, j.1. rule. heard forthwith.2. it is the case of the petitioner that he was earlier appointed as instructor by respondent no. 3 in the industrial training institute named sant gadgebaba i.t.i. pathardi, from 01-09-1990. it his further case that thereafter he was made permanent in the year 1996. the college closed down from the academic year 2001-2002. as a result of which the services of the petitioner were terminated by an order 19-07-2001.3. respondent no. 3 institution also runs babuji avhad mahavidyalaya, at ahmednagar. the said institution advertised for two posts, one post for junior clerk and another post of library attendant sometimes on 28-03-2007. respondent no. 5 came to be selected to the post of library attendant and has been appointed.4. by the present petition, it is the contention of the petitioner that he ought to have been absorbed by respondent no. 3 in the post of library attendant as he was qualified. the qualification for appointment to the post of library attendant is h.s.c. it is next contended that the said post is to be filled in, in terms of m.e.p.s. rules. the rules would require that the post is to be advertised by publication in the newspaper published in the locality. respondent nos. 3 and 4 failed to do so and on that count also, the selection of respondent no. 5 is illegal. it may at the out set be stated that in terms of the advertisement, post was reserved for s.t./o.b.c. the petitioner belongs to s.c.5. reply has been filed on behalf of respondent nos. 3 and 4. it is admitted that the petitioner was appointed as instructor but that was purely on temporary basis and that every year, fresh appointment was given to the petitioner and at no point of time was the petitioner appointed on permanent basis. the petitioner's age is 43 years and as such, the petitioner was ineligible to apply for the post as advertised. the institution was closed down from the academic year 2001-2002 as there were no sufficient number of students and services of the petitioner were terminated by an order dated 19-07-2001. a reply has also been filed by the state. it is set out that the appointment of the petitioner was purely on temporary basis on fixed pay and that he is overaged at the time of recruitment for the post which was advertised. the college in which the vacancy occurred is affiliated to pune university and the appointments are required to be made in terms of the maharashtra non agricultural colleges standard code rule 1984.6. the first question that arise is whether the petitioner is entitled to have been absorbed by respondent no. 3 in respondent no. 4 institution. rules pertaining to absorption are governed by rule 26(2) of the maharashtra employees of private schools rules, 1981, which reads as under:26(2)(iii) the employees from aided schools, whose services are proposed to be retrenched shall be absorbed by the education officer in the case of primary and secondary schools or by the deputy director in the case of higher secondary schools and junior colleges of education. the order of absorption of such employees shall be issued by registered post acknowledgement due letter and till they are absorbed, the management shall not be permitted to effect retrenchment on account of any reasons mentioned in sub-rule (1).rule 26(1) sets out that a permanent employee may be retrenched from service by the management after giving him 3 months' notice, for the grounds set out therein.in other words, an employee must be permanent for the purpose of the applicability of rule 26 (2)(iii) of the m.e.p.s. rules. apart from averments made by the petitioner that he was made permanent, no order confirming his appointment or of granting permanent approval on permanent basis to his appointment by respondent - state authorities, had been produced. on the contrary, documentary evidence on record would show that the petitioner was being appointed on year to year basis on fixed salary. even though, therefore, the petitioner has been paid three month's salary, that by itself would not make the petitioner, a permanent employee.7. the second aspect of the matter is that absorption is to be done by directions issued by the education officer in the case of primary and secondary schools or by the deputy director in the case of higher secondary schools and junior colleges of education. the other aspect of the matter is that a permanent employee who has to be retrenched, cannot be retrenched till such employee is absorbed and the management is not permitted to effect the retrenchment on account of the reasons mentioned in sub rule (1) of rule 26. in the instant case, the petitioner's services were terminated. that by itself would be a clear indication that rule 26(2)(iii) would not apply in sofar as the petitioner is concerned, as otherwise, the management could not have terminated his services till such time he was absorbed in another institution. on this count itself, this petition must fail.8. the petitioner has also raised a contention that the post was not advertised as required under the m.e.p.s. rules. though the stand of the respondent- state authorities seems to be that the college standard code would apply, the fact remains that a post is in a higher secondary school, in what is described as a junior college. insofar as these institutions are concerned, they will be governed by m.e.p.s. rules to the extent that they are so applicable and the college code is not inconsistent. the post was reserved for s.t./o.b.c. candidate. the petitioner belongs to s.c. and as such, could not have applied for the said post. apart from that he was age barred. if there has been any irregularity or illegality committed by the management, it is for the respondent - state authorities while considering the issue of approval to the appointment of respondent no. 5, to look into that issue if raised before them. this court, considering that the petitioner has no right for appointment in the said post, ought not to exercise its extraordinary jurisdiction.9. for the above reasons, there is no merit in the petition. rule discharged. there shall be no order as to costs.