Smt. Sunita Karbotkar, Vs. Shri Satish Rajaram Nachinolkar and His Wife, - 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.r.c. chavan, j.1. this appeal takes exception to an order passed by the learned civil judge, senior division, panaji in special civil suit no. 26/2007/b whereby the learned civil judge restrained the appellants/defendants from carrying out any construction in the suit property till further orders.2. the facts which are material for deciding this appeal are as under:there is no dispute that the respondents/plaintiffs are the owners of the property. the appellants claim to be the legal representatives of the person who claimed to be the mundkar of the suit property. it is not in dispute that the said person arjun karbotkar had been allowed by the plaintiffs to occupy one house as caretaker of the property which comprised of four houses. arjun karbotkar filed an application for registration as mundkar in respect of the property. the application was however, dismissed by the mamlatdar (according to the learned counsel for the appellants, in default). the appellants was sought to re-construct the house, prompting the respondents/plaintiffs to approach the police and panchayat authorities and eventually the civil court. the appellants are clamped with an injunction restraining them from carrying out any construction by the impugned order.3. i have heard both the learned counsel for the appellants and the respondents.4. there is no doubt that the question whether the appellants are mundkars of the property has to be adjudicated by the competent authority. the contention by the learned counsel for the appellants that the appellants could not have been excluded from being mundkar by recourse to clause (iv) of the exception carved out in section 2 (p) of the and diu mundkars (protection from eviction) act, 1975 where mundkars have been defined. he submitted that a caretaker of the property and caretaker of the house has been distinguished in the case of shri gabriel de sa v. shri babuso pednekar and ors. reported in 1998 (1) glt 406. paragraph 4 of the plaint shows that the plaintiffs have four houses in the property and the appellants are occupying one house presumably as caretakers of the whole property. therefore, it would not be prima facie possible to hold that the appellants are not mundkars being caretakers of one of the four houses.5. mr. joshi, advocate for the respondents submitted that howsoever looked at, the appellants are not entitled to carry on construction. he has relied on the judgment in shri vicente cabral v. smt. sunandabai dayanand bandodkar reported in 1991(2) glt 331 wherein a person claimed to be a mundkar. the district judge held that the person could not be considered as a mundkar till he approached the mamlatdar and was so adjudged. in addition to this, the learned advocate shri joshi had some serious allegations about the appellants' conduct which need not be considered in this proceeding.6. from the facts unfolded, it is clear that the appellant have been occupying a house, in the property owned by the respondents. the house, for whatever reason, gave way and the appellants had commenced re-construction after obtaining permission from the panchayat to repair. the photographs filed on record show that walls to the extent of about 2 feet height with laterite stones are rebuilt. the roof is however of thatched leaves. the appellants seem to have suffered through two monsoons since the injunction had been clamped in this fashion. since the decision of the suit may take time, it may be appropriate to modify the order of the trial judge to permit the appellants to lay cement/asbestos sheets in place of thatched leaves roof as seen in the photograph no. 17 at page 107. the appellants shall not fix any additional poles or raise any further construction taking advantage of this concession. the appellants would be at liberty to approach the trial court for leave to carry out any repairs during the pendency of the suit should a contingency arise and shall not carry on any activities without such leave. any such activities shall be solely at the risk of the appellants. any such repairs/reconstruction, including one permitted by the judgment will not create any equities in favour of the appellants.7. the appeal is therefore, disposed off by modifying the order passed by the trial judge to the extent indicated above.8. all pending civil applications are disposed off.