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2019 Supreme(Bom) 1176
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, G.S. PATEL, JJ.
Vikas Yuvraj Waydande and Ors - Petitioner
Versus
State of Maharashtra through its Department of Higher and Technical Education Department and Ors - Respondent
Writ Petition No.8478 of 2019
Decided On : 14-08-2019
Advocate Appeared:
For the Petitioner: Mr. Vijay Thorat, i/by Mr. M.V. Thorat.
For the Respondent: Mr. B.V. Samant, AGP
Headnote:
Constitution of India,1950 – Article 226 - Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admissions and Fees) Act, 2015 – Section 3(1)(2) - Scheduled Caste - Admission seats Petitioners before us have been residing in State of Maharashtra - They have fled this writ petition against 1st respondent State through its Department of Higher and Technical Education and its Directorate - 3rd respondent is the State CET Cell, which is Competent Authority for conducting the CET and effecting admission through Centralized Admission Process (“CAP”) into private professional education institutions - 4th respondent is the All India Council for Technical Education and 5th respondent is a private institute of Hotel Management and Catering Technology at which petitioners are seeking admissions to undergraduate Hotel Management Course - Petitioner No.1 belongs to a Scheduled Caste and petitioner Nos.2 and 3 belong to Nomadic Tribe category - They are domiciled in Maharashtra - After completing their 10th Standard by securing, respectively, 72%, 61% and 53.40% marks, in 2019, they completed Higher Secondary Certificate Course (12th Standard) and each of them secured more than 45% aggregate marks - Petitioners seek admission to Hotel Management and Catering Technology course - It is a four-year full-time degree course - Petitioner Nos.1 and 2 appeared for Maharashtra CET - Petitioner No.3 did not appear for any such test - Petitioners submit that upon inquiry with authorities they realized that a large number of seats have remained vacant in this course - Number of students applying for admission is less than number of available seats - Whether Government of India and Government of States have powers to prescribe for any tests for such students and surely they cannot be a part and parcel of a common admission process and common admission, entrance test – Held, thus, Supreme Court very clearly makes a distinction between admissions in accordance with the rules and admissions beyond rules - Merely because some seats are vacant, no student or college, in the teeth of existing and prevalent rules of State and the Universities can say that such rules should be ignored or thrown aside whenever there are unfilled vacancies in colleges, is clear principle laid down in this decision - Law laid down in this decision is therefore binding on court - Court do not think that even otherwise there is any scope for an argument to introduce students on the basis of their qualifying marks after some students or at least some of them like petitioners before us have taken their chance by appearing at the CET - They were not so lucky for the merit list, which is stated to be maintained after results of this CET were declared, do not provide any admission to courses desired by the petitioners - Petitioners then looked out for vacant seats in other colleges - Once they could not get admission on the basis of the interse- merit, which is the foundation for admission to this institution, they fall back on their qualifying marks and seek admission - If court allow such introduction and by a back door method, then, whole gamut of the Rules and Regulations placed before us would be set at naught and the legislation totally redundant - In the process the act enacted by Competent Legislature would be rendered otiose - Court do not think that court can place an interpretation, as desired , on the scheme of these Rules and which enables introduction of petitioners against vacant seats, contrary to law - Writ petition fails.
JUDGMENT :
S.C. DHARMADHIKARI, J.
1. Rule. Respondent Nos.1 and 2 waive service. Respondent Nos. 3 to 5 being formal parties and since affidavits are not necessary to be fled, on the basis of the petition and its annexures, by consent heard finally.
2. By this writ petition under Article 226 of the Constitution of India, the petitioners are praying that the criteria of appearing for a Common Entrance Test (“CET”) prescribed under Rules and 8(4)(e) of the Information Brochure and at serial No.5 of Schedule- B of Notification dated 19th May 2018 published by the State of Maharashtra be relaxed for admission to the Hotel Management and Catering Technology Course for the Academic Year 2019-20.
3. A direction is also sought to the CET Cell to admit the petitioners to this course at respondent No.5 college on the basis of the eligibility criteria prescribed under Appendix-1, Clause 1.3 of the Approval Process Handbook 2019-20 published by the All India Council of Technical Education. Prayer clauses (c) and (d) also require a reference and hence are reproduced below:
“(c) hold and declare that students passing HSC examination with 45% aggregate marks in the said examination (and 40% in case of candidates belonging to reserved category) only are entitled to pursue undergraduate Hotel Management and Catering Technology Course for the academic year 2019-20;
(d) in the alternative, direct the Respondent CET Cell to admit students from other CETs to Hotel Management and Catering Technology Course after having exhausted the list of candidates from B. HMCT-CET-2019;”
4. The petitioners before us have been residing in the State of Maharashtra. They have fled this writ petition against the 1st respondent State through its Department of Higher and Technical Education and its Directorate. The 3rd respondent is the State CET Cell, which is the Competent Authority for conducting the CET and effecting admission through Centralized Admission Process (“CAP”) into private professional education institutions. The 4th respondent is the All India Council for Technical Education (“AICTE”) and the 5th respondent is a private institute of Hotel Management and Catering Technology at which the petitioners are seeking admissions to undergraduate Hotel Management Course.
5. Petitioner No.1 belongs to a Scheduled Caste and petitioner Nos.2 and 3 belong to Nomadic Tribe category. They are domiciled in Maharashtra. After completing their 10th Standard in the year 201 by securing, respectively, 72%, 61% and 53.40% marks, in 2019, they completed the Higher Secondary Certificate Course (12th Standard) and each of them secured more than 45% aggregate marks. The petitioners seek admission to Hotel Management and Catering Technology (“HMCT”) course. It is a four-year full-time degree course. Petitioner Nos.1 and 2 appeared for the Maharashtra CET-2019. Petitioner No.3 did not appear for any such test. The petitioners submit that upon inquiry with the authorities they realized that a large number of seats have remained vacant in this course. The number of students applying for admission is less than the number of available seats in the State of Maharashtra. After setting out the development of this course and, particularly, how its administration is controlled by the AICTE, the petitioners make a detailed reference to the Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admissions and Fees) Act, 2015 (Maharashtra Act No. XXVIII of 2015). It is submitted that under sub-sections (1) and (2) of Section 3 of the Act, the State of Maharashtra issued a Notification specifying eligibility conditions and requirements for admissions to HMCT course. Annexure “D” is a copy of the Notification dated 19th May 2018 issued under this provision. That prescribes the eligibility criteria for the HMCT course in the State of Maharashtra. For ready reference, ser
