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1982 DIGILAW 91 (KAR)

A. JAGADEESH v. DIRECTOR OF TECHNICAL EDUCATION

1982-03-19

M.P.CHANDRAKANTARAJ

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M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS matter coming up for further orders, by consent of counsel, is taken op for final disposal and disposed of by the following order. The urgency is that it involves the career of a student of an Engineering College at Hubli. ( 2 ) THE facts of this case may be briefly stated as follows. The petitioner is a resident of Karnataka. He is a graduate of Karnataka university having obtained the Degree of bachellor of Science with Physics, Chemistry and Mathematics as optional subjects. On an average in those subjects, he has secured 54. 3% marks. B. V. Bhoomaraddi College of Engineering and Technology at Hubli is a private Engineering college aided by the State affiliated to the karnataka University. As per the Rules of admission, that college has a quota of seats to be filled by the Management. The petitioner applied to that college for a seat in the aforementioned management quota and was selected and admitted to the B. E. degree course commencing from the academic year 1981 82. The course is a four years' course. The petitioner is now aggrieved by the order passed by the 1st respondent Director of Technical Education in Karnataka, Bangalore, disapproving his admission to (he 2nd respondent-college on (he sole ground that he is a b. Sc. , graduate and was not eligible in accordance with R. 3 (1) (c) and (d) of the karnataka Engineering Colleges and Technological Institute (Selection of Candidates for Admission) Rules, 1979 (hereinafter referred to as 'the Rules') framed by the State of Karnataka in exercise of Us executive powers under Art. 162 of the constitution of India. The impugned notification of the 1st respondent-Director is as follows :"approval is accorded for admission of 62 candidates selected by the Management as per the statement appended to this memo for SI Nos. 1 to 62, except si. No. 40, subject to the following conditions. 1) Eligibility certificates in respect of si. Nos. 8, 15, 16, 21, 22, 28, 37, 42, 43, 49, 53, 54, 60, 61 and 62 should be obtained from Karnataka University with intimation to this office before their admission". (Underlining (italics) is mine ). The above communication is addressed to the Principal of the 2nd respondent college. SI. No. 40 mentioned in the order relates to the petitioner. Nos. 8, 15, 16, 21, 22, 28, 37, 42, 43, 49, 53, 54, 60, 61 and 62 should be obtained from Karnataka University with intimation to this office before their admission". (Underlining (italics) is mine ). The above communication is addressed to the Principal of the 2nd respondent college. SI. No. 40 mentioned in the order relates to the petitioner. Petitioner approached this Court on 29-10-1981 and this Court called upon the respondent to show cause why rule should not be issued on 2-11 1981. At the same time this court permitted the petitioner to attend classes at his own risk and subject to the 2nd respondent permitting him to so attend the classes. It is not in dispute that the petitioner has continued in the college and is abont to take his examination for the I year B. E. , Examination. ( 3 ) SRI S. G. Bhat, learned counsel appearing for the petitioner contended that the communication of the 1st respondent at Annexure D, part of which has been extracted above, is clearly impermissible in so far as the petitioner is concerned as he is duly qualified in accordance with the ordinances framed by the Academic Council of the Karnataka University, which provide for both Pre University Students as well a$ B. Sc. , students having Physics, chemistry and Mathematics as their optional subjects and having passed in those subjects obtaining 50% of marks on the average in the aggregate in those subjects. It is further contended by Sri Bhat that the petitioner being a student admitted to the 2nd respondent College in the Management quota, the Director of Technical education has no control over his admission under the so called Selection Rules much less accord or disapprove his admission. ( 4 ) THE thrust of the argument of Sri bhat is that once the Academic Council has prescribed the eligibility by Ordinances framed by it, the power of the Executive to pass an order to set at nought those regulations would not be available to it under Art. 162 of the Constitution of india. ( 4 ) THE thrust of the argument of Sri bhat is that once the Academic Council has prescribed the eligibility by Ordinances framed by it, the power of the Executive to pass an order to set at nought those regulations would not be available to it under Art. 162 of the Constitution of india. Further, elaborating his arguments, he has stated that the Karnataka University is a duly incorporated University under the Karnataka State Universities act, 1976 and as such it is an 'authority' within the meaning of that expression occurring in Art. 12 of the Constitution and the Ordinances made by that University or any authority of that University has the force of law, while the Selection rules made by the State of Karnataka in exercise of its powers under Art. 162 of the Constitution is no law at all as declared by this Court in Gokul Education trust v. State of Karnataka (1) and therefore, the 1st respondent-Director had neither jurisdiction nor the authority under law to disapprove the admission of the petitioner which conforms to the ordinances of the University and therefore, the communication at Annexure-D sent to the 2nd respondent bearing the date 20 10-1981 in so far as the petitioner is concerned is illegal, interfering with his rights guaranteed under Arts. 14 and 19 of the Constitution to prosecute his studies in the Engineering College. ( 5 ) AS against these contentions, Sri m. H. Motigi, learned Cousel for the 1st respondent has strenuously contended that the Selection Rules, 1979, made by the state apply both to the Colleges run by the State Government as well as those aided by it and run by private Managements. In the Rules, R. 6 provides for the manner in which the quota of seats available to the Management should be filled. It provides inter alia that cl. (a) and (b) of sub rules (1) and (2) of R. 3 shall not apply for selection of candidates by the Management when seats in the management Pool are filled. But, however, the Management shall as far as possible select candidates satisfying the requirements specified in sub-cls. (a) and (b) of sub-rules (1) and (2) of R. 3 of the rules. Sub-rule (1) of R. 3 of the Rules provides for both eligibility by domicile as well as the academic eligibility to join the b. E. , Degree Course. But, however, the Management shall as far as possible select candidates satisfying the requirements specified in sub-cls. (a) and (b) of sub-rules (1) and (2) of R. 3 of the rules. Sub-rule (1) of R. 3 of the Rules provides for both eligibility by domicile as well as the academic eligibility to join the b. E. , Degree Course. Inter alia it provides that no student shall be eligible for admission unless he has passed the two year PUC examination or in any other examination declared as equivalent thereto by the concerned University in Karnataka, with Physics, Chemistry and Mathematics as optional subjects and English as one of the languages, It further provides under sub-cl (d) of sub rule (1) of R. 3 that such a candidate should have obtained in the aggregate not less than 50% of the marks in the said three optional subjects in the II year PUC or in the equivalent examination. Under R. 5 of the Rules the Selection Committee constituted has power to allocate the selected candidates to such of the Engineering Colleges as the Selection committee deems fit. ( 6 ) THE learned Government Pleader has further drawn my attention to sub rules (5) and (6) of R. 6 of the Rules which provide for selection made under that rule to be forwarded to the Director of Technical Education in Karnataka, Bangalore, to scrutinise the selection and confirm the selection if the selection is in order. He, therefore, contends that the Director has the jurisdiction to approve or disapprove the selection made by the Management in the instant case and scrutiny having found that the petitioner had not secured in the ii Year PUC examination 50% average in the aggregate in the relevant optional subjects, he was right in disapproving the the selection made of the candidate by the management. ( 7 ) THE power to scrutinise the selections made by the Management undoubtedly there is in accordance with the rules. ( 7 ) THE power to scrutinise the selections made by the Management undoubtedly there is in accordance with the rules. But, the question is, whether the rules made by the Government in exercise of its powers under Art. 162 of the Constitution should be so construed as to have conferred power in the Director of Technical Education in the State of Karnataka to ignore the prescription of eligibility made by one of the Universities incorporated under the Karnataka Universities, state Universities Act 1976 and annul the selection even though it conforms with the prescription of the Universities in regard to academic eligibility. ( 8 ) IT is now well settled law that the executive power of the State under Art. 162 of the Constitution does not extend to a field which is already occupied by Legislation made by the Legislature of that State. The power to prescribe academic eligibility for Courses offered by the Universities in the State of Karnataka is conferred on the academic Council, one of the authorities of the Universities, under S. 39 of the Karnataka State Universities Act the said S. 39 enables the Academic council to frame regulations in that behalf. That such Regulations (Ordinances) have been framed by the Karnataka University is not disputed by the learned government Pleader. But he contends that he is not aware of such Ordinances. This submission is not fair in as much as a true copy of the Ordinance has been produced along with the petition at 'annexure B' and the 1st respondent has not chosen to contradict the tame by an affidavit. The ordinances framed by the university have the force of law. Therefore to whatever extent the state Government may have the power under Art. 162 of the Constitution to make Rules for selection to those Engineering Colleges and other Technological Institutions in the State of Karnataka, that power does not extend to prescribe qualifications contrary to the prescriptions made by the university. No doubt, it does not prevent the State to prescribe what the University has already prescribed but it only cannot prescribe in derogation of the prescription made by the University acting under S. 39 of the Karnataka State Universities Act or having acted earlier, saved by the 1976 act. In this context, it is useful to extract a passage from the decision of the Supreme Court in Chitraleka's (2) case. In this context, it is useful to extract a passage from the decision of the Supreme Court in Chitraleka's (2) case. "state Government would be within its rights to prescribe qualifications for admission to Colleges so long as its action does not contradict any other law". On the facts of that case, the Supreme court further held, "the Academic Council shall have the power to prescribe conditions for admissions of students to the University and, in exercise of its power, it has prescribed percentage of marks which a student shall obtain for getting admission in a Medical or Engineering College, the orders of the Government do not contravene the minimum qualifications prescribed by the University". In other words, so long as the prescription of qualifications in the selection Rules do not run counter to the prescription by the Academic Council of the concerned University, the exercise of the State power cannot be said to be in excess of its power. But, when an officer of the State totally ignores the prescription made by the Academic Council in regard to admission to Engineering colleges within its jurisdiction and annuls the admsssion solely on the ground that it does not conform to the prescription of eligibility under the executive order such as the Selection Rules, then he is contravening the law of the university. It is in that sense that the impugned communication is illegal in so far it relates to the petitioner. ( 9 ) THEREFORE, that part of the communication which does not approve the selection of the petitioner is liable to be quashed and it is so quashed as being contrary to law. ( 10 ) IT is unnecessary to make any further direction to accord approval in the light of the discussion made above. The 2nd respondent has already admitted the student as the student satisfied the requirement of the University in so far as it relates to academic eligibility and should honour its action. ( 11 ) ONE of the things that is required to be noticed before parting with the case is that the 2nd respondent has not entered appearance though he is presumed to have been served as more than 15 days have elapsed after the notice has been sent. Therefore, this order is made ex parte the 2nd respondent. Rule will accordingly issue and be made absolute. --- *** --- .