JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has 1 been filed by the petitioners against the respondents on 27.1.2004 with the prayer that by an appropriate writ, order or direction, the letter dated 10.1.2004 (Annex.14) by which the respondent No. 3 Maharshi Dayanand Saraswati University, Ajmer (for short the University") informed the petitioners that since their College was not having any affiliation with the respondent No. 3 University, therefore, they were asked to take back all the enrolment forms and demand draft of enrolment fee, the letter dated 17.1.2004 (Annex.15) by which the respondent No. 5 Dy. Registrar (Examination) of the University further asked the petitioners to take back their forms as the respondent No. 3 University does not conduct the Pharmacy Course and letter Ann, Jx.16 dated 20.1.2004 written by the respondent No. 3 University to the Secretary, Technical Education, Government of Rajasthan, Jaipur (respondent No. 1) stating that since the publication in the Gazette Notification was not made under Section 41(1) of the University of Ajmer Act, 1987 (hereinafter referred to as "the Act of 1987"), therefore, the Course could not be conducted by the respondent No. 3 University and thus, the petitioners' College could not be affiliated with the respondent No. 3 University for the Academic Session 2003-04 for Pharmacy Course, be quashed and set aside and the respondent No. 3 University be directed to take the examination of students admitted in the petitioners' College for Pharmacy Course for the Sessions 2003-04. 2. The case of the petitioners as put forward by them in this writ petition is as follows: The case of the petitioners is that for starting of a new Technical Institute for the D. Pharmacy Course, prior permission of All India Council for Technical Education, New Delhi (for short "AICTE") is necessary and further, no objection certificate of the State Government and that of the University with which the College would be affiliated, is also required and such condition is mentioned in the AICTE Hand Book for Approval Process (Academic Year 2003-2004) (for short 'AICTE Hand Book') and for reference, the same is marked as Annex.1. The further case of the petitioners is that since the respondent No. 3 University has started the pharmacy course, therefore, the 35 petitioners' College applied for affiliation with the respondent No. 3 University and the respondent No. 3 through letter dated 5.3.2003 (Annex.2) granted no objection certificate to the petitioners, but imposed a condition that permission of the AICTE through D.T.E. and NOC of the State Government would also be required in future. The further case of the petitioners is that for applying for permission from AICTE, it was a condition precedent that no objection certificate of the concerned University should be attached with the application. The further case of the petitioners is that the Secretary Technical Education, Government of Rajasthan (respondent No. 1) through letter dated 25.4.2003 (Annex.3) granted no objection certificate to the petitioners for opening of D. Pharmacy Course for the Session 2003-2004, which was of two years and in that letter Annex.3, the name of the petitioners' College was shown at serial No. 4 and the petitioners' College was permitted to admit 60 students in the said Course for the Session 2003-04. Apart from this, a letter of intent (Annex.4) dated 28.4.2003 was also issued by the respondent No. 2 Director, Technical Education, Rajasthan, Jodhpur clearly saying that the petitioner's application for establishment of New Technical Institution for Diploma in the academic year 2003-04 had been accepted. The further case of the petitioners is that AICTE also granted approval for the said Course for the Academic Session 2003-04 through letter Annex.6 dated 20.6.2003 and that letter Annex.6 was received by the petitioners with the forwarding letter dated 30.6.2003 (Annex.5) issued from the office of the Director, Technical Education, Jodhpur (respondent No. 2) and in the letter Annex.6 dated 20.6.2003, the name of the petitioners' College was shown at serial No. 5 and the petitioners' College was permitted to admit 60 students in the Pharmacy Course for the Academic Session 2003-04. The further case of the petitioners is that after receiving the approval of the AICTE through letter Annex.6, the petitioner's College submitted an application to the respondent No. 3 University for affiliation on 1.7.2003, a copy of which is marked as Annex.7 and along with that application Annex.7, a demand draft of Rs.50,000/- as affiliation fee was also sent by the petitioners. It may be stated here that the further case of the petitioners is that admissions in the Pharmacy Course for the Academic Session 2003-04 were made by them at their own level and they also admitted students sent by the respondent No. 4 Coordinator (Pre Pharmacy Test), Jai Narain Vyas University, Jodhpur as one common test was conducted by the respondent No. 4 for Pharmacy Course for the Academic Session 2003-04 in all over Rajasthan and the petitioners' College was required to admit the students handed over to them by the respondent No. 4 Coordinator through counselling and the petitioners' College was called to attend the counselling and the counselling was held on 7th July to 9th July, 2003 at Department of Chemistry, Faculty of Science, New Campus, Jai Narain Vyas University, Jodhpur, which is evident from the letter Annex.8 dated 1.7.2003 issued by the respondent No. 4 Coordinator. The further case of the petitioners is that the respondent No. 4 Coordinator through letter Annex.9 dated 7.10.2003 sent a list of 49 students to the petitioners' College for admission in the D. Pharmacy Course and these students were admitted by the petitioners' College and the said D. Pharmacy Course for the Academic Session 2003-04, which was of two years, was started from 1st July, 2003. The further case of the petitioners is that on 13.8.2003 the respondent No. 2 wrote a letter Annex. 10 to the respondent No. 3 University and in that letter Annex.10, it was made clear that since the State Government had already issued NOC and AICTE had also given permission to open D. Pharmacy Course in the petitioners' College from the Academic Session 2003-04, therefore, a request was made to the respondent No. 3 University to take further steps for affiliation. The further case of the petitioners is that thereafter they sent the enrolment forms of all the 78 students studying in D. Pharmacy Course for the Academic Session 2003-04 to the respondent No. 3 University through letter Annex.11 dated 30.9.2003 and thereafter, through Annex.12 dated 26.12.2003, the petitioners sent examination forms to the respondent No. 3 University. The further case of the petitioners is that thereafter they sent the enrolment forms of all the 78 students studying in D. Pharmacy Course for the Academic Session 2003-04 to the respondent No. 3 University through letter Annex.11 dated 30.9.2003 and thereafter, through Annex.12 dated 26.12.2003, the petitioners sent examination forms to the respondent No. 3 University. It may be stated here that a dispute between the petitioners and the respondent No. 3 University about admitting students as some excess students were admitted by the petitioners' College in Pharmacy Course for the Academic Session 2003-04 and ultimately through judgment dated 16.2.2004 passed in D.B. Civil Special Appeal No. 75/2004 Agarwal Pharmacy College and Anr. v. The State of Rajasthan and Ors ., the Division Bench of this Court directed that the excess admissions made by the petitioners for the current session 2003-04 be not disturbed. However, the petitioners were directed to furnish an undertaking in this Court within a week stating that they would not object to proportionate reduction of admission quota for the next year 2004-05 and abide by it. The further case of the petitioners is that they received a letter Annex.14 dated 10.1.2004 from the respondent No. 3 University by which the petitioners were informed that since their College was not affiliated with the respondent No. 3 University, therefore, they were asked to take back the enrolment forms and demand draft of enrolment fee. Thereafter, through letter dated 17.1.2004 (Annex.12) respondent No. 5 Dy. Registrar (Examination) of the University further asked the petitioners to take back their forms as the respondent No. 3 University does not conduct the Pharmacy Course. These two letters Annex.14 and Annex.15 have been challenged by the petitioners in this writ petition. The further case of the petitioners is that they also received a letter Annex.16 dated 20.1.2004 from the respondent No. 3, Jodhpur addressed to the respondent No. 1 Secretary, Technical Education, Jaipur in which it was stated that since the publication in the Gazette Notification was not made under Section 41(1) of the Act of 1987, therefore, the Course could not be conducted by the respondent No. 3 University and thus, the petitioners' College could not be affiliated with the respondent No. 3 University for the Academic Session 2003-04 for Pharmacy Course. This letter Annex.16 has also been challenged by the petitioners in this petition. This letter Annex.16 has also been challenged by the petitioners in this petition. The main case of the petitioners is that since all the formalities 50 have been fulfilled and completed by their College in respect of affiliation, therefore, at this stage to say that the petitioners' College was not affiliated with the respondent No. 3 University is nothing, but an arbitrary action on the part of the respondent No. 3 University. Hence, this writ petition with the prayer as stated above. A reply to the writ petition was filed by the respondents No. 1 and 2 and it was submitted by them that since the relief has not been sought against them, but has been sought against the respondent No. 3 University, therefore, they have nothing to say. However, they admitted that the approval for the said Pharmacy Course for the Academic Session 2003-04 was granted to the petitioners by the AICTE and that approval was for 60 seats in toto including 51 seats through Pre Pharmacy Test and 9 seats reserved for management quota, but contrary to that permission, the petitioners' College gave admission to 79 candidates in D. Pharmacy Course for the Academic Session 2003-04 as against sanctioned strength of 60 seats. So far as the giving of excess admission by the petitioners' College in D. Pharmacy Course for the Academic Session 2003-04 is concerned, that matter stands concluded in view of the Division Bench judgment of this Court in the case of Agarwal Pharmacy College (supra). A separate reply was filed by the University (respondents No. 3 and 5) and it was submitted by them that while issuing NOC through letter Annex.2 dated 5.3.2003, it was made clear that the said NOC was being issued with the clear understanding that it may not be treated as grant of affiliation to the petitioners' College and the affiliation process would be started only after receiving permission of the AICTE through the Director, Technical Education, Jodhpur (respondent No. 2) and NOC of the State Government and further, affiliation would be granted only when all the conditions of the Director, Technical education, State Government and the University are fulfilled and all the formalities as per the Rules are completed by the College. Therefore, letter Annex.2 should not be treated as NOC to start the course and it can be treated to be NOC for the purpose of grant of recommendations by the AICTE. Apart from this, in the respondent No. 3 University, there is no course of D. Pharmacy in existence and therefore, in absence of gazette notification as provided under Section 41(1) of the Act of 1987, the petitioners' College cannot be affiliated with the respondent No. 3 University and since no affiliation was obtained by the petitioners from the respondent No. 3 University prior to start of Pharmacy Course for the Academic Session 2003-04, therefore, the respondent No. 3 University is not bound to treat the petitioners' College as affiliated with it. Furthermore, mere sending of application forms and examination forms would not mean that the petitioners' College has been affiliated with the respondent No. 3 University. Hence, no case for interference is made out and this writ petition deserves to be dismissed. 3. I have heard the learned counsel for the petitioners and the learned counsel for the respondents and gone through the entire materials available on record. 4. There is no dispute on the point that the petitioners' College applied for affiliation with the respondent No. 3 University and the respondent No. 3 through letter dated 5.3.2003 (Annex.2) granted no objection certificate to the petitioners but imposed a condition that permission of the AICTE through DTE and NOC of the State Government would also be required in future. 5. There is also no dispute on the point that through letter Annex.3 dated 25.4.2003, the respondent No. 1 Secretary, Technical Education, Government of Rajasthan granted no objection certificate to the petitioners for opening of D. Pharmacy Course for the Academic Session 2003-2004, which was of two years and in that letter Annex.3, the name of the petitioners' College was shown at serial No. 4 and the petitioners' College was permitted to admit 60 students in the said Course for the Academic Session 2003-04. 6. There is also no dispute on the point that through letter of intent (Annex.4) dated 28.4.2003, the respondent No. 2 Director, Technical Education, Rajasthan, Jodhpur made it clear that the petitioners' application for establishment of New Technical Institution for Diploma in the academic year 2003-04 had been accepted. 7. 6. There is also no dispute on the point that through letter of intent (Annex.4) dated 28.4.2003, the respondent No. 2 Director, Technical Education, Rajasthan, Jodhpur made it clear that the petitioners' application for establishment of New Technical Institution for Diploma in the academic year 2003-04 had been accepted. 7. There is also no dispute on the point that through letter Annex.6 dated 20.6.2003, the AICTE granted approval to the petitioners for the said Pharmacy Course from the Academic Session 2003-04 and in the letter Annex.6 dated 20.6.2003, the name of the petitioners' College was shown at serial No. 5 and the petitioners' College was permitted to admit 60 students in the said Pharmacy Course. 8. There is also no dispute on the point that thereafter, after receiving the approval of the AICTE through letter Annex.6, the petitioners' College submitted an application (Annex.7) to the respondent No. 3 University for affiliation on 1.7.2003 and along with that application Annex.7, a demand draft of Rs. 50,000/- as affiliation fee was also sent by the petitioners. 9. There is also no dispute on the point that petitioners admitted students in the Pharmacy Course for the Academic Session 2003-04 at their own level and they also admitted students sent by the respondent No. 4 Coordinator (Pre Pharmacy Test), Jai Narain Vyas University. Jodhpur and the said Pharmacy Course started from 1st July, 2003. 10. There is also no dispute on the point that the respondent No. 2 wrote a letter Annex.10 to the respondent No. 3 University and in that letter Annex.10, it was made clear that since the State Government had already issued NOC and AICTE had also given permission to open D. Pharmacy Course in the petitioners' College from the Academic Session 2003-04, therefore, a request was made to the respondent No. 3 University to take further steps for affiliation. 11. There is also no dispute on the point that the petitioners college admitted 78 student as against the sanctioned strength of 60 in the Pharmacy Course for the Academic Session 2003-04 and thus, they admitted excess students and for that, a dispute arose between the petitioners and the respondent No. 3 University and litigation took place between them and ultimately through judgment dated 16.2.2004 in the case of Agarwal Pharmacy College (supra). The Division Bench of this Court directed that the excess admissions made by the petitioners for the current session 2003-04 be not disturbed. However, the petitioners were directed to furnish an 45 undertaking in this Court within a week stating that they would not obi:I to proportionate reduction of admission quota for the next year 2004-05 and abide by it. 12. There is also no dispute on the point that through letter Annex. 11 dated 30.9.2003, the petitioners' College sent the enrolment forms of all the 78 students studying in D. Pharmacy Course for the Academic Session 20( 3-04 to the respondent No. 3 University and thereafter, through letter Annex.12 dated 16.12.2003, the petitioners sent examination forms to the respondent No. 3 University. However, through letters Annex.14 dated 10.1.2004 and Annex.15 dated 17.1.2004, the respondent No. 3 University informed the petitioners that since their College was not affiliated with the respondent No. 3 University, therefore, they were asked to take back the enrolment forms and demand draft of enrolment fee and also examination forms as the respondent No. 3 University does not conduct the Pharmacy Course. 13. The question for consideration is whether in the above facts and circumstances of the case, the action of the respondent No. 3 University in saying that the petitioners' College was not affiliated with it, is justified or not. 14. In my considered opinion, because of the following reasons, the case of the respondent No. 3 University that the petitioners' College was riot affiliated with it cannot be accepted: (i) That in this case, the respondent No. 3 University through letter dated 5.3.2003 (Annex.2) itself granted no objection certificate to the petitioners and thereafter, vide letter Annex.3 dated 25.4.2003, the respondent No. 1 Secretary, Technical Education, Government of Rajasthan also granted no objection certificate to the petitioners for opening of 0. Pharmacy Course for the Academic Session 2003-2004 with permission to admit 60 students in the said Course and after that, through letter of intent (Annex.4) dated 28.4.2003, the respondent No. 2 Director, Technical Education, Rajasthan, Jodhpur further made it clear that the petitioner's application for establishment of New Technical Institution for Diploma in the academic year 2003-04 had been accepted and furthermore, through letter Annex.6 dated 20.6.2003, the AICTE has also granted approval to the petitioners for the said Pharmacy Course from the Academic Session 2003-04 and the petitioners' College was permitted to admit 60 students in the said Pharmacy Course and thereafter, the respondent No. 2 Director also wrote a letter Annex.10 to the respondent No. 3 University making it clear that since the State Government had already issued NOC and AICTE had also given permission to open D. Pharmacy Course in the petitioners' College from the Academic Session 2003-04, therefore, further steps be taken for affiliation arid therefore, in these circumstances, to say that the petitioner's College was not affiliated with the respondent No. 3 University cannot be accepted. (ii) That apart from this, the petitioners admitted students in the Pharmacy Course for the Academic Session 2003-04 at their own level and they also admitted students sent by the respondent No. 4 Coordinator (Pre Pharmacy Test), Jai Narain Vyas University, Jodhpur and the said Pharmacy Course started from 1st July, 2003 and since the petitioners' College admitted excess students as against the sanctioned strength of 60 seats, they admitted 78 students in Pharmacy Course for the Academic Session 2003-04, therefore, litigation took place between the petitioner and the respondent No. 3 University, but the Division Bench of this Court through judgment dated 16.2.2004 in the case of Agarwal Pharmacy College (supra), allowed the excess students to study the Pharmacy Course and therefore, in these circumstances, the respondent No. 3 University cannot say that the petitioners' College was not affiliated with it. (iii) That at this stage, the case of the respondent No. 3 University that there was no affiliation of the petitioners' College with it cannot be accepted in view of the fact that the respondent No. 3 University itself recommended the case of the petitioners' College for D. Pharma for the Academic Session 2003-04 and granted no objection certificate to the petitioners' College through Annex.2 dated 5.3.2003 subject to the two conditions that approval of the AICTE and NOC of the State Government must be there. In this case, thereafter, the petitioners submitted NOC of the State Government dated 25.4.2003 (Annex.3) and approval of the AICTE Annex.6 dated 20.6.2003 and thus, the case of the respondent No. 3 University that the petitioners' College was not affiliated with it cannot be accepted, especially when the students are studying in the Pharmacy Course since 1st July, 2003. (iv) That no doubt notification has not been published in the official gazette and there may be some formalities, which, according to the respondent No. 3 University, have not been fulfilled, but should have been fulfilled, but because of that fact, the petitioner's College could not be deprived of affiliation with the respondent No. 3 University at this stage when the students are studying since 1st July, 2003 merely on some technical ground and for that, the decision of the Hon'ble Supreme Court in Al-Karim Education Trust and Anr. v. State of Bihar and Ors. ( AIR 1996 SC 1469 ) may be referred to where the Hon'ble Supreme Court observed that ordinarily affiliation is to be decided by State Government after consultation and if minor deficiencies remaining to be complied with, they were to be overlooked especially when the institution has begun to function and students admitted. The case of the present petitioners stand on a strong footing, as in this case there is no dispute on the point that the State Government granted permission and apart from this, through Annex.10 dated 13.8.2003, the State Government again asked the respondent No. 3 University to take further steps for affiliation as the State Government had already issued NOC and AICTE had also granted permission for opening D. Pharmacy Course in the petitioners' College from Academic Session 2003-04. Thus, the action of the respondent No. 3 University in saying that the petitioners' College was not affiliated with it and asking the petitioners to take back enrolment and examination forms of the students studying in their College, appears to be wholly unreasonable and arbitrary and thus, impugned letters cannot be sustained. 15. For the reasons stated above, the respondent No. 3 University is not justified in saying that the petitioners' College was not affiliated with it and also in asking the petitioners' College to take back enrolment and examination forms of the students studying in their college in the Pharmacy Course and thus, the impugned letter Annex.14, Annex.15 and Annex.16 issued by the respondent No. 3 University cannot be sustained and are liable to be quashed and set aside and this writ petition deserves to be allowed.Accordingly, this writ petition filed by the petitioners is allowed and the impugned letters Annex.14 dated 10.1.2004, Annex.15 dated 17.1.2004 and Annex. 16 dated 20.1.2004 issued by the respondent No. 3 University are quashed and set aside and the respondent No. 3 University is directed to treat the petitioners' College affiliated with it for the Academic Session 2003-04 and if some formalities in this respect are required to be completed, the same may be got completed and the respondent No. 3 University is further directed to accept the enrolment and examination forms sent by the petitioners' College through letters Annex.11 dated 30.9.2003 and Annex.12 dated 26.12.2003 in respect of the students studying in their College in Pharmacy Course for the Academic Session 2003-04 and take further steps for conducting examination etc. *******