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2008 DIGILAW 267 (BOM)

Zade Manisha Gunderaoji v. State of Maharashtra

2008-02-18

N.V.DABHOLKAR, P.V.KAKADE

body2008
JUDGMENT: P.V. KAKADE, J.:- Heard. 2. Rule. Rule is made returnable by consent. 3. This petition is preferred by fifty students of Respondent No.6 Late Santaramji Rabbewar D.Ed. College, Basmat, Dist. Hingoli, seeking direction to the respondents - competent authorities to issue and accept the examination forms and fees of the petitioners for first year D.Ed. course and permit them to appear for examination, which was scheduled to be held from 23rd October, 2007, in the light of the facts and circumstances, urged before us. At this juncture, we may note that though the petition was filed just prior to scheduled examination, and was circulated before us on 19.10.2007, we thought it fit not to issue any interim relief without hearing the respondents and when it was apparent that last minute preparation to hold examinations under the orders of the Court would not be proper nor possible. We may further note that we are of the considered view that the petition need not be disposed of with direction that it is rendered infructuous as the examinations for which the petitioners intended to appear, are over. This is because, we are of the view that the issues involved require deeper scrutiny in the merits of the matter. We may also note that two other petitions of students from different institutions involving similar issues, are also being disposed of separately wherein both those institutions were approved minority institutions, whereas the question involved in this petition is somewhat different, in the sense whether respondent no.6 institution is a minority institution at all and if so, was it enjoying such status when 100% students, who are petitioners, were admitted by the institution by advertisement on 13th May, 2007. 4. The petitioners have come with a case that they were students of first year D.Ed. Course in academic year, 2006-07 of Respondent No.6 institution namely, Late Santaramji Rabbewar D.Ed. College, Basmat, Dist. Hingoli affiliated to Tirupati Pratisthan Andhori. Respondent No.6 is the Principal of the said D.Ed. College. So far as other respondents are concerned, they are the controlling authorities in the matter of conducting examination, declaration of results and other matters in relation thereto. The petitioners have sought admission in the college of Respondent No.6 as per the advertisement published in daily newspaper Punyanagari dated 13th May, 2007. College. So far as other respondents are concerned, they are the controlling authorities in the matter of conducting examination, declaration of results and other matters in relation thereto. The petitioners have sought admission in the college of Respondent No.6 as per the advertisement published in daily newspaper Punyanagari dated 13th May, 2007. Petitioners have completed their syllabus / study and have prepared and were ready to appear for ensuing first year D.Ed. course examination which was to be held from 23rd October, 2007. However, at the fag end of the term, the petitioners came to know from respondent no.6 that their examination forms and fees were not accepted by respondent no.5 i.e. District Institute of Education and Training, Parbhani (for short, DIET) due to which, they would not be allowed to appear for ensuing examination. Hence, further enquiries were made by the students about the reason and they were informed that the authorities had declined to accept forms and fees as a result of which, they would not be allowed to appear for the examination of first D.Ed. Course scheduled to be held from 23rd October, 2007. According to the petitioners, Respondent No.5 DIET, Parbhani refused to process the examination activities for one reason or the other, as a result of which, the petitioners suffered loss of their term as well as time and energy besides fees paid by them. The petitioners have further submitted that they have sought and obtained admissions to respondent no.6 college as per the advertisement, which is legal, proper and in consonance with the relevant rules and law. Hence, the petition came to be filed to seek relief with directions to the concerned respondents to accept the forms and fees of the petitioners and allow them to appear for the examination. As noted earlier, we were not inclined to grant interim relief but, at the same time, we issued notices to the respondents and preferred to hear them exhaustively on the issues involved. 5. It is to be noted that respondent no.6 institution, in fact, supports the petitioners’ case and, therefore, it would be worthwhile to consider the arguments advanced on behalf of respondent no.6 along with those on behalf of the petitioners, who are also supported by affidavit-in-reply filed by respondent no.6. 5. It is to be noted that respondent no.6 institution, in fact, supports the petitioners’ case and, therefore, it would be worthwhile to consider the arguments advanced on behalf of respondent no.6 along with those on behalf of the petitioners, who are also supported by affidavit-in-reply filed by respondent no.6. It is the case of the petitioners that the institution is a minority institution and proposal for their declaration of such status was filed by them on 17.5.2007 for sanction and treating it as a minority institution. According to the petitioners and Respondent No.6, after filing the proposal for opening D.Ed. College in the academic year, 2006-07, the N.C.T.E. issued code number and thereafter, they also raised objections which were ultimately removed and such recognition was sought from the concerned authority, namely, N.C.T.E., which was finally obtained on 16/17th April, 2007 vide Exh.R-3 on record, which are the minutes of the 96th meeting (2nd sitting) of Western Regional Committee held on April, 16-17, 2007, which shows at page no.5 thereof that Respondent No.6 College was conditionally recognised by the N.C.T.E. According to the petitioners as well as Respondent No.6 College, after receiving the recognition from N.C.T.E., Respondent No.6 demanded students for the academic year, 2006-07 by letter dated 10.5.2007 from the said authorities. They also informed the timetable of 20% management quota to be filled up. However, Respondent No.5 did not respond to the request of Respondent no.6 and did not provide the State quota of the students for the said college. Respondent no.6 has come with a case that they were informed that their institution was a linguistic minority community and therefore, DIET would not provide students and allegedly asked them to fill up all the posts as per the rules. According to respondent no.6, it was asked by respondent no.5 asking them to fill up 100% quota of the students. Surprisingly enough, there is no such document on record nor there is any communication from respondent no.5 to respondent no.6, purportedly informing them that they were minority institution and therefore, were entitled to fill up 100% quota of the students and refusing to provide 80% State quota. Be as it may, as that aspect would be considered subsequently. Surprisingly enough, there is no such document on record nor there is any communication from respondent no.5 to respondent no.6, purportedly informing them that they were minority institution and therefore, were entitled to fill up 100% quota of the students and refusing to provide 80% State quota. Be as it may, as that aspect would be considered subsequently. It is further submission on behalf of the petitioners as well as respondent no.6 that consequent thereto, respondent no.6 filled in the entire quota of students in the college as per the merits and took appropriate steps for conducting examination and, therefore, respondent no.6 also informed the State Government that institution had filled in students as per merits and, therefore, to grant permission/approval to the list of students which were admitted in the academic year, 2006-07. The State Government was also informed about the fees structure assessed by Respondent No. 6 and approval was sought for the same. Hence, it is submitted on behalf of the petitioners as well as respondent no.6 that respondents no.1 to 5 did not consider the proposals sent by respondent no.6, dated 17.5.2007 as well as 17.11.2007, which are still pending and, therefore, respondent no.6 filed appeal before the National Commission for Minority Educational Institute, New Delhi as well as Commission for Linguistic Minorities in India, 40 Amarnath Jha Marg, Ilahabad. On such and other grounds, the submission is made on behalf of the petitioners that respondents no.1 to 5 had no reason to refuse to accept the examination forms as well as fees of the petitioners - students of respondent no.6. 5. Further it was submitted on behalf of respondent State and its authorities that respondent no.6 institution is not a minority institution and, therefore, the act of filling in 100% quota of the students by respondent no.6 by itself was illegal, which was sufficient to refuse to accept the examination forms and deny the students to appear for the examination, as it was against relevant rules and provisions made in that regard. . In that connection, respondent no.6 as well as the petitioners have relied upon the Government Resolution dated 11th June, 2007 issued by the State Government which pertains to procedure to recognise the institutions as minority institutions. . In that connection, respondent no.6 as well as the petitioners have relied upon the Government Resolution dated 11th June, 2007 issued by the State Government which pertains to procedure to recognise the institutions as minority institutions. If we peruse the contents of the said Government Resolution, Clause 3 stipulates that if the institution has sent proposal to the concerned authorities for recognition as minority institution and if the competent authority has not, within 90 days from the date of application; issued no objection certificate to the institution or such application is rejected but, without intimation of rejection to the institution, then it would be deemed that the competent authority has issued no objection for recognition of the institution as a minority institution. Therefore, relying on this submission, it is submitted on behalf of respondent no.6 as well as the petitioners that the respondent no.6 is a "deemed minority institution" within the meaning of the provisions of the said Government Resolution dated 11th June, 2007. 6. It was urged on behalf of the State Government as well as respondent no.3 that respondent no.6 institution was not recognised by N.C.T.E. and, therefore, the entire exercise made by them regarding admissions was a futile gesture. However, this argument is devoid of merits because the record shows that respondent no.6 was conditionally recognised institution by N.C.T.E. (Paper Book Page No.48) in the meeting of Western Regional Committee held on 16-17th April, 2007. 7. In our considered view, the moot question around which the entire controversy revolves is whether respondent no.6 institution was either recognised minority institution or even was enjoying status of "deemed minority institution" on the date when the advertisement was issued i.e. 13th May, 2007. Evidently, the very provision of deemed recognition has come in effect by virtue of Government Resolution dated 11th June, 2007. If it is so, it cannot be conceived that on the date of advertisement i.e. 13th May, 2007, the institution in question was either regularly recognised minority institution or was enjoying the status of "deemed minority institution" and in spite of this position, the institution proceeded to fill up 100% quota of the students on their own without sanction from the concerned authorities from the State. It is also to be noted that the contents of para 5 of the affidavit-in-reply appear to be inducted calculatedly to mislead the Court when respondent no.6 makes a statement therein that respondent no.5 "informed that your institution is linguistic minority community and therefore, we ‘do’ (sic) not provide the students you fill up all posts as per the rules. Copy of letter-dated 10.5.2007 is annexed herewith and marked as Exhibit "R-4"." Now, Exh.R-4 annexed to the affidavit is letter of respondent no.6 institution to head of the DIET i.e. Respondent no.5 to the effect that they have sought 80% students from State quota from respondent no.5 DIET. However, there is no documentary support from the record that respondent no.5 DIET has, in any manner, responded to this letter as narrated in paragraph 5 of the affidavit-in-reply of respondent no.6. Therefore, the position is clear that paragraph 5 is inducted in order to mislead the Court that they had admitted 100% quota as early as in the month of May, 2007 as if it was directed/advised by respondent no.5 DIET, which in fact, does not appear to be the case. Even if, we assume that a deemed minority institution status is achieved by respondent no.6 institution subsequently, it could not be achieved within the period of 90 days from their proposal dated 17.5.2007 to the concerned authorities i.e. upto 16.8.2007, and in any case, therefore, on the date of advertisement and subsequently while filling up of 100% quota of the students, respondent no.6 was neither recognised "minority institution" nor was "deemed minority institution", as agitated on their behalf. Some dates and events stated herein below would fortify our observations: 1) Conditional recognition : 16-17.4.2007 by NCTE: 16-17-2007 (P.B. Page 48). 2) 2)Letter asking for students from DIET : 10.5.2007 (P.B. Page 53). 3) Advertisement for admission : 13.5.2007 (P.B. Page 18) 4) Application for recognition as : 17.5.2007(Exh.R-1, Page 39) “minority” & institution. 17.11.2007 (P.B. Page 61 to 63). 5) G.R. regarding procedure for recognition. : 11.6.2007 : (P.B. Page 271-276). 6) Unconditional recognition by NCTE. : 6.7.2007 (P.B. page 277). 3) Advertisement for admission : 13.5.2007 (P.B. Page 18) 4) Application for recognition as : 17.5.2007(Exh.R-1, Page 39) “minority” & institution. 17.11.2007 (P.B. Page 61 to 63). 5) G.R. regarding procedure for recognition. : 11.6.2007 : (P.B. Page 271-276). 6) Unconditional recognition by NCTE. : 6.7.2007 (P.B. page 277). It is evident that letter asking for students was sent on 10.5.2007 and advertisement for admission was issued on 13.5.2007 during which time, no reply could be expected from Government authorities, nor there could have been any communication to R.No.6 that since it is linguistic minority institution it may fill 100% students. Secondly, if Respondent No.6 was already having status of minority institution, it would not have asked for 80% quota of students from DIET / Respondent No.5. In fact application for recognition for "minority" status is despatched to Respondent No.4 on 17.5.2007. Thus, on 13.5.2007 Respondent No.6 was aware of its status not being that of "minority" institution and yet it had gone ahead for advertisement and 100% admissions. Respondent No.6 has sent a proposal for recognition on 17.11.2007 by payment of fees of Rs.5000/-. In all probability, as required by Government Resolution dated 11.6.2007, which was not in the field on 17.5.2007 when first proposal was sent and therefore, deemed recognition as under said Government Resolution wold not be applicable to proposal dated 17.5.2007. Thus, if at all, by deeming provision in said Govt. Resolution, respondent no.6 gets recognition as "minority" institution only on condition of 90 days from 17.11.2007 i.e. 14.2.2008. On the contrary, there is room to infer that proposal dated 17.11.2007 was probably forwarded to give colour of legality to illegal admissions between 13.5.07 to 18.5.07. Such an institution is not entitled to any equitable relief from this Court. 8. Reliance was placed on the judgment of this Court in Writ Petition Nos.4437, 4531 and 4629 of 2006. After considering the judgments of Honourable the Supreme Court in the matters of Islamic Academy of Education (2003 AIRSCW 4240), P.A. Inamdar (2005 AIRSCW 3923) and TMA Pai Foundation (2002 AIRSCW 4957), this Court has observed that private, unaided, minority institutions are not liable to share seats with the State Government. Unfortunately, in spite of placing reliance on the observations, our attention is not drawn to any material to show that Respondent No.6is "unaided" institution. Unfortunately, in spite of placing reliance on the observations, our attention is not drawn to any material to show that Respondent No.6is "unaided" institution. Mere being "minority" institute may not justify the action of Respondent No.6 admitting 100% students on its own. 9. Once, this position is reached, it is quite obvious that the act of filling up of 100% quota of students by advertisement dated 13th May, 2007 is in total contravention of the relevant rules and law and, therefore, we have no doubt whatsoever that the concerned respondents authorities were totally justified in refusing to accept the examination forms as well as examination fees of the students of respondent no.6 institution. 10. We are aware of the situation in which the petitioners are put in. However, the manner in which respondent no.6 has tried to manipulate the situation and the issue, respondent no.6 alone is to be blamed for the plight of the students. We are satisfied that no writ can be issued in favour of the petitioners as prayed for. The only relief we can grant to them is refund of the fees and other amounts recovered from the petitioners by respondent no.6, which shall be refunded to the concerned students -petitioners within a period of four weeks from the date of this judgment. 11. In the result, rule is discharged. The petition fails and stands dismissed. In view of the facts and circumstances, costs of all the petitioners shall be borne by Respondent No.6. It shall pay an amount of Rs.1000/- to each of the petitioner in addition to refund of fees as ordered above. At this stage, the learned Counsel for Respondent No.6 seeks stay of the order. However, we are not inclined to stay the entire judgment, except for the direction regarding the payments to the students. Hence, the order regarding refund of fees and payment of costs to the petitioners - students 20 stands stayed for a period of six weeks. Petition dismissed.