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Madhya Pradesh High Court · body

2010 DIGILAW 711 (MP)

Lalit Tongia v. State Of M. P.

2010-07-16

ARUN MISHRA, S.C.SINHO

body2010
Judgment ARUN MISHRA, J. Writ petition has been filed by the petitioner praying for the relief to declare amended Regulations 3 and 5 of the M. P. Admission (Reservation to NRI) Regulation, 2009 as Ultra Vires being repugnant to the provision of Chapter VIII of the AICTE Regulations, 2010. Prayer has also been made to direct the private un-aided institutions to effect admission to NRI purely as per the definition and procedure prescribed under Chapter VII of the AICTE Regulations, 2010 for the academic session 2010-11. Prayer has also been made to direct the respondents authorities for conducting centralized counselling through a competent authority as notified under the Niji Vyavsayik Shikshan (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (hereinafter referred to the "Adhiniyam of 2007"). Prayer has also been made to quash the counselling held in derogation to the aforesaid provisions. (2) IN the petition it is averred that section 2(g) of the Adhiniyam of 2007 defines "management" and section 2(j) defines "non-resident INdian" having the same meaning as assigned in clause (e) of section 115C of the INcome Tax Act, 1961. IN exercise of powers under sections 11 and 12 State Government has initially framed the Admission Rules, 2008, Rule 2(i) defines "NRI" to have same meaning as assigned in clause (e) of section 115C of the INcome Tax Act. Rule 7(3) of the Admission Rules, 2008 prohibited no management of professional institution shall issue notification/advertisement and call for application for admission separately or individually from any student. IN exercise of regulation making power the State Government has also framed M. P. Admission (Reservation to NRI) Regulations, 2009 (hereinafter referred to "NRI Regulations 2009"). Regulation 3 of NRI Regulation 2009 provides that these regulations shall be applicable to students who are seeking admission against 5% seats reserved for non-resident INdian subject to fulfilling one of the prescribed conditions. Regulation 5 provides for procedure of admission to various seats belonging to NRI quota. The procedure under the aforesaid rules give free hand to the concerned institution for inviting applications at the institutional level and giving admissions to various candidates. The counselling programme, (P/5) was published on 16-6-2010. It is submitted by the petitioner that AICTE Regulations 2010 published in February, 2010 and framed by the AICTE under section 11 of the All India Council for Technical Education Act, 1993. The counselling programme, (P/5) was published on 16-6-2010. It is submitted by the petitioner that AICTE Regulations 2010 published in February, 2010 and framed by the AICTE under section 11 of the All India Council for Technical Education Act, 1993. Regulation 2.36 defines NRI, Regulation 49 falling under Chapter VIII of the Regulations clearly states that the admission to 5% NRI seats shall be done by providing admission to the sons and daughters of the NRI's. Regulation 52 of Regulations states that admissions to the NRI quota shall be effected by Competent authority by inviting applications and then after publishing a joint merit list of various applicants. Thus, it is apparent that there is repugnancy between the NRI Regulation 2009 framed by the State and AICTE Regulation 2010. Previous year this Court has passed interim order directing the State to frame the regulations, thereafter the regulations were framed for giving admission to NRI's. Then on the basis of unamended Regulations 2009 institutions have given admissions to many ineligible students to the NRI quota which had been cancelled by the Courts. Hence, the petition has been preferred. (3) RETURN has been filed by the State/respondent No. 1 contending that in P. A. Inamdar vs. State of Maharashtra, (2005) 6 SCC 537 the Apex Court has emphasized on the importance and necessity of framing well thought out legislation by the Central Government or in the absence of Central Legislation, by the State Legislature. The State of Madhya Pradesh with an object to provide for the regulation of admission and fixation of fee for private professional institutions and to provide for reservation of seats to persons belonging to scheduled castes, scheduled tribes and other backwards classes has enacted the Act of 2007. Education, including technical education is the subject-matter of concurrent list (List III) Entry 25 of Schedule VII of the Constitution of India. The regulation framed by the State cannot be said to be in conflict with the AICTE regulations. (4) RESPONDENTS No. 5 and 6 have also filed their return contending that for ensuring standard of practical education and for co-ordinated and integrated development it can lay down the guidelines for admission of students. In furtherance thereof council has framed AICTE Regulations in exercise of power under section 23(1) of the AICTE Act. (4) RESPONDENTS No. 5 and 6 have also filed their return contending that for ensuring standard of practical education and for co-ordinated and integrated development it can lay down the guidelines for admission of students. In furtherance thereof council has framed AICTE Regulations in exercise of power under section 23(1) of the AICTE Act. Hand book has already been published prescribing the procedure of approval and for carrying out the purpose of AICTE Act, 1987. Competent authority as per Regulation 2.15 means "a body responsible for admission to technical institutions in the State/Union Territory concerned". Regulation 49 provides making of application by technical institutions seeking approval to have 5% quota for admitting sons and daughters of NRI. Regulation 52 pertains to implementation of NRI quota. The enactment has to prevail as provided in Entry 66 of List-I of VII Schedule. The provision can also be deemed to have been enacted under Entry 25 of List III which is concurrent list. No law can be made by the State Legislature which may be inconsistent or violative of any Central Law made on the subject. The State Government could not impose any condition inconsistent with the Regulation or condition imposed by the AICTE. On behalf of the colleges; Shree Vaishnav Institute of Technology and Science, Medicap Institute of Technology and Management and Medicaps Institute of Science and Technology, intervention application has been filed. They have also been heard by us. (5) SHRI Siddharth Gupta, learned counsel appearing on behalf of the petitioner has submitted that AICTE has prescribed in the Hand Book in Clause 49 that only sons and daughters of NRIs can be admitted in technical education institution, thus, it was not open to the State Government to frame NRI Regulations 2009 as amended in 2010 repugnant to it. He has submitted that AICTE has right to prescribe the norms for admission, they are binding while admitting the NRI student who are sponsored by relatives. The directive issued by the AICTE in the Hand Book are binding which has been prepared under enabling Regulation No. 4.3 of the AICTE Regulations 2010. Relying upon Regulation 4.6 of the said Regulations, he has also submitted that the technical institution shall require prior approval of the council for availing quota of NRI students. Regulation 2.19 defines "Non-Resident India (NRI)". Relying upon Regulation 4.6 of the said Regulations, he has also submitted that the technical institution shall require prior approval of the council for availing quota of NRI students. Regulation 2.19 defines "Non-Resident India (NRI)". The State Government has violated the mandatory directives contained in the Hand Book issued by the AICTE which has statutory force. He has also submitted that as per the Entry 66 List I of the VII Schedule the Regulation/Hand Book has to prevail, the field is occupied hence the State Government has no power to legislate. Even if the said subject falls in concurrent list Entry 25 of List III, AICTE Regulations has to prevail, it was not open to the State Government to entrench upon the field occupied by the AICTE Regulations 2010. Counsel has also relied upon clause 52 of the Hand Book to contend that the centralized admission ought to have been given to the NRI students. He has relied upon the decisions of the Apex Court in P. A. Inamdar vs. State of Maharashtra, (2005) 6 SCC 537 , State of Tamil Nadu and am. vs. Adhiyaman Educational and Research Institute and others etc., (1995) 4 SCC 104 , Bharti Vidyapeeth (deemed University) and ors. vs. State of Maharashtra and am., 2004(11) SCC 755 , decision of Himachal Pradesh High Court in Abhinav Verma vs. State of Himachal Pradesh and ors., 2008(1) Shimla LC 90 and decision of the Gujarat High Court in Shah Forum Umeshbhai (Minor) vs. Justice R. J. Shah (Retd.) Admission Committee (Medical) and ors. in Special Civil Application Nos. 1675 to 1693 of 2007 decided on 24-4-2007. SHRI Pradeep Sharma appearing on behalf of AICTE has supported the stand of SHRI Siddharth Gupta. (6) SHRI Purushaindra Kaurav, learned Dy. AG appearing on behalf of the State/respondents No. 1 and 4, SHRI Paritosh Gupta on behalf of respondent No. 2, with SHRI Shekhar Sharma and SHRI Ashok Lalwani, learned counsel appearing on behalf of the intervenors have supported the State Regulations. They have submitted that the amended NRI Regulations 2009 framed by the State Government nowhere entrench upon AICTE Regulations. AICTE nowhere defines who is NRI, concept of the NRI has been borrowed by the State Government from the decision of P. A. Inamdar (supra) and decision of Ruchin Bharat Patel vs. Parents Assn. for the M/D Students and ors. They have submitted that the amended NRI Regulations 2009 framed by the State Government nowhere entrench upon AICTE Regulations. AICTE nowhere defines who is NRI, concept of the NRI has been borrowed by the State Government from the decision of P. A. Inamdar (supra) and decision of Ruchin Bharat Patel vs. Parents Assn. for the M/D Students and ors. of the Apex Court referred to by this Court in Anshul Tomar vs. State of M. P. and others, 2008 MPLJ 450 . They have also referred to the decision of the Indore Bench of this Court in Hanish Kukreja vs. State of M. P. and ors., 2010(2) MPLJ 422 = 2010(2) MPHP 522 (DB) where question of first degree relationship came up for consideration before the Division Bench of this Court. They have also submitted that under section 10 of the AICTE Act the function of the AICTE is to prescribe the standard of education there is not repugnancy in the amended State Regulation 3 and Clause 49 of the Hand Book of the AICTE. It is submitted by SHRI Kaurav that so far as the centralized counselling is concerned as counselling at college level has already been held by the various institutions it would not be appropriate to disturb the admissions. The State would consider whether it is appropriate to direct the centralized counselling from the next year for NRI students as provided in Hand Book of the AICTE. Main question for consideration is whether there is any repugnancy between the amended NRI Regulations 2009 framed by State Government with the Clause 49 of the Hand Book framed by the AICTE. (7) NRI has been defined in Adhiniyam, 2007 in section 2(j), thus : "(j) "non-resident Indian" shall have the same meaning as assigned to it in clause (e) of section 115C of the Income Tax Act, 1961 (4 of 1961)". The definition of NRI in Admission Rule 2(i) in Rules of 2008 framed by the State Government in exercise of power conferred under section 12 of the Adhiniyam, 2007, is the same as defined in section 115C(e) of the Income Tax Act the definition of NRI as contained in section 115C(e) of the Income Tax Act is quoted below : "115C (e) "non-resident Indian" means an individual, being a citizen of India or a person of Indian origin who is not a "resident". Explanation. ? Explanation. ? A person shall be deemed to be of Indian origin if he, or either of his parents or any of his grandparents, was born in undivided India; The Regulation 2.19 of AICTE Regulation of 2010 defines NRI thus : "2.19. "Non-Resident Indian (NRI)" means an Indian Citizen, who is ordinarily residing outside India and holds an Indian Passport; Regulation 4.6 of the said Regulation provides the formats of the application and the documents to be attached to the application to be filed by institution for availing NRI quota. Hand Book Clause 49 contained in Chapter VII of the Hand Book framed by the AICTE reads as under : "Chapter VII Approval Process for admission quota for Sons and Daughters of Non-Resident Indian(s) 49. The technical institutions desirous to have 5% quota for admitting sons and daughters of NRIs at a fee chargeable to NRIs shall seek the approval of the council by making applications in the prescribed format along with the following enclosures. The applicable processing fee, as stated below shall be paid by the applicant. The 5 percent seats referred in above clause shall not be supernumerary in nature." It is apparent from aforesaid provisions that in Chapter VII of Hand Book of AICTE approval process for availing quota for sons and daughters of nonresident Indian has been provided. The definition of NRI is given only in Regulation 2.19 of the AICTE Regulation 2010 to mean an Indian citizen, who is ordinarily residing outside India and holds an Indian Passport. Provision of Clause 49 Chapter VII of the Hand Book has been framed for the purpose of dealing the approval process for availing 5% quota for sons and daughters of NRI for the technical institutions desirous of admitting wards of the NRIs at a fee chargeable shall seek the approval of the council i.e. AICTE. An application has to be filed in the prescribed format along with the enclosures prescribed therein, 5% seats referred shall not be supernumerary. It cannot be taken that the provision of Clause 49 Chapter VII of the Hand Book to define NRI. NRI has been defined in Clause 2.19 which has wide connotation. An application has to be filed in the prescribed format along with the enclosures prescribed therein, 5% seats referred shall not be supernumerary. It cannot be taken that the provision of Clause 49 Chapter VII of the Hand Book to define NRI. NRI has been defined in Clause 2.19 which has wide connotation. It cannot be said that the AICTE has prescribed that NRI quota is confined only to the sons and daughters of the NRI though there is reference to the son and daughter of NRI in Clause 49, but, clause 49 as discussed above is providing for approval process of the technical institutions desirous to have 5% quota by making application in the prescribed format and fee it is not a provision defining who is to be treated as NRI. (8) AMENDED Regulation 3 of the NRI Regulation 2009 framed by the State Government is quoted below : "3. Applicability. - These regulations shall be applicable to students who are seeking admissions against 5% seats reserved for non-resident Indian subject to fulfilling one of the following conditions :? (a) At least one of the parents of such students should be nonresident Indian and shall ordinarily be residing abroad as nonresident Indian; (b) The person who sponsors the student for admission should be a first degree relation of the student and should be ordinarily residing abroad as a non-resident Indian; (c) If the student has no parents or near relatives or taken as a ward by some other nearest relative such students also may be considered for admission provided the guardian has bona fide treated the students as a ward and such guardian shah file and affidavit indicating the interest shown in the education affairs of the student and also his relationship with the student and such person also should be non-resident Indian and ordinarily residing abroad." It is apparent from said Regulation 3 that these regulations shall be applicable to the students who are seeking admission as against NRI seats on fulfilling one of the 3 conditions prescribed in clause (a), (b) and (c). Regulation 3(a) provides that at least one of the parents of such students should be non-resident Indian and residing abroad. Regulation 3(b) provides first degree relation who sponsor the student should be ordinarily residing as NRI. Regulation 3(a) provides that at least one of the parents of such students should be non-resident Indian and residing abroad. Regulation 3(b) provides first degree relation who sponsor the student should be ordinarily residing as NRI. Regulation 3(c) provides if the students has no parents or near relatives or taken as ward by some other nearest relative such students also may be considered for admission provided the guardian has bona fide treated student as a ward. It appears that Clause 3(c) has been loosely drafted, it cannot be interpreted to mean that even in the presence of the parents as provided in Clause 3(a) and near relatives as provided in Clause 3(b) if student has been taken as a ward by some other nearest relatives such student may also be considered for admissions as against NRI quota. The use of the phrase if the student has "no parents or near relative" in Regulation 3(c) has to be given full effect. The provision of Clause 3(c) of student taken as ward by other nearest relative cannot be taken into consideration ignoring that student has no parents or near relative i.e. first degree relation as provided in Regulation 3(a) and 3(b). The use of the phrase the student has "no parents or near relative" would be redundant, in case it is held that even if person of category 3(a) and 3(b) are available recourse can be had to Clause 3(c). The words "If the students has no parents or near relations" cannot be ignored. In our opinion, the aforesaid phrase has to be given effect to as Legislature cannot be supposed to have unnecessarily used these words in Regulation 3(c). The words "or near relative" following no parents has reference obviously to Clause 3(b). Thus, meaning of Regulation 3(c) is apparent that in case parents are not alive as well as the persons as provided in Regulation 3(b) are not available only in that case students taken as ward by some other nearest relative can stake the claim for admission under the aforesaid regulation not otherwise. In P. A. Inamdar (supra) in para 131 the Apex Court considered concept of NRI and observed such seats should be utilized bona fide by NRI only and for their children and wards, it has laid down thus : "131. In P. A. Inamdar (supra) in para 131 the Apex Court considered concept of NRI and observed such seats should be utilized bona fide by NRI only and for their children and wards, it has laid down thus : "131. Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians ("NRI" for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to a certain number of students under such quota by charging a higher amount of fee. In fact, the term "NRI" in relation to admission is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but, who can afford to bring more money, get admission. During the course of hearing it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen their level of education and also to enlarge their educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with the Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilised bona fide by NRIs only and for their children or wards. Secondly, within this quota, merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilised for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of their fee. Secondly, within this quota, merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilised for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to the direction in Islamic Academy to regulate." (9) IN Abhinav Verma vs. State of Himachal Pradesh and ors. (supra) the High Court of Himachal Pradesh has relied upon P. A. INamdar's case and emphasized that the NRI quota should not be misutilized, it should be utilized bona fidely by NRI only. It should not be utilized for giving admission to normal ordinary INdian resident or by payment of charge/fee which are prescribed to NRI students. Normal ordinary resident INdian cannot be equated for NRI student which constitute different category. (10) NRI Regulation 2009 defines NRI to mean in case student's parents or first degree relation, sponsored a candidate such first degree relative is ordinarily residing abroad as NRI and in absence of parents or nearest relative in the case of student who has been taken as ward by some other nearest relative, we find that regulation cannot be said to be defeating object of bona fide NRI nor it can be said to be violative of definition of NRI in 2.19 of AICTE Regulation as parent first degree relative and other near relative are NRI and their children or wards can be given admission. Another decision has been relied by Shri Siddharth Gupta of Gujarat High Court in Shah Forum Umeshbhai (Minor) vs. Justice R. J. Shah (Retd.) Admission Committed (Medical) and ors. (supra), their Lordship of Gujarat High Court considered the criteria prescribed by the Justice R. J. Shah committee constituted for determining NRI under the orders of the Apex Court. The concept of student being taken as ward was recognized. The Gujarat High Court held that in the absence of other both categories of NRI the concept of student taken as ward by near relative wards would come into play. The concept of student being taken as ward was recognized. The Gujarat High Court held that in the absence of other both categories of NRI the concept of student taken as ward by near relative wards would come into play. We have also interpreted the provisions of Regulations 3 to mean a student must satisfy either condition of Regulation 3(a) or (b), if there is a parent, he can still be sponsored by first degree relation and in case a person of category of clause (a) and (b) of Regulation 3 is not available then, such student can avail category (c) of Regulation 3 to stake his claim. We have not found any repugnancy in AICTE Regulations and NRI Regulations 2009 framed by State Government. NRI has been defined in the amended NRI Regulation 2009 and we find regulations to be within parameter of legislature power in Entry 25 List III of VII Schedule of Constitution of India, it cannot be said to be entrenching upon the occupied field by the regulations framed by the AICTE under Entry 66 List-I. (11) COMING to last last submission raised by Shri Siddharth Gupta appearing on behalf of the petitioner based on Hand Book provision Clause 52 that centralized counselling should have been held. Provision of Clause 52 of the Hand Book is quoted below : "52. Implementation 52.1 Under the Scheme, the Competent Authority for admissions shall be the same as for regular admissions and up to 5 percent of sanctioned intake per course shall be available for such admissions. 52.2 In the event of non-availability of students in NRI category, the seats will be given to general candidates as per general merit. However, no NRI fee shall be applicable to general candidates thus admitted against vacant NRI seats. 52.3 Competent Authority for admissions shall fetch list of Technical Institutions who have sought approval from the council, from AICTE web-portal. 52.4 The Competent Authority for admission shall display availability of NRI seats, branch wise, in various Institutions, for information of candidates during all stages of admissions so that the students can freely exercise their informed choice. The Institutions may publish in their brochure and web site the number of NRI seats available in course/division. 52.5 Competent Authority for admissions shall prepare merit list of applicants by inviting applications from eligible NRI students and effect admissions strictly on merit basis. The Institutions may publish in their brochure and web site the number of NRI seats available in course/division. 52.5 Competent Authority for admissions shall prepare merit list of applicants by inviting applications from eligible NRI students and effect admissions strictly on merit basis. 52.6 A letter in this respect shall be issued by the Competent Authority for admissions to each beneficiary. Students admitted under this scheme shall not be allowed to change Institution/course under any circumstances. 52.7 The Institutions shall also display information regarding admitted candidates in their web sites for information to the students and other stakeholders." As this year admissions have already been given and it is assured by Shri Purushaindra Kaurav, Dy. AG appearing on behalf of the State that the State Government is going to seriously consider holding of centralized counselling for NRI students from the next academic session, suffice is to say that let the State consider holding of centralized counselling within a period of 3 months as assured by Shri Purushaindra Kaurav, Dy. AG. (12) WE also direct the State Counselling Committee to ensure for current session that the admissions have been given to NRI students by the private institutions strictly as per the interpretation made by us of Regulation 3(a), (b) and (c) and to ensure that no such students of category 3(c) is admitted by the Colleges who is having a person of the category as provided in Regulation 3(a) and 3(b). As only such students can be admitted as provided in clause (c) of the Regulation 3 who is not having parents alive or no first degree relation is available, under clause 3(a) and (b). Let scrutiny be made by the State Counselling Committee. It is not in dispute at bar that the State Counselling Committee has to scrutinize the admissions made by the colleges. It is stated by Shri Paritosh Gupta appearing for the State Counselling Committee that it is going to scrutinize the admissions and if any admission is given in violation of the provision of Regulation 3 same shall not be permitted to continue. Let it scrutinize admissions as expeditiously as possible. Accordingly, the writ petition is disposed of with aforesaid directions. No costs. Order accordingly.