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2013 DIGILAW 356 (JK)

Divya College Of Education v. State Of J&K

2013-06-04

DHIRAJ SINGH THAKUR, M.M.Kumar

body2013
D.S. Thakur, J. 1. The appellant in the present appeal challenges the judgment of the Writ Court dated 06.12.2012 mainly on the ground that notwithstanding the University Statues providing for a centralized admission process for admission to B.Ed Colleges, it is entitled complete freedom to make admissions being an unaided private college, based upon the judgment of the Apex Court in T.M.A. Pai Foundation and Others v. State of Karnataka and Others, (2002) 8 SCC 481 . 2. However, with a view to understand the issue in its correct perspective, it is necessary to state the facts in the light of which, the present controversy has arisen:- 2.1. Appellant is an educational institution running a B.Ed. College. The said institution was established in the year 1998 after obtaining a No Objection Certificate from the State Government and affiliation with the Jammu University. The intake capacity of the College has been fixed at 334 students. 2.2. The University framed the Statute with regard to making the admissions to various B. Ed. Colleges. The relevant Statute reads as under:- "4.2. No Non Government College of Education, other than the minority institute recognized by the State Govt. As such, shall make admission of the candidates to the B.Ed. Course on its own except management seats. Selection of candidates for all seats in B.Ed. course in each Non-Government affiliated college of education shall be made by the University." Procedure and mode of selection. "10.1. Admission of all eligible candidates to the B.Ed. Course shall be made by the Centralized Admission Committee constituted by the Vice-Chancellor." 2.3. The genesis of the aforementioned Statute was based upon various guidelines and directions passed by this court in the case of Anita Kumari v. Dogra College of Education, Jammu. 2.4. The procedure adopted by the University is that the applications are invited from eligible candidates seeking admission to various B.Ed., colleges. The University then prepares a merit list of candidates and the students are called for counselling where they are free to choose any college based upon their merit and availability. 2.5. For the session 2011-12, the University of Jammu issued a notification dated 14.06.2011, 26.07.2011 and 19.08.2011, pursuant to which 18368 candidates applied for admission to the B.Ed. regular course. Out of the aforementioned applicants, only 13740 were admitted in various private affiliated colleges through a fair and transparent Centralized admission process leaving 7284 seats unfilled. 2.5. For the session 2011-12, the University of Jammu issued a notification dated 14.06.2011, 26.07.2011 and 19.08.2011, pursuant to which 18368 candidates applied for admission to the B.Ed. regular course. Out of the aforementioned applicants, only 13740 were admitted in various private affiliated colleges through a fair and transparent Centralized admission process leaving 7284 seats unfilled. In this entire process, only 15 candidates opted for admission in the appellant-college. 2.6. Since a large number of seats remained unfilled in various colleges, a group of colleges under the banner "Forum of Recognized Colleges' (FORCE), issued a notification which was published in Daily Excelsior dated 19.12.2011, whereby the aforementioned Forum of Colleges notified that on spot counselling for filling up left over seats in various private B.Ed. Colleges would be conducted w.e.f. 22.12. 2011 to 30.12. 2011 2.7. This forced the University to issue a public notice 20.12.2011, informing the general public that the notice aforementioned, issued by the Forum of Colleges (FORCE), was unauthorized and that only the University was authorised to conduct on spot counselling for filling up the left over seats in various private colleges as per the Statutes and the directives given by the High Court in Anita Kumari's case (supra). Notwithstanding this fact, the private colleges went ahead with the spot counselling in terms of their notice issued by them in the Daily Excelsior dated 19.12.2011 and admitted 516 candidates. 2.8. With a view to resolve this conflict, on the request of the Vice-Chancellor of the University, the Chancellor of the University permitted a second round of counselling to fill up the left over seats in the private colleges in a separate session 2011-12. Pursuant to this, in a meeting between the University authorities and the College management, it was decided that the admission made under the Banner "FORCE", would be rejected and it was mandatory for the students admitted unauthorizedly by the colleges, to present themselves before a duly constituted Committee and the students would have the option to choose yet again, the Colleges of their choice. 2.9. Accordingly, a list of 516 candidates was submitted on behalf of 19 colleges by the forum of B.Ed. colleges to the University along with the requisite fee. Out of these 516 students, only 414 presented themselves before the Centralized Admission Committee. Even in this process of subsequent counselling, only 3 candidates opted for the College of appellant. 2.9. Accordingly, a list of 516 candidates was submitted on behalf of 19 colleges by the forum of B.Ed. colleges to the University along with the requisite fee. Out of these 516 students, only 414 presented themselves before the Centralized Admission Committee. Even in this process of subsequent counselling, only 3 candidates opted for the College of appellant. It is not out of place to mention here that the appellant was very much a part and parcel of Forum of Recognized Colleges under the banner "FORCE". 2.10. The appellant, however, instead of forwarding the list of candidates, unauthorizedly admitted by it to the Centralized Admission Committee of the University along with the list forwarded by the similarly situated Colleges, who were part of `FORCE', continued to retain the admissions of 292 candidates on its own. 2.11. With a view to somehow protect this action of admission of 292 candidates, the appellant filed OWP No. 805/2012, in the first round of litigation which came to be disposed of by the Writ Court vide judgment and order dated 04.06.2012, with the following directions:- "This petition is disposed of with a direction to the respondents to accord consideration to the petitioner's case having regard to the treatment given to the similarly circumstances institutions and take a decision in the matter within four weeks from a date copy of the order is served upon them," 2.12. Pursuant to the above judgment and order, the University considered the case of the appellant and rejected the same by virtue of order dated 29.06.2012. The said order came to be challenged in OWP no. 1156/2012, which has been dismissed by a learned Single Judge of this Court vide judgment and order impugned dated 06.12.2012, hence the present appeal. 3. We have heard learned counsel for the parties and have minutely perused the paper book record with their able assistance. 4. Counsel for the appellant urged that being a private unaided Educational institution, the University had no authority to regulate or conduct the entrance examination in that regard. He further urged that the only role which the State or the University could assume was to ensure that the admission process was merit-based, transparent and non-exploitative. 5. The counsel stated that the role of the University was limited to the extent of framing criteria to ensure that merit was not ignored while making admission of students. He further urged that the only role which the State or the University could assume was to ensure that the admission process was merit-based, transparent and non-exploitative. 5. The counsel stated that the role of the University was limited to the extent of framing criteria to ensure that merit was not ignored while making admission of students. He further urged that the University had regularized the admission of similarly circumstanced candidates while the case of the appellant was rejected. 6. Learned counsel for the appellant further submitted that there was no difference in the admissions made by the appellant College from the admissions made by the other 19 Colleges who are the constituent members of the `FORCE'. It was stated that the University Statute regarding the Centralized admission process to un-aided B.Ed., Colleges runs contrary to the mandate of the judgment rendered by the Apex Court in TMA Pai's case (supra). 7. On the other hand, the counsel for the University submitted that the appellant-College perpetually had been violating the University Statute even in the past. He submitted that in the previous year also, the appellant had made unauthorized admission for which, subsequently, he filed an affidavit that such an illegality/irregularity would not repeated in future. An undertaking to that extent was submitted before the University by the appellant. The University, based upon the said undertaking, keeping in view the interest of the students, as a one time exception, had regularized the illegal admissions of 254 candidates made by the appellant-College for the Session 2010-11. The counsel, thus, urged that in total disregard of the University Statutes prescribing centralized admission as also the undertaking submitted before the University by the appellant, this year again, the appellant-College had made unauthorized admission in regard to 292 students for the session 2011-12. 8. With regard to the aspect of discrimination, as asserted by the appellant's counsel, the counsel for the University submitted that the appellant had failed to forward to the University, the list of 292 students admitted on its own. Had such a list been forwarded along with the requisite fee, as was done in regard to 516 candidates, which list was submitted by the FORCE to the University, there was no reason as to why the list of 292 candidates would not be considered by the University for similarly subjecting them to the process of counselling as per the statutes. 9. 9. Counsel for the University tried to bring about a distinction in the case of appellant by stating that, whereas, the list of 516 candidates, who had unauthorizedly been admitted by various private colleges had been forwarded to the University, it was agreed between those Colleges and the University that the admission in regard to those candidates, would be deemed cancelled and the admissions would be made of such candidates only after adopting yet again a fair and transparent method of centralized admission and counselling through the University. It was urged that it was not a case of regularization by the University of the admissions made by those Colleges at all but pursuant to the Chancellor's permission, the counselling schedule, in effect, was extended and the admissions made by various Colleges on their own had, infact, been deemed to be cancelled. 10. The learned counsel appearing for the State referred to Rule 9(3) of the J&K Private Colleges (Regulation and Control) Rules, 2005, which is reproduced below:- "9(3): The College shall not admit any student without the express permission of the affiliating University." 11. The learned counsel urged that the appellant, in any case, did not have any legal authority to admit the students contrary to the rule aforementioned and, thus, could not claim any enforceable right in the extraordinary writ jurisdiction of this court. 12. The Apex Court in a comprehensive judgment rendered in T.M.A. Pai's case (supra), inter alia dealt with the rights of private un-aided minority educational institutions. The Apex Court in the said case clearly recognized the role of private education as one of the fastest growing segments on account of unprecedented demand for higher education and the inability or unwillingness of the Government to provide the necessary support. The Apex Court recognised generally the requirement of autonomy in education for achieving academic and intellectual excellence in the absence of unnecessary governmental control. 13. The Apex Court recognised generally the requirement of autonomy in education for achieving academic and intellectual excellence in the absence of unnecessary governmental control. 13. At the same time, however, in paragraph 53 of the judgment in the aforementioned case, the Apex Court held as under:- "With regard to the core components of the rights under Article 19 and 26(a), it must be held that while the State has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance with conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government. Furthermore, in setting up a reasonable fee structure, the element of profiteering is not as yet accepted in Indian conditions.............." 14. In paragraph 54 of the judgment, the Apex Court held as under:- "The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, directing the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions." 15. The observations made by the apex Court in paragraph 59 are also relevant and are being reproduced below:- "Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies." 16. In paragraph 68, it was held as under:- "It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. In paragraph 68, it was held as under:- "It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. Graduation and post-graduation non-professional colleges or institutes." 17. In Islamic Academy of Education and another v. State of Karnataka and others, (2003) 6 SCC 697 , while crystallizing the observations made in T.M.A Pai's case (supra), in paragraph 70 of the judgment (Islamic Academy of Education), the Apex Court held as under: - "70. With a view to appreciate the extent to which the Scheme formulated in Unni Krishnan was not found favour with T.M.A. Pai Foundation, we may set out the observations of this Court in T.M.A. Pai Foundation as follows: 1. Establishment of Educational Institutions All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right is subject to provisions of Articles 19(6) and 26-A. (See Answer to Question Nos. 10 & 11) 2. Admission to Courses (i) Private Unaided Professional Colleges; (a) Admission to professional colleges should be based on merit by common entrance test conducted by the Government agencies. 10 & 11) 2. Admission to Courses (i) Private Unaided Professional Colleges; (a) Admission to professional colleges should be based on merit by common entrance test conducted by the Government agencies. (b) Certain percentage of seats can be reserved for admission by management out of those students who have passed common entrance test held by itself or by the State agency and the rest of the seats may be filled up on the basis of counsellings by the State agency. Prescription by percentage has to be determined by the Government according to local needs. (c) When the considers the Constitution Bench's earlier statements that higher education is not a fundamental right, it seems unreasonable to compel a citizen to pay for the education of another more so in the unrealistic world, of competitive examinations which assess the merit for the purpose of admission solely on the basis of marks obtained where urban students always have an edge over rural students. Those who seek professional education, roust pay for it. (ii) .........................."(Emphasis added) 18. Thus, the Apex Court in paragraph 172 of Islamic Academy of Education's case (supra), crystallized the ration of judgment in T.M.A. Pai's case making a reference to paragraph 68 (in TMA Pai's case), and observed as under: - "172. Paragraph 68 should be read in five parts: (1) A difference is sought to be made as regards rules and regulations applicable to the aided institutions vis-a-vis unaided professional institutions. (This shows that the regulations relating to admission of students shall be less rigid for unaided institutions as compared to aided institutions); (2) While conceding autonomy to the unaided professional institutions (both minority and non-minority), it is mandatory that the principle of merit cannot be foregone or discarded (This shows that role-played by merit must be given due importance); (3) The conditions may be laid down by the University or the other statutory bodies entitled to grant recognition to provide for merit based selection. (The same, however, in my opinion, would not mean that no condition other than those imposed at the time of grant of recognition can be imposed by way of legislation or otherwise inasmuch as the field of imparting education in professional institutions is governed by statutes. (The same, however, in my opinion, would not mean that no condition other than those imposed at the time of grant of recognition can be imposed by way of legislation or otherwise inasmuch as the field of imparting education in professional institutions is governed by statutes. To the said extent, it has to be read down); (4) The management of a private unaided professional colleges for the purpose of admitting students will have options :- (a) to hold a common, entrance test by itself; or (b) to follow the common entrance test held by the State or the University. The students belonging to the management quota may be admitted having regard to the common entrance test either held by the management or by the State/University although the test may be common. So far as students belonging to poorer or backward section of society is concerned their seats will have to be filled up on the basis of counseling by the State agency. (As would appear from the discussions made hereinafter, it cannot be taken to its logical conclusion); (5) The percentage of management quota and the rest is required to be prescribed having regard to the local needs, (However, the percentage for minority unaided and non-minority unaided institutions may be different)." (Emphasis added) 19. From what has been observed by the Apex Court in the aforementioned cases, it thus, becomes clear that while autonomy has been conceded to unaided professional colleges, the principle of merit cannot fee discarded. The University or other statutory bodies can, at the time of grant of recognition/affiliation, provide for merit-based selection. The management of private unaided professional colleges, for the purposes of admitting students, will have the option: a/ to hold a common entrance by itself or; b/ to follow the common entrance test conducted by the State or the University; c/ The management quota seats can be filled up either through a common entrance test conducted by the private colleges or the common entrance test conducted by the State/University; d/ So far as the students belonging to poorer or backward section of society are concerned, their seats will have to be filled up on the basis of counselling by the State agencies. 20. In the aforementioned cases, the Apex Court clearly recognized the power of the University to hold a common entrance test as also counselling by a State agency. 20. In the aforementioned cases, the Apex Court clearly recognized the power of the University to hold a common entrance test as also counselling by a State agency. The argument of the counsel for the appellant that the University had no power or authority to hold either a common entrance test or conduct a centralized admission process/counselling, therefore, is patently contrary to the dictum of the Apex Court in the aforementioned cases. 21. We need to emphasize here the fact that, in the present case, the appellant along with other Colleges, did not conduct any common entrance test but admitted the students on the basis of so called `spot counselling'. As to how many candidates had applied to the appellant-College, what was their inter se merit and what was the exact process of the selection adopted by the College, is not forthcoming either from the records nor was stated in so many words at the time of arguments. Interestingly, it is not understandable as to how in the process of counselling conducted by the university only three candidates had opted for admission in the appellant-College out of 414 candidates, who had presented themselves before the Centralized Admission Committee. As against this, as many as 292 candidates are said to have been admitted by the appellant-College in the so called on the spot counselling conducted by it of its own. 22. It cannot be explained on any rational hypothesis, whatsoever, as to how a large number of students numbering 292 would suddenly opt to seek admission in the appellant-College when only 15 candidates had opted for admission in the appellant-College in terms of the admission process initially conducted by the University in pursuance to notification dated 14.06.2011, and later on, only 3 candidates had opted for admission in appellant-college in the second counselling process, which was initiated by the University. 23. The process of admission adopted by the appellant-College cannot, in any manner, be said to be conforming to the tests of a transparent, non-exploitative and merit-based admission as prescribed by the judgment of the Apex Court, noticed above. On Discrimination. 24. The next argument of the counsel for the appellant that the appellant-College has been discriminated against by the University is not regularizing the admission of 2892 candidates while regularizing the admission of 516 candidates, list whereof was submitted by the Forum of Colleges, is equally untenable. On Discrimination. 24. The next argument of the counsel for the appellant that the appellant-College has been discriminated against by the University is not regularizing the admission of 2892 candidates while regularizing the admission of 516 candidates, list whereof was submitted by the Forum of Colleges, is equally untenable. As has been referred to by us in the earlier paragraphs, it is misnomer to term the admission of students, list whereof was submitted by the Forum of Colleges, as a case of regularization by the University. In fact, in the meeting held between the University and the members of the `FORCE', it was agreed that the admissions made by the Colleges of their own would be deemed to have been cancelled and rejected and that the entire list of 516 candidates would be forwarded to the University for conducting a fresh process of counselling based upon the permission granted by the Chancellor of the University in that regard. 25. The appellant, however, chose not to forward the list of 292 students which were admitted by it of its own, to the University along with other list of 516 students, which was forwarded by the Forum of Colleges. Thus, there is no parity between 292 candidates illegally admitted by the appellant-College and those 516 candidates, whose admissions were deemed to have been cancelled and not recognized by the University but later subjected to a proper and transparent process of centralized counselling. The allegation of discrimination is, therefore, totally misconceived. Directions by Writ Court. 26. Direction (a): While dismissing the writ petition the learned Single Judge has issued certain directions to the extent of constitution of a high level Committee by the Universities of Jammu and Kashmir for rationalizing distribution of selected students amongst private B.Ed. Colleges and for that matter other private institutions so as to ensure that they get a fair share of the admissions made by the Centralized Admission Committee having regard to their intake capacity. Reference in this regard, as an illustration, has been made to the case of none else than the appellant itself by terming the allotment of only 18 candidates to the appellant-College as unjust as against its intake capacity of 334 candidates. Reference in this regard, as an illustration, has been made to the case of none else than the appellant itself by terming the allotment of only 18 candidates to the appellant-College as unjust as against its intake capacity of 334 candidates. In that backdrop, the learned Single Judges has directed the Universities of Jammu and Kashmir to take a fresh look at absolute discretion given to a student to opt for admission in a particular college of his choice. 27. Direction (b): The learned Single Judge, further, advised the Universities to ensure that the private Colleges get a fair share of admissions made by the Centralized Admission Committee having regard to their intake capacity. 28. Direction (c): Yet another direction has been given with a view to take a re-look into the mode and mechanism as also the criteria for grant of permission by the State Government and the affiliation by the University to new private B.Ed. Colleges so that economic viability of such Colleges attracts new attention of the State Government and the University authorities as also the promoters of such new Colleges. The said direction has been given with a view to protect the private educational institutions like B.Ed. colleges, who may function like sick industrial units. 29. Although, neither the counsel for the University nor the State raised any objection to the directions issued by the Writ Court, at the time of arguments, we, however, are not inclined to uphold the same. 30. Permission to set up a B.Ed. College or its subsequent affiliation by the University of Jammu or Kashmir, does not carry with it an implied promise of continuous flow of students to such Colleges nor does it carry with it any implied promise to ensure economic viability of such Colleges at all times. 31. The Colleges must deliver in performance by ensuring compliance not just by conforming to the minimum standards prescribed by the University in terms of the infrastructure and faculty but by providing the best in infrastructure and a highly trained, qualified, motivated and distinguished faculty. The results of the extra effort put in by the colleges would then get reflected through the students at the time of performance of their results. 32. The Colleges must either perform and deliver or perish. The results of the extra effort put in by the colleges would then get reflected through the students at the time of performance of their results. 32. The Colleges must either perform and deliver or perish. The best judge regarding the performance of Colleges is the student community itself, who exercise their right of choice at the time of counselling. 33. A student must be given the right to study in a particular institution subject, of course, to merit and availability of seats in a college of his choice. Any effort to distribute students among the colleges, ignoring their wishes, would strike at the very principle of merit-cum-choice and defeat the entire effort of counselling by the University and would be against the University Statutes and the law as discussed here-in-above but also seriously affect the career of meritorious students. Therefore the direction issued by the learned Single Judge to take a fresh look at the absolute discretion given to a student to opt for admission in a college of his choice would not be sustainable. 34. For the reasons mentioned above, the appeal does not merit admission which is devoid of merit. The same is, accordingly dismissed. The judgment and order impugned, passed by the learned Single Judge, is modified in the light of observations made above.