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Judgment
PetitionerInstitution is recognized by respondent No. 1. It is imparting instructions in the discipline of MBA. The students who join, join after
they are found successful in the common enhance test. As per the petitioner, it has a capacity to impart instructions to 60 students. It is further
submitted that six students have been given admission after the list furnished by the University was duly exhausted. This is being objected to by the
University. Petitioner Institution has come to this court with a plea that it was well within its rights to admit six candidates over and above the list of
candidates furnished by the respondent University. It is submitted that as seats were lying vacant, these could be filled by the petitioner Institution
without reference to the University. For this basic reliance has been placed on the decision of the Supreme Court reported as AIR 1996 SC 2652
T.M.A. Pai Foundation v. State of Karnataka. Particular reference is being made to paragraph 4(vi) of the judgement. For facility of reference, this
paragraph in so far as relevant is being reproduced below :
... All that we need to add to the said clause is that the action contemplated therein shall be taken within fifteen days of the closing date for
admission Any seats remaining unfilled thereafter can be filled by the management of the private engineering colleges on their own and in their
discretion. This direction shall not apply to medical/dental colleges.
It is accordingly submitted by the petitioner that in terms of the aforementioned decision, a discretion vested in the petitioner Institution and that
discretion has been exercised and no exception can be taken to it.
The stand of the respondent University is that the students who have been admitted are those who never took part in the process of
examination. It is submitted that after the judgement was given by the Supreme Court in the case of Unnikarishnan, J.P. v. State of Andhra
Pradesh, (1993) 1 SCC645, Statutes were framed by the Universities dealing with the method and manner in which the admission is to be made in
the private institutions. It is submitted that in terms of these statutes and more particularly statute 6 (C) (v), framed by the respondent University
herein, only those candidates are eligible who fulfill the criteria indicated in this Statute. For facility of reference, this Statute is being reproduced
below :
For admission to MBA course a candidate to be eligible, must have passed the qualifying degree examination in any disciplinary stream with
atleast 50 % of the aggregate marks (40% for Scheduled Caste/Tribe candidates). Candidates who have qualified the final examination of the
Institute of Chartered Accountants/Cost & Works Accountants/Company Secretaries/Engineers (i.e. AMIE) shall also be eligible for admission
provided they have secured atleast 50 % of the aggregate marks. Selection for admission to the course shall be made through an Entrance Test,
interview and group discussion as per programme to be notified by the concerned Department, provided further no candidate shall be eligible for
admission to MBA 1st Semester course unless he passed the Entrance Test with atleast 50 % marks (40% for SCI ST candidates).
It is accordingly submitted by the University that unless and until a candidate has passed entrance Test with atleast 50% marks (40% in case of
SC/ST candidates), no admission can be granted by the Institution. Thus, passing of Entrance Test with 50% marks is said to be a condition which
must exist and if this does not exist, then, as per the University, any admission made would be in breach of the Statute referred to above and
cannot be recognized. In addition to this, reliance is being placed on paragraph 170 (4) of the judgement in UnniKrishnan's case (supra), which
lays down that ""No professional college shall call for applications for admission separately or individually. All the applications for admission to all
the seats available in such colleges shall be called for by the competent authority alongwith applications for admission to Government/University
colleges of similar nature."" It is accordingly submitted that any admission given would be in breach of the decision given in UnniKrishnan's case It is
further submitted that the University did not recognize the admission and gave directions to cancel the candidature of these six candidates. But
instead of doing so, the Institution has filed this petition. It is submitted that the cause of action if any, has arisen to the students that and the
petitioner Institution cannot approach this Court.
After having heard learned counsel for the parties, I am of the opinion that but for the view expressed by the Supreme Court in the case TMA
Pai Foundation's case on which reliance has been placed by the petitioner, what is stated by the counsel for university would have held the filed.
The spirit behind the judgement given in UnniKrishnan's case was that private institutions should not make any admission of their own. The concern
was for the standard of education and also of eligible candidates so that they are given a chance to compete in the process of selection. No
exception can be take to the arguments as advanced by the counsel for the University in this regard But as indicated above, a perusal of the
observations made by the Supreme Court in TMA. Pai Foundation's case on which reliance has been placed by the petitioner and a reading of
paragraph 4(vi) of he judgement in the above case makes it apparent that this para does advance the plea put across by the petitioner institution.
This paragraph deals with a situation regarding which the Statutes are silent and do not contemplate as to what is to happen if after the Entrance
test, some seats remain unfilled. It was precisely in this area, the directions were given by the Supreme Court in TMA. Pai Foundation's case. The
observations made in this regard stand noticed above. Therefore, on the basis of above observations, the petitioner institution is right in its
submission that it could take recourse to filling the seats at its own level.
The counsel for the University has, at this stage, pointed out that the observations made by the Supreme Court on which reliance is being placed
by the petitioner institution would operate only if the seats have been offered and out those seats, some candidates do not join. It is submitted that
only then, the institution can make a choice of its own.
The discretion as indicated above is there and the net result which is likely to ensue is the same and the candidates who are ultimately given
admission would be those who have not taken part in the se lection process. Therefore, this is an area where there existed no Statute. Therefore,
what was held by the Supreme Court in TMA Pai Foundation's case (supra) would be attracted to the facts of this case also.
The learned counsel for the respondents also states that even regarding this, Regulations have been framed now and in future such a situation if
arises, has been provided for.
Leaving the matter as it is end on the basis of position noticed above, the petitioner institution is held to be well within its rights to grant
admission and having done so, no exception can be taken to it.
There is another aspect of the matter. The students have been imparted instructions for a period of one year. The total duration of the course is
two years therefore, at this stage it would not be apt to throw them out. What was said in this regard by the Supreme Court in the case of
Rajendra Prasad Mathur v. Karnataka University and another. AIR 1986 SC 1448 would be attracted to the facts of this case. In the above case,
the students who had passed their examination from Rajasthan were ineligible for admission to B.E. Degree course for Karnataka University. They
were granted admission in certain colleges. Their admission was found to be contrary to the rules. However, directions were given by the Supreme
Court to let them continue with the course of studies. The relevant observations made are as under :
The fault lies with the Engineering Colleges which admitted the appellants because the Principals of these Engineering Colleges must have known
that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the
appellants. We do not see why the appellants should suffer for the sins of the managements of these Engineering Colleges. We would therefore,
notwithstanding the view taken by us in this judgement allow the appellants to continue their studies in the respective Engineering Colleges in which
they were granted admission.,,
Taking note of the observations reproduced above and the observations made in TMA Pai Foundation's case, the admission granted by the
petitioner institution is being maintained The University is, however, left free to clarify the Regulation if any, framed in this regard, if not al ready
done so that the area in which there exists a, doubt regarding the area as in this case is clarified for future selection. It is also clarified that the
petitioner institution in question would not make any selection of their own and in case they are to do it, they would first refer the matter to the
University. The university also would circulate instructions to various private institutions in this regard.
With the above observations, this petition is disposed of.