St. Mary''s Technological Foundation vs State of West Bengal

Tapabrata Chakraborty, J.—A legal tussle has spiralled up to this Court seeking a quietus to the issues as to whether a minority institution, in the facts of the case, was right in applying its own procedure and method of admission to fill up vacant seats in the Engineering and Technology Course and as to whether the students admitted on the basis of the entrance test conducted by the minority institution can be denied registration by the concerned university.

The first writ application being W.P. 1509 (W) of 2015 has been preferred by St. Mary''s Technical Campus, Kolkata (hereinafter referred to as the said institution) along with its founder body, namely, St. Mary''s Technological Foundation and its Head, inter alia, praying for approval of the admission of the students made by the said institution in the 1st Year of the Engineering and Technology Programme/Course for the year 2014.

The second writ application being W.P. No. 9722 (W) of 2015 has been filed by 285 students of the said institution, inter alia, praying for registration of their names in the rolls of Maulana Abul Kalam Azad University of Technology, West Bengal (hereinafter referred to as the said university). As common issues are involved, both the writ applications have been taken up for hearing together.

Records reveal that both the writ applications were taken up for hearing on 14th May, 2015 and as an interim measure, the university authorities were directed to allow the writ petitioners in W.P. No. 9722 (W) of 2015 to take the 2nd semester examination. Pursuant thereto, the university authorities allowed the said students to appear in the said 2nd semester examination and they have continued with their studies pertaining to the next semester examination. Thereafter by an order dated 18th November, 2015 the said university was directed to allow the students to appear in the 3rd semester examination with an observation to the effect that such participation shall not create any equity in their favour.

Shorn of unnecessary details the facts are that prior to commencement of the admission process pertaining to the academic session 2014-15 a proposal was submitted by an Association of five Minority Professional Private Self-financing Professional Academic Institutes (hereinafter referred to as AMPAI) to conduct a separate common entrance examination, namely, CEE-AMPAI-2014 for both minority and non-minority candidates for admission to 50% of their approved seats in Engineering and Pharmaceutical Courses. Upon receipt of such proposal a State level academic Advisory Committee was constituted by the higher education department, Government of West Bengal for the purpose of examining the details of the proposal and thereafter a notification was issued on 7th March, 2014 accepting the proposal of AMPAI subject to the conditions specified therein. Thereafter a notification was issued on 8th June, 2014 prescribing the guidelines towards ecounselling and admission process for the academic session 2014-15. Subsequent to completion of the admission process as prescribed in the guidelines by 31st July, 2014 there were 524 vacancies in the said institution and to fill up the said vacancies, the said institution published an admission notification on 1st August, 2014 and held the CEE AMPAI - 2014 Decentralised Counselling (hereinafter referred to as the said entrance test) and out of 515 applicants, 471 candidates passed and ultimately 319 students took admission. Thereafter the said institution approached the said university for registration but such prayer was not considered and aggrieved thereby the said institution approached this Court through a writ application being W.P. 31644 (W) of 2014 and by an order dated 2nd December, 2014 this Court requested the Vice-Chancellor of the said university to decide as to whether the students of the petitioner''s institution can be allowed to take part in the ensuing examination. Pursuant to the said order of this Court the Vice-Chancellor of the said university passed an order dated 5th December, 2014 observing, inter alia, that the notification dated 7th March, 2014 did not provide for any decentralized counselling by any of the five minority institutions and the prayer for grant of registration and participation in the ensuing examination was refused. The said order was placed before the Court in W.P. No. 31644 (W) of 2014 and the Court by an order dated 10th December, 2014 observed that in view of the order passed by the Vice-Chancellor nothing survives for decision and accordingly the writ application was disposed of with an observation to the effect that the said order shall not preclude the petitioners to question the legality of the order dated 5th December, 2014.

Mr. Sriram, learned advocate appearing for the petitioners in W.P. No. 1509 (W) of 2015 submits that the right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided minority educational institutions is on a transparent basis and the merit is adequately taken care of. A minority institution may have its own procedure and method of admission as well as selection of students. The said institution being a certified religious Christian minority institution is constitutionally protected to admit students of their choice, subject to the overriding concern of ensuring upkeep of standards of education imparted and ensuring that the students who secure admission in such institution do not fall below the relevant standards of education. The only area of regulation available for the regulatory body, to interfere into the process of selection of students undertaken by an unaided minority educational institution, is the compliance with the triple tests of being fair, transparent and non-exploitative.

He further submits that the interim policy regulations notified on 7th March, 2003 by the All India Council for Technical Education (hereinafter referred to as AICTE) have no application to the fact situation. The said regulations were notified in pursuance of the directions contained in para 59 of TMA Pai Foundation case. By reason of the fact the law enunciated in Islamic Academy and PA Inamdar case, which were delivered subsequently, i.e., on 14th August, 2003 and 12th August, 2006, the law declared in TMA Pai case, has been understood and clarified, the interim policy regulations stand eclipsed. The alternative entrance tests to be conducted by the private institutions, have been held to be a facet of the autonomy of the said institutions, having regard to the fundamental right under Article 30(1) of the Constitution of India. The bar to any test other than Government entrance test, as provided for in the interim policy regulations, would be contrary to the judgments of the Hon''ble Supreme Court in Islamic Academic and PA Inamdar case.

He further contends that the reasons informing the impugned decision of the university refusing to grant registration to the candidates admitted by the said institution by the entrance test, are vitiated by non-application of mind. The reference to the consensual agreement dated 7th March, 2014 and absence of enablement towards such a course by the petitioners, is inapposite and perverse, inasmuch as, the consensual agreement only provided for a seat-sharing quota between the petitioners and the government.

According to Mr. Sriram, the notification dated 18th June, 2014 regulating the issue of process of admissions of decentralised counselling limiting the eligibility of students to seek admission into the said institution, only limited to parameters of eligibility enumerated in clause 6.1(a) to (e) in respect of engineering courses and not extending to those candidates who secure qualifying marks in the qualifying examination (10+2) or those who secure ranks in the entrance test conducted by the said institution constitutes an unreasonable restriction upon the fundamental right of the minority educational institutions under Article 30(1) of the Constitution of India. The power of imposing reasonable regulations on the minority educational institutions, does not clothe the respondents, to impose any such restrictions, which force the institution to keep its approved seats unfilled or vacant thereby rendering the institution unviable.

He further submits that no issue of commercialisation of education would arise in the facts of the case, inasmuch as, each of the students who has secured admission in the process of decentralised counselling undertaken by the petitioner belongs to marginalised sections of the society and the said institution has not collected any fee from the students subject to the scholarships to be provided to them under law. The admissions made by the said institution cannot be solely faulted on the ground of the religious status of the students so admitted who do not belong to the minority community.

Mr. Sricharan T., learned advocate appearing for the petitioners in W.P. No. 9722 (W) of 2015 submits that in view of the large number of vacant seats the said institution in the process of decentralised counselling, the said institution issued notification dated 1st August, 2014 proposing an entrance test for making admission against the vacant seats with the eligible candidates. All the petitioners and others appeared for the entrance test conducted by the said institution on 10th August, 2014 and accordingly merit list was published and the said institution admitted 369 students against 480 unfilled seats and still 111 seats are lying vacant. The said university denied for registration to the petitioners on the ground that such admission is in contravention of clause 6 of the admission guidelines.

He further submits that if it has to be understood that the admission guidelines at clause 6 provides for making admissions limiting to the suitable candidates only as provided under clause 6.1 and no other eligible candidate and that the said institution shall not be allowed to make admissions against further vacant seats after providing admission for the category of students mentioned at Clause 6.1, the same would not be a reasonable restriction and would be against the fundamental right of the said institution under Article 30(1) of the Constitution and the said clause has to be read down to the extent that after making admissions with the eligible candidates as provided under clause 6.1 of the notification dated 18th June, 2014, the vacant seats can be filled up with eligible candidates on merit basis. All the petitioners who have been admitted are fully eligible and qualified to pursue engineering courses and such admission is valid and legal.

He further submits that all the petitioners have passed 10+2 examination in science stream and are eligible to pursue engineering courses. Most of the petitioners are from schedule caste/schedule tribe/other backward castes recognised by the respective State Governments and are from economically and socially backward families. Most of them have no knowledge about Government scholarship schemes for higher technical education courses and are not aware about West Bengal Joint Entrance Examination-2014 (hereinafter referred to as WBJEEM-2014) conducted by the West Bengal Joint Entrance Examination Board (hereinafter referred to as the said Board) of the State Government and Joint Entrance Examination-2014 (hereinafter referred to as the JEE MAIN-2014), an all India entrance test conducted by the Central Board of Secondary Education. Only after the said institution personnel contacted the petitioners and their guardians and counselled them about the benefit of pursuing higher technical education and the Government scholarship scheme, most of the petitioners being appraised of the benefits appeared for the said entrance test and were admitted into respective courses in the said institution basing on the merit assigned in the said entrance test.

On behalf of the petitioners reliance has been placed upon the following judgments :

(a) T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors. Etc. Etc., reported in 2002 (8) SCC 481;

(b) Islamic Academy of Education another v. State of Karnataka others, reported in 2003 (6) SCC 697;

(c) P.A. Inamdar & Ors. v. State of Maharashtra &Ors., reported in 2005 (6) SCC 537;

(d) State of H.P. and Ors. v. Himachal Institute of Engg. and Technology, Shimla, reported in 1998 (8) SCC 501;

(e) Un reported judgment delivered in case of Association of Self Financing College v. State of Gujarat in Special Civil Application No. 13067 of 2013;

(f) Unreported judgment delivered in CWP. No. 17284 of 2008;

(g) Unreported judgment delivered in the case of Rajan Purohit & Ors. v. Rajasthan University of Health Science &Ors. in Civil Appeal No. 8142 of 2011;

(h) Unreported judgment delivered in the case of Jayamatha Engineering College v. Union of India and Ors. in WP (Civil) No. 538 of 2014.

Ms. Mitra, learned advocate appearing for the said university submits that in terms of order passed by the Hon''ble Supreme Court of India and in terms of the policy frame work laid down by the Ministry of Human Resource Development, Government of India, AICTE made guidelines on Common Entrance Tests for admission to Engineering, Architecture and Pharmacy programme in the country. The guidelines for admission as framed by AICTE have a statutory character. In terms of the said guidelines all admission to the degree level Engineering, Architecture and Pharmacy programmes should be made through entrance tests from the academic year 2004-2005 onwards. Such interim policy regulation is subsisting till date and therefore any departure by the institutions in admitting students without the entrance test, amounts to violation of such policy regulations.

She further submits that the said institution after surrendering its left over seats to Joint Entrance Board as per the provisions of the notification dated 18th June, 2014, once again admitted all non-minority students, who did not have any rank in JEE/AIEE or AMPAI. By adopting such method, the said institute had violated the consensual arrangement entered into between the minority institutions and the State Government.

She further submits that the Hon''ble Apex Court in the judgments delivered in the cases of T.M.A. Pai Foundation (2002) 8 SCC 481, Islamic Academy of Education (2003) 6 SCC 697, P.A. Inamdar (2005) 6 SCC 537 has categorically stated that the admission procedure in technological courses should be fair transparent, merit based and non-exploitative. A minority institution may have its own procedure and method of admission as well as selection of students, but such procedure must be fair, transparent and merit based. In the present case, the said institution in clear violation of the directives of the Hon''ble Apex Court, admitted 369 students, based on only the marks obtained in 10+2 examination and through an alleged entry level test through a body constituted by the institution itself and not by the Association of Colleges/minority institutions/State Government/All India body. From the schedule of such alleged entry level test, conducted by the institution, it appears that the said institution not only allowed almost 500 students to sit in such test on a single day but published merit list on the self same day upon alleged verification of the answer scripts of almost 500 students. Such haste in conducting the alleged admission test and publication of merit list and conclusion of admission process indicates that a fair, transparent and non-exploitative process was not followed by the petitioner No. 1 while conducting the alleged entrance/admission test.

According to Ms. Mitra, most of the private self-financing engineering colleges similarly placed as the said institution could not fill up huge number of seats during the academic year 2014-2015 and onwards. None of those institutes, however, admitted any student directly without following the guidelines for admission, like the said institution. In such circumstances, if the prayer of the petitioners is allowed directing the university to register the illegally admitted students, the same would not only cause gross injustice to those institutions, who have followed the admission guidelines of the higher education department and policy regulations of AICTE and have not directly admitted any students in the vacant seats but would also cause violation of the directives of the Hon''ble Apex Court.

Drawing the attention of this Court to the averments made in the writ applications, Mr. Abhijit Gangapadhyay, learned advocate appearing for AICTE submits that the said institution had not challenged the provisions of Appendix I of AICTE Approval Process Handbook 2013-14 which categorically provides that candidates having 10+2 passed qualification can be admitted provided they qualify in the entrance test conducted by the competent authority. The competent authority to conduct such entrance test is the government. Having accepted the provisions specified in the said Appendix, the petitioners cannot challenge the interim regulations of the year 2003 wherein it has been provided that all seats including the seats reserved for the management must be filled up through Joint Entrance Test/Common Entrance Test conducted by Central/State Govt. or University followed by counselling as per present practise. However, the private unaided institutions may fill up the management seats by having their own counselling in an objective and transparent manner taking the students from same merit list prepared on the basis of Joint Entrance Test/Common Entrance Test of Central/State Government.

He further submits that it would be explicit from the admission notification of the said institute dated 1st August, 2014 that seven days time was given for applying from 1st August, 2014 to 8th August, 2014 till 5.30 p.m., the entrance test was scheduled on 10th August, 2014 at 12 noon, the merit list was scheduled to be published at 8 p.m. on 10th August, 2014 and the counselling was scheduled on and from 11 a.m. on 11st August, 2014 till 5.30 p.m. on 12th August, 2014. Such sequence clearly reveals that the selection was conducted in hot haste which maligns the selection and renders it to be unfair and non-transparent.

According to Mr. Gangapadhyay, the entrance test was a fake one and that none of the 369 candidates empanelled belongs to Christian minority and such admission is violative of the minority character of the said institution.

He further submits that as per the provisions of the notification dated 7th March, 2014, the conveners of CEE AMPAI-2014 were required to submit institution - wise and discipline-wise vacancy status so that the vacant seats can be filled up by the WBJEEB though its centralised online counselling process of 2014-2015. In view of such provisions, the said institution could not have retained any vacant seat and that as such the admission of candidates by the said institution in the seats remaining vacant after the decentralised admission process as specified under clause 6 of the guidelines, was absolutely without jurisdiction.

Mr. Gangapadhyay further submits that on 26th December, 2015, the Chairman of the said institute wrote a letter to the Chairman, AICTE stating, inter alia, that he was submitting misleading and unauthentic statements before the Hon''ble Court and that such conduct speaks of the desperation of the Chairman of the said institute to protect the interest of the students who have been admitted upon availing huge amount of fees.

Mr. Chattopadhyay, learned advocate appearing for the State respondents submits that the seat sharing proposal of the said institution along with other four minority institutions was considered and accepted by the Government and detailed guidelines were framed and upon entering into an agreement the said institution could not have acted in derogation to the same and that as such the decision of the said institution to conduct an entrance test was absolutely without jurisdiction.

In reply, it has been submitted on behalf of the petitioners that the allegation to the effect that the entrance test was conducted by the said institution in hot haste is unfounded inasmuch with the aid of computers, the results can be obtained within a few hours and that as such process adopted cannot be doubted simply because the same was a speedy one. An evaluation committee was constituted with the academic experts and the merit of the candidates appearing in the said test was appropriately tested and a panel was prepared on the basis of merit and the candidates were admitted. There was no consensual agreement or discussion with regard to the unfilled vacancies and that as such no bar was operating upon the said institution to fill up the vacant seats by holding an independent entrance test and the candidates who have already been admitted and who have continued with the course and have appeared and emerged to be successful in the semester examinations cannot be made to suffer.

I have heard the learned advocates appearing for the respective parties and I have considered the materials on record.

The undisputed facts are that the Government allowed the association, namely, AMPAI comprising of five minority institutions to conduct a separate common entrance examination for the academic session 2014-15 for admission to 50% of the approved seats in Engineering and Pharmaceutical Courses vide memorandum dated 7th March, 2014. It was categorically stated in Clause 10 of the said memorandum that the convenors of the CEE AMPAI-2014 Examination shall submit a full report after the said examination mentioning the number of seats remaining vacant so that the same can be filled up by the WBJEEB through centralised online counselling process in 2014-15. Thereafter a notification was issued on 18th June, 2014 prescribing the guidelines towards ecounselling and admission process for the 2014-2015 academic session.50% of the intake capacity of the said institution was 270 out of which 11 seats were filled up through CEE AMPAI-2014, 5 seats were filled up through e-counselling by WBJEEM, 44 seats were filled up through decentralised counselling and thereafter 369 seats were filled up through the entrance test conducted by the said institution but the university authorities refused registration to the said candidates. Aggrieved thereby this Court was approached through a writ application and in terms of the order passed in the same an order was passed by the Vice-chancellor to the said university on 5th December, 2014 rejecting the prayer for grant of registration.

In the backdrop of the said undisputed facts and particularly from the contents of the memoranda dated 7th March, 2014 and 18th June, 2014 it is explicit that no authority was conferred upon the said institution to conduct any further entrance test after the conclusion of the decentralised admission process as provided under Clause 6 of the memorandum dated 18th June, 2014. No provision has been brought to the notice to this Court to the effect that irrespective of the regulations of AICTE and irrespective of the terms and guidelines, as incorporated in the memorandum dated 7th March, 2014 and 18th March, 2014, the said institution was authorised to conduct a fresh entrance test. Thus the argument of the petitioners to the effect that for existence of a large number of vacancies after completion of decentralised admission process, the said institution earned a right to fill up the same, is not acceptable to this Court.

Even assuming the said institution had the jurisdiction to conduct such entrance test, it needs to be ascertained as to whether such entrance test satisfies the triple tests of being fair, transparent and non-exploitative. It is explicit from the admission notification issued by the said institution that the examination was held on 10th August, 2014 at 12.00 noon and the merit list was published in the evening on the self-same date at 8.00 p.m. and admission was completed within the period from 11.00 a.m. on 11th August, 2014 to 5.30 p.m. on 12th August, 2014. Such sequence clearly reveals that the said institution proceeded in hot haste and the averments in the writ application do not provide any acceptable explanation towards the process as adopted for filling up 369 vacancies. Transparency and merit have to be unavoidably taken care of and cannot be compromised. Thus, in my opinion, the said entrance test conducted by the said institution does not satisfy the triple tests of being fair, transparent and non-exploitative.

The real import of Article 30(1) is that it contemplates a minority institution with a sprinkle of outsiders admitted into it. A perusal of the list of the candidates admitted after the entrance test, as annexed at pages 211 to 223 of the writ application, would reveal that none of the candidates admitted belongs to the Christian minority and thus within the approved intake of 540 seats, the admission of 369 non-minority students, cannot, by the furthest of imagination be construed to be a "sprinkle of outsiders". In the backdrop of such factual scenario, this Court is of the view that the refusal of registration by the said university does not affect the autonomy or the rights guaranteed under Article 30(1) of the Constitution of India.

From the list of 285 students who have been denied registration, as produced, it appears that none of them are domiciled within the State of West Bengal. To establish a minority institution the same must primarily cater to the requirements of the minority of that State else its character of minority institution is lost. The right conferred upon minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority.

Next arises the question as to whether any fee was collected by the authorities of the said institution from the said 369 candidates. In the supplementary affidavit filed by the petitioners in W.P.1509 (W) of 2015 it has been sought to be explained that as per the understanding between the students and the said institution the amount to be awarded to the students by the Government through scholarship will be deposited to the college and that no extra amount under whatever name will be charged from the students. However, from the list produced by the said institution in the midst of the hearing of the writ applications, it appears that approximately an amount of Rs.84,67,200/- was collected from 84 students. Thus the contention of the said institution that it has admitted the students without taking any money whatsoever is not acceptable and in my opinion collection of such amount stands out to be an instance of unreasonable profit in filling up vacant seats not justified by cost or risk.

To answer a query of this Court as to how many students amongst the said 369 students admitted after the entrance test are pursuing the courses, a list was produced disclosing that 84 students out of the 369 students admitted through the entrance test conducted by the said institution had left the said institution. The rest 285 students filed the writ application being W.P. No. 9722 (W) of 2015 and that thereafter 44 students left and 244 students appeared in the 2nd Semester Examination as per the order of the Court. Thereafter out of those 241 students again 89 students left the said institution and only 152 students ultimately appeared in the 3rd Semester Examination. The averments made in the writ application being W.P. No. 1509 (W) of 2015 further reveal that 86 candidates who did not even appear in the entrance test held by the said institution were also admitted in the existing vacancies. Such action of the said institution is not acceptable and having illegally conducted such entrance test and having admitted non-minority students in the vacancies which were required to be surrendered by the said institution, it cannot be argued that by denying registration to the said candidates the respondents have interfered with the autonomy and fundamental right of the said institution. The said candidates who chose not to appear in examination conducted by the competent authority and who had no avenue to avail admission in engineering courses were picked up by the said institution and were admitted by holding an entrance test in hot haste and upon collecting money from them. The process adopted by the said institution in admitting the students by conducting an entrance test, on its own, tips the scales of the standard required to be maintained and defeats the prospect of excellence. The said institution has admitted the students knowing fully well that such admission would lead to a procrastinated legal tussle and that the ultimate sufferers would be the students.

The judgment in the case of State of H.P & Ors. (supra) was delivered in the backdrop of a scheme providing for 50% admission on merit basis and 50% admission on payment basis by the management through a reasonable criteria of selection and in the backdrop of a factual scenario where large number of payment seats were lying vacant and the denial to fill up the same would lead closure of the institution running professional course. In the case of State of Gujarat (supra) the Court was approached to find out a workable solution where 3297 seats were lying vacant and in the backdrop of a scheme only providing for two modes of admission. The judgment in CWP. No. 17284/2008 was also delivered in a fact situation where 17000 seats were lying vacant and the university at the inception did not make any specific provision to meet such a fact situation. All the judgments including the judgment delivered in the case of Ranjan Purohit & Ors. (Supra) and Jayamatha Engineering College (Supra) upon which the petitioners have placed reliance are thus distinguishable on facts. It is well known that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is also well known that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process. In the instant case AMPAI was already given an opportunity to fill up 50% of its intake capacity by conducting an entrance test independently. Such test was conducted by AMPAI and the vacancies remaining thereafter were surrendered for the next process of selection as would be explicit from the memoranda dated 7th March, 2014 and 18th June, 2014.

All the minority institutions constituting AMPAI consciously agreed to the admission process as framed. Save and except the said institution no other minority institution within the AMPAI conducted any separate entrance test for the purpose of filling up the remaining vacancies which in fact had been surrendered by the respective institutions in terms of the Government memoranda. In such circumstances, if the prayer of the petitioners is allowed directing the university to register the illegally admitted students, the same would lead to discrimination and would cause gross injustice to those institutions, who have followed the admission guidelines of the higher education department and policy regulations of AICTE. Having consciously agreed to and accepted the procedure and guidelines as framed, the said institution cannot ask to read down the guidelines to legalise the irregularities perpetrated.

The fact that the students were permitted to participate in the semester examinations under interim orders of the Court or the fact that their irregular admission would ultimately be tested by their performance in the degree course are no consideration to allow the petitioners to continue their courses in the said institution and any direction upon the university to grant registration in their favour would stand out to be an instance of misplaced sympathy.

For the reasons discussed above, the reliefs as prayed for are not available to the petitioners and both the writ applications are, accordingly, dismissed.

There shall, however, be no order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.