- (1.) This writ petition under Article 226 of the Constitution of India has been filed by the petitioners on 23-9-2003 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned order dated 11-9-2003 (Annex. 8) passed by respondent No.1-State of Rajasthan, Technical Education Department, Jaipur by which : (i) the admissions given by the petitioners above the prescribed limit in the D-Phar-macy Course were cancelled ; (ii) only those students, who came through Rajasthan Pre-Pharmacy Test, 2003 were found eligible; (iii) the Management quota of 9 seats was held to be within 60 seats and, therefore, it was directed that names of only 60 candidates be sent; be quashed and set aside and the respondents be directed to regularise all the 79 students admitted in the D-Pharmacy Course with the petitioners' College and they be allowed to complete their Pharmacy Course.
(2.) The case of the petitioners as put forward by them in this writ petition is as follows : The petitioner No. 2 Jan Hit Sewa Sansthan is a registered Society under the All India Council for Technical Education Act, 1987 (hereinafter referred to as "the Act, 1987"). The case of the petitioners is that the applications were invited from the registered Societies and Trusts for opening Private Technical Colleges and in pursuance of that, the petitioners also applied in the name of petitioner No.1 Agarwal Pharmacy College for Two Years' Diploma Course in Pharmacy. The said application of the petitioners was accepted by the respondents through order Annex. 1, dated 28-4-2003. The further case of the petitioners is that the Technical Education Department, Government of Rajasthan, Jodhpur through letter Annex. 2, dated 30-6-2003 informed the petitioners that the All India Council for Technical Education (for short "AICTE") through letter Annex. 3, dated 20-6-2003 granted the approval for opening of the Diploma Course in D-Pharmacy from the Academic Session 2003-04. The further case of the petitioners is that though they applied for strength of 420 seats for admission in the Diploma Course in D-Pharmacy, but while granting permission, the AICTE, as per their policy, restricted the strength of the students upto 60 only. The further case of the petitioners is that the State Government issued letter dated 21-5-2003 (Annex. 5) to different Universities in Rajasthan interpreting the judgment of the Hon'ble Supreme Court in T. M. A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 : (AIR 2003 SC 355) in which it was held by the Hon'ble Supreme Court that all private colleges, who are un-aided from the Government have liberty to give admissions at their own with a restriction only that the University calendar has to be followed by the State Unaided Technical Colleges. The further case of the petitioners is that the Course of Diploma in D-Pharmacy for the Academic Session 2003-2004 was started from 1st of July, 2003 and in view of the letter Annex. 5, dated 21-5-2003 issued by the State of Rajasthan, the petitioners at their own means managed to admit 30 students in the first year Diploma Course in D-Pharmacy and that Course was of two years. It may be stated here that during the course of arguments, it has been frankly admitted by the learned counsel appearing for the respondent Nos. 1 and 2 that out of these 30 students, 9 students were of management quota taken from the merit list prepared by the respondent No.4 Co-ordinator after holding Pre-Pharmacy Test, 2003 and counselling. Thus, there remains dispute of only 21 students admitted by the petitioners at their own choice. The further case of the petitioners is that a letter dated 1st July, 2003 (Annex. 6) was issued by the Coordinator, Pre-Pharmacy Test, Jai Narain Vyas University, Jodhpur (respondent No. 4) to the petitioners and the same was received by them on 5th July, 2003 and in that letter Annex. 6, it was stated that the Coordinator was going to start the counselling of qualified candidates of PPT-2003 from 7th July to 9th July, 2003 at 9.00 AM at Department of Chemistry, Faculty of Science, New Campus, JNV University, Jodhpur. The further case of the petitioners is that they were not aware that the students would be provided by the respondent No. 4-Coor-dinator. The further case of the petitioners is that in the counselling, the petitioners were given a list of admitted students on 17-7-2003 and in that list, the names of 39 students were shown. The petitioners admitted all these 39 students in the Diploma Course in D-Pharmacy. The letter dated 17-7-2003 along with the list of 39 students is marked as Annex. 7. The further case of the petitioners is that they were under the impression that no further students would be given by the respondent No. 4-Coordinator, but on 19-7-2003, a list of 10 students was given to the petitioners for admission in the same Course. The sanctioned strength of students for admission in the Diploma Course in D-Pharmacy was only 60, while the petitioners have admitted 79 students in the following manner: (i) 30 students were admitted by the petitioners at their own choice which include 9 students of management quota taken from the merit list prepared by the respondent No. 4-Coordinator. (ii) 39 students were admitted as per list given by respondent No. 4-Coordinator through Annex. 7 (iii) 10 students were admitted as per additional list given by the respondent No. 4- Coordinator on 19-7-2003. Total : : 79 students The further case of the petitioners is that 30 students including 9 students of management quota were admitted by them at their own means and if excess students were admitted by them in the Diploma Course in D-Pharmacy, a prayer was made by them to the respondents to allow the excess students to complete their Course and it was also prayed that since 21 excess admissions were made by them, they may be reduced proportionately during the next academic year. However, the said representation of the petitioners was rejected by the State of Rajasthan through impugned order Annex. 8 dated 11-9-2003 and that order Annex. 8 has been challenged by the petitioners in this writ petition on various grounds and the main grounds are as follows : (i) That there is a clause of Excess Admission in AICTE Handbook for Approval Process (Academic Year 2003-2004) at page No. 43 item q and the same reads as follows : "q) Excess Admission If any excess admission is made by approved Technical Institution during a particular academic year, the annual Intake for such institution may be reduced proportionately during the next academic year." In view of the above clause q and looking to the welfare of the students, the annual intake for the petitioners' Institution may be reduced proportionately during the next academic year. (ii) That if the bona fide mistake has been committed by the petitioners, for such mistake, the students should not be disturbed at all. Hence, it was prayed that the impugned order Annex. 8, dated 11-9-2003 passed by the respondent No. 1 State of Rajasthan be quashed and set aside and the respondents be directed to allow the 79 students admitted in the D-Pharmacy Course with the petitioners College to complete their Course. A reply to the writ petition was filed by the respondent Nos. 1 and 2 and their case is that the letter dated 30-6-2003 (Annex. 2) was issued in pursuance of the letter dated 20-6-2003 (Annex. R/1) issued by the AICTE and a bare perusal of the letter Annex. R/1 dated 20-6-2003 clearly goes to show that the AICTE accorded the approval under the AICTE Regulations, 1994 and the approved intake was assessed as 60 and since the maximum capacity was of 60 students, therefore, the rest contentions raised by the petitioners in this writ petition are of no use to them. The further case of the respondent Nos. 1 and 2 is that the petitioners' College was entitled to give admissions through the Central Counselling by the Government of Rajasthan only which is the condition precedent to the aforesaid approval accorded to the petitioners and if the petitioners' College had violated the said condition by admitting the students at their own means, their College would be liable to be de-recognized as per the terms and conditions laid down in the order Annex. R/1, dated 20-6-2003. It was further submitted by the respondents Nos. 1 and 2 that the 'AICTE Regulations, 1994 and AICTE Interim Policy Regulations, dated 7-3-2003 (Annex. R/4) clearly provide that for Professional and Technical Colleges, the admission merit is determined by Common Admission Test (i.e. PPT for Rajasthan) conducted by the Government Agencies. Furthermore, as per AICTE Regulations, 1994, no institution can admit students more than the sanctioned strength. Thus, it was submitted by the respondent Nos. 1 and 2 that the petitioners had violated the AICTE Regulations, 1994 and AICTE Interim Policy Regulations (Annex. R/4) as well as the terms and conditions of the approval granted to them through letter Annex. R/1, dated 20-6-2003 because admittedly they had admitted 79 students against the sanctioned strength of 60 students. In these circumstances, it was submitted that the impugned order Annex. 8, dated 11-9-2003 was rightly passed and it was perfectly legal and valid as it was passed in accordance with the AICTE Regulations, 1994, AICTE Interim Policy Regulations (Annex. R/4) and the approval granted to the petitioners through letter Annex. R/1, dated 20-6-2003. On point that excess admissions can be reduced proportionately during the next academic year, it was submitted by the respondent Nos. 1 and 2 that through letter Annex. R/7, dated 30-10-2003, this aspect was considered and it was held that the clause q at page 43 of the AICTE Handbook for Approval Process (Academic Year 2003-2004) was for the purpose of penalty clause for those institutions which admitted students in excess and this could not be taken as a basis for process of admissions. The penalty of reducing of excess admission seats taken would be affected for the forthcoming years till further orders. Therefore, it was submitted that the petitioners are not entitled to take shelter of the above clause q for normal admissions. Hence, it was prayed that the writ petition filed by the petitioners be dismissed. A rejoinder to the reply of the respondent Nos. 1 and 2 was filed by the petitioners on 28-10-2003 and in that rejoinder, it has been submitted by the petitioners that the letter No. 635, dated 20-6-2003 (Annex. R/1) was not sent to the petitioners by AICTE nor the same was received by the authorities of the petitioners' College and thus, if the excess students were admitted by the petitioners' College, they were admitted under the bona fide belief and the petitioners were not at fault and furthermore, the letter dated 20-6-2003 (Annex. R/1) was sent by respondent No. 2 to the petitioners on 6-9-2003 and the same was received by the petitioners on 10th September, 2003, as is evident from the letter Annex. 10. The petitioners have further placed reliance on clause q at page 43 of AICTE Hand Book for Approval Process (Academic Year 2003-2004) for regulari-sation of students admitted in excess of prescribed quota of 60 seats and further, the annual intake of the petitioners' College may be reduced proportionately during the next academic year. A further reply to the rejeoinder of the petitioners was filed by the respondent Nos. 1 and 2 and it was submitted by them that it is wrong to say that the terms and conditions were never informed to the petitioners, as the petitioners were well aware of the terms and conditions as is evident from Annexures 3, 9 and 10 filed by the petitioners and Annex. R/1 and Annex. R/2 filed by respondent Nos. 1 and 2 along with reply. It has been further submitted by the respondent Nos. 1 and 2 that the petitioners were aware about the details regarding Diploma admissions as PPT advertisement dated 29-3-2003 was published in the Rajasthan Patrika by the respondent No. 4-Coordinator and a copy of which is marked as Annex. R/3. Not only this, through Notification Annex. R. 4, dated 7th March, 2003, Interim Policy Regulations were notified, which provide procedure and guidelines for admission and as per Interim Policy Regulations (Annex. R/4), all the 60 seats including 9 seats reserved for the management must be filled up through Joint Entrance Test /Common Entrance Test conducted by Central /State Government or University followed by counselling as per present practice. 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. Since the petitioners have admitted 79 students as against the sanctioned strength of 60 students, therefore, they had violated the AICTE Regulations, 1994 and AICTE Interim Policy Regulations (Annex. R/4) as well as the terms and conditions of the approval granted to them through letter Annex. R/1, dated 20-6-2003. Thus, the impugned order Annex. 8 was rightly passed.
(3.) I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents and gone through the materials available on record.;