1.0 The petitioner Association of Self Finance Colleges for AICTE Approved Professional Courses has prayed for a direction directing the respondents to issue necessary notification under the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 on the lines of the notifications issued in the past, permitting the concerned colleges to fill up vacant seats at the level of post graduation in the faculty of pharmacy and engineering from amongst the candidates who have passed the concerned qualifying examinations as specified in Professional Postgraduate Courses (Regulation of Admission and Payment of Fees) Rules, 2009.
2.0 The Admission Committee for Professional Courses – re spondent No.2 herein is a body constituted by the State of Gujarat under Section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act,2007. The basic object of respondent No.2 Committee is to regulate the process of admission, inter alia, at the level of post graduation in the discipline of Pharmacy and Engineering in accord ance with the provisions contained in the aforesaid Act and the Rules framed thereunder. The functioning of respondent No.2 Ad mission Committee falls within the domain of the Education Depart ment of the State of Gujarat, the respondent no.1 herein.
2.1 Respondent No.3 is in charge of implementation of the code of conduct prescribed by the Election Commission of India for the States where the assembly elections are to be held.
2.2 For the purpose of implementing the provisions contained in the said Act in respect of institutions imparting education in various technical discipline at the level of postgraduation, the State of Gujar at, through its Education Department, in exercise of powers con ferred upon it under section 4 read with section 20 thereof, has framed Rules under the nomenclature “Professional PostGraduate Courses (Regulation of Admission and Payment of Fees) Rules, 2009 (the “Rules” for short). After framing of the said Rules the same came to be amended from time to time by the State of Gujarat, through its Education Department. The amended rule 5 of the said Rules prescribes eligibility criteria for the candidate seeking an ad mission in the post graduate courses. The said amended rule 5 reads as under:
“5. Eligibility for Admission: (1) For the purpose of admission, a candidate shall have passed the qualifying examination in the relevant discipline, as specified in column 4 of Appendix I with 50% (45% for SC/ST/SEBC candidates) marks in the fi nal year of qualifying examination and shall have obtained the qualifying marks in GATE/GPAT.
(2) A sponsored candidate shall have –
(i) passed the qualifying examination in the relevant dis cipline as specified in column 4 of AppendixI with 50% (45% for SC/ST/SEBC candidates) marks in the final year of quali fying examination and shall have obtained the qualifying marks in GATE/GPAT;
(ii) minimum two years full time working experience in the academic industrial or research organization in the relevant discipline in which the candidate is seeking admission after passing the qualifying examination as on 1st July of the year in which application for admission is made.
(3) Notwithstanding anything contained in sub rule (1) and sub rule (2), if seats remain vacant after granting admission to the GATE/GPAT candidates, such vacant seats shall be filled in from amongst the candidates including sponsored candidates who have passed the qualifying examination in the relevant discipline as specified in column 4 of AppendixI with 50% (45% for SC/ST/SEBC candidates) marks in the fi nal year of qualifying examination and have appeared at the Common Entrance Test (CET) in the current academic year. A sponsored candidate shall have minimum experience as specified in clause (ii) of sub rule (2).”
2.3 The Rule 20 of the said Rules provides for filling up vacant seats after the completion of admission procedure. The said rule 20 reads as under:
20. Vacant Seats: After the completion of admission process or of fering admission to all the candidates whose names appear in the merit list, if the seats remain vacant, such vacant seats shall be dis played on the official website on notice board of the office of the Admission Committee and the same may be intimated to the con cerned institutions. In case any student requires admission on such vacant seats he shall apply directly to the concerned institutions. The concerned Institutions shall carry out admission process for such seats by maintaining interse merit of the applications received by them with prior permission of the Admission Committee.
2.4 If the subrule (3) of Rule (5) and Rule 20 of the said Rules are read together, it becomes clear that if the seats remain vacant after the completion of admission procedure in respect of candidates fall ing within the purview of subrule 1 and 2 of Rule 20, the said vacant seats may be filled up from amongst those candidates who may not have appeared in Common Entrance Test (CET) conducted by Ad mission Committee, if these candidates are otherwise eligible.
2.5 It appears that every year the State of Gujarat, through Educa tion Department, issues notification in respect of graduation and postgraduation courses, whereby those candidates, who have not appeared in Common Entrance Test are considered eligible, if they are otherwise eligible under the said Rules. The issuance of notifica tions by the State of Gujarat is followed by necessary advertisement by the Admission Committee.
2.6 As far as the postgraduation course in the faculty of pharmacy and engineering is concerned, the notification mentioned above is is sued in the middle of October of the concerned academic year. The petitioner was therefore expecting the notification of the aforesaid nature for the current academic year in the month of October 2012. However, since nothing was heard in this regard in the month of Oc tober 2012, the petitioner made an enquiry in the setup of respond ents no.1 and 2. The petitioner was given to understand that though a decision in principle was already taken by the respondent No.1 to is sue a notification of the aforesaid nature for current academic year for the faculty of engineering and pharmacy at the level of post graduation, it was not possible to implement the same by issuing a formal notification due to the introduction of code of conduct on ac count of ensuing assembly elections. The petitioner was informed that the process is already undertaken by respondent no.1 with the office of respondent no.3 for issuance of the said notification, but it would not be possible to issue the said notification as respondent no.3 has taken a decision not to accord permission for the same till the new government is formed.
3.0 It is under the aforesaid circumstances the present petition has been filed at the instance of the present petitioner.
4.0 Mr. Dave, learned Senior Advocate with Mr. Jigar Patel, learned advocate appearing for the petitioner contended that so far as the post graduation course in the faculty of pharmacy and engin eering is concerned, the notification is normally issued in the middle of October of the concerned academic year. Similar notifications were issued by respondent No.1 for the faculty of engineering at the level of graduation and for the faculty of Management and Computer application at the level of Post Graduation. The State Government has already decided for Engineering and Bachelor of Pharmacy to adopt the same notification which was published on 18.10.2012 and has already decided to publish the same. The proposal was forwar ded on 29.09.2012 to the State Government, Education Department and the Department of Education prepared a Draft Notification and sent it to the Legislative and Parliamentary Department and the same was sent back to Education Department on 08.10.2012 saying that with the announcement of Elections on 03.10.2012, the Model Code of Conduct came into operation and the files were referred to the Office of the respondent No.3. The respondent No.3 based on the Model Code of Conduct which has come into operation with ef fect from 03.10.2012 restricted and deferred the decision till 20.12.2012. Therefore, Mr. Dave, learned Senior Advocate for the petitioner contended that decision which has already been taken by the State Government has been prohibited by the respondent No.3. Therefore, it may be directed to grant sanction in view of the fact that this decision is not going to affect in any manner to the Elections which are declared since this is question of education.
4.1 Mr. Dave, learned Senior Advocate further submitted that in view of decision of the Honb'le Supreme Court in case of State of H.P and others versus Himachal Institute of Engineering and Technology, Shimla reported in (1998) 8 Supreme Court Cases 501 and in case of Ram Dulari Bai and another versus Madanlal Bajaj reported in (1998) 8 Supreme Court Cases 504, the State Government has adopted the practice of amending the appropriate Rules.
4.2 Mr. Dave, learned Senior Advocate for the petitioner further contended that the stand taken by the respondent No.3 may be re quired to be modified and the respondents may be directed to pub lish the draft rules which were proposed by the State Government through the Education Department and may be directed to be pub lished.
5.0 Mr. Soni, learned Assistant Government Pleader for respond ents No. 1 and 2 contended that the State Government has made their stand very clear but because of the Model Code of Conduct , it will not be appropriate for the said respondents to impress upon the respondent no.3 and they will abide by the decision of this Court.
6.0 Mr. Kavina, learned Senior Advocate with Mr. Vaishnav, learned advocate appearing for respondent No.3 raised preliminary objection stating that the writ itself is not maintainable for directing Executive or Legislature to amend the Rules in view of decision of the Hon'ble Supreme Court in case of Municipal Committee, Patiala Vs. Mod el Town Residents Assn. And others reported in 2007 (8) Supreme Court Cases 669 wherein in para 20 it is held as under:
“20. Before concluding, we have serious objections to the manner in which direction has been given by the Division Bench of the High Court to the Legislature. In this connection, we quote the last para graph of the impugned judgment, which is as follows:
" Sections 3(1)(b) and 3(8aa) of the Act are declared unconstitution al and struck down. The State shall be free to suitably amend Sec tion 3(1) to provide for levy of house tax by adopting a uniform cri teria for determination of annual value of similarly situated properties. The State shall also be free to amend Section 3(1) and lay down a uni form criteria for determination of annual value of properties occu pied by the tenants as well as the owners in the light of the judg ment of the Supreme Court in Sachidanand Kishore Prasad Sinha's case [(1995)3 SCC 86] and observations made in this order. It is, however, made clear that any such enactment shall not effect the assessments made prior to the amendment of section 3 by Punjab Act No. 11 of 1994 and the old cases, if any pending shall be de cided in accordance with the unamended provision" (emphasis sup plied) In the above judgment, the High Court directs the State Legislature to amend the law relating to determination of annual value by classi fying that any such amendment shall not be retrospective. We have serious reservations regarding such a direction. It is not open to the High Court under Article 226 of the Constitution, particularly in the matter of taxation directing it not to amend the law retrospectively. Such a direction is unsustainable, particularly in a taxing statute. It is always open to the State Legislature, particularly in tax matters, to enact validation laws which apply retrospectively. The High Court cannot take away the power of the State Legislature to amend the tax law retrospectively. The basis of the law can always be altered retrospectively.”
6.1 Mr. Kavina, learned Senior Advocate further placed reliance on the decision of the Hon'ble Supreme Court in case of State of Uttar Pradesh and others versus Mahindra and Mahindra Limited re ported in (2011) 13 Supreme Court Cases 77 wherein in paras 10 and 13 it is held as under:
“10. . Within our Constitution, we have specifically demarcated the ambit of power and the boundaries of the three organs of the Society by laying down the principles of separation of powers, which is being adhered to for carrying out democratic functioning of the country. So far as the legislation is con cerned, the exclusive domain is with the legislature. Subordin ate legislations are framed by the executive by exercising the delegated power conferred by the Statue, which Is rule making power. The judiciary has been vested with the power to inter pret the aforesaid legislations and to give effect to them since the parameters of the jurisdiction of both the organs are ear marked. Therefore, it is always appropriate for each of the or gans to function within its domain. It is inappropriate for the courts to issue a mandate to legislate an Act and also to make a subordinate legislation in a particular manner. In this particu lar case, the High Court has directed the subordinate legisla tion to substitute wordings in a particular manner, thereby as suming to itself the role of a supervisory authority, which ac cording to us, not a power vested in the High Court.
13. Considering these facts and circumstances from the afore said angle, we after setting aside the order passed by the High Court and also by the Tribunal as also by the First Appel late Court, remit back the matter to the First Appellate Court to consider the matter de novo taking into consideration the noti fication as existing and which was issued on 12th September, 1986, and decided the matter without making any addition/al ternation thereto.”
6.2 Mr. Kavina, learned Senior Advocate further contended that in view of the above decisions it will not be appropriate to entertain the writ petition. He submitted that by way of principle the Election Com mission has deferred the permission as such permission may preju dicially affect or influence the election proceedings. It is settled law that even mere apprehension is sufficient for putting such restric tion. He therefore submitted that the decision taken by the respond ent No.3 is within the limits of law and therefore this Court may not interfere in the present petition.
7.0 I have heard learned advocates for the respective parties and perused the documents on record.
7.1 The crux of the matter is whether draft notification which was sanctioned by the State Government can be restricted under the guise of model code of conduct which has come into operation with effect from on 03.10.2012 or not. In this regard it is required to be noted that for the current academic year the ACPC moved a propos al on 29.09.2012 whereby admissions by extending relaxation was to be accorded on 644 seats of the Engineering discipline and 2494 of the Pharmacy discipline. The Commissioner of Higher Education for warded the proposal on 29.9.2012 to the Government in its Educa tion Department. The Department of Education prepared a Draft No tification and sent it to the Legislative and Parliamentary Depart ment. However, the same was sent back to the Education Depart ment on 8.10.2012 saying that with the announcement of assembly elections the Model Code of Conduct came into operation with effect from 03.10.2012 and therefore the files were referred to the Office of the Chief Electoral officer. Therefore the question is whether this Court can direct to implement the proposal sent on 29.09.2012 in re spect of which a Draft Notification is prepared.
7.2 The contention of the respondent no.3 is that this Court cannot direct the Executive or Legislature to amend the Rules or to enact any rules. In the present case this Court is not required to issue any direction with regard to amending the rules or enacting any rules. The proposals are already sent and the draft notification is also ready. The State Government has already accorded sanction. The matter was already initiated and only final notification remains to be issued. In the present case there is no enactment of any new law or to make any rule. This Court in the present case, looking to the nature of the prayer, is not required to direct any subordinate legis lation in any manner whatsoever. The only direction which is neces sary in the present petition is for issuance of final notification as even the draft notification has been issued. This Court is of the opinion that such direction cannot be said to be in the role of a supervisory authority or not a power vested in this Court. Therefore there are no merits in the contentions raised by Mr. Kavina.
8.0 Now there is another question is required to be answered.
Whether the apprehension raised on behalf of the respondent no.3 is genuine and reasonable one or not. At this stage it is required to be noted that necessary notices have already been issued and the de cision has already been taken to complete the admission process on vacant seats. If the final notification is published the process is com plete. There are 644 seats of Engineering discipline and 2494 of Pharmacy discipline. Normally the admission process in every aca demic year is undertaken in the month of October. Therefore, nothing unusual has taken place. If the Code of Conduct has not come into operation, the final notification would have been published. It is also apparent that even if the Code of Conduct would have come at a later stage, then also the process would have been completed. It is clear that every year the State of Gujarat, through Education Depart ment, issues notification in respect of graduation and postgradu ation courses, whereby those candidates, who have not appeared of cleared in Common Entrance Test are considered eligible. Therefore the relaxation is not being granted as a special case and only in the present year. Every year it is being done. Therefore the apprehen sion raised on behalf of the respondent authority has no merits at all. Merely granting permission to prosecute studies cannot be said to be a factor influencing voters.
8.1 It is also an important fact that every academic year is very valuable to a student. The students have a right to prosecute their studies, as per the academic term. Merely because of the Code of Conduct, the valuable time of the students are curtailed which will seriously affect the future of many students. No law would prohibit prosecuting studies of students thereby spoiling their valuable time. It is not pointed out that all the students are voters and they all are from Gujarat and if the notification is issued it may prejudicially influ ence the voters.
9.0 Having considered the matter in depth, I am of the view that the respondent could not establish their say that publication of noti fication may amount influencing voters in any manner whatsoever. The process has already been commenced even before the Code of Conduct came into force with effect from 3.10.2012. In any case, the substantial part of the process was completed even before the Code of conduct came into effect and only the final notification was pending. It cannot therefore be said that publication of the notifica tion is going to affect the election on any ground. Respondent nos.1 and 2 have already taken the decision and it is only at the execution stage. In view of these facts and also in view of the fact that the de cision of respondent no.3 may put the future of many students at stake and having failed to show that mere publication of notification would influence the voters, this Court is of the opinion that the de cision of the respondent authority is bad in law.
9.1 At this stage it would be advantageous to refer to a decision of this Court passed in Misc. Civil Application No.53 of 2004 dated 08.03.2004 wherein in paragraph 4 it is held as under:
“4. In view of the directions of the High Court, the appre hension of the Department about the Moral Code of Con duct prevalent during election days has no basis and the Department is expected to act as per the directions of the Court, which have not been challenged before any higher forum, nor do they stand stayed by any operation of law during the election days, or on the basis of the Moral Code of Conduct. No Moral Code of Conduct can be con strued so as to violate the directions issued by the High Court. The Department is, therefore, given further time of two months to comply with the directions and complete the process.”
10.0 In the premises aforesaid, the petition deserves to be allowed.
Accordingly the decision of the respondent no.3 is hereby quashed and set aside. It will be open to the State Government to publish the draft notification dated 29.09.2012 within a period of one week from the date of the order of this Court. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(K.S. JHAVERI, J.) niru*