(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By way of this petition under Article 226 of the Constitution, a student studying in the first semester course of Automobile Engineering has preferred this petition by and through his grandfather Shri Vinodrai Vithaldas Ahmedabadi praying for the following reliefs :-
(A) direct the respondent nos.1 and 2 to give admission and/or to allow reshuffling to the petitioner's grandson Shubham Mahendrabhai Patel - the student from Shri N. M. Gopani Polytechnic, Ranpur to Sir Bhavsinhji Polytechnic Institute, Vidyanagar, Bhavnagar in the Second semester of Diploma Course of Automobile Engineering.
(B) provide for the costs of this petition / SCA.
(C) grant such other and further reliefs as this Hon'ble Court deems fit and proper in the facts and circumstances of the case.
2. The case of the petitioner as setup in the petition may be noted as below.
3. The petitioner is the grandfather and the guardian of Shubham Mahendrabhai Patel. The petitioner is a retired Central Government Pensioner. The petitioner's grandson cleared his 10th Standard examination in July 2009 and, thereafter, applied for admission in Engineering Diploma Course. As per the merit list prepared by the respondent No.2, Shubham was placed at Merit No.88558. Shubham got admission in Automobile Engineering as per his choice of stream but in Self Finance college / institution named Shri N. M. Gopani Institute, Ranpur.
4. As per the guidelines issued for the admission, the admission process is by way of online registration. The students have to apply for registration online through Cyber Space Centre i.e. Centre where Internet Facility is provided free of cost to the candidates. The participating institutes and Help Centre provides all assistance to the candidates like counseling, registration, choice selection, reporting etc. relating to admission process.
5. Shubham applied in round three of reshuffling on 22.08.2010 through Help Centre at Sir B.P.T.I., Bhavnagar i.e. Bhavnagar Polytechnic Institute, Bhavnagar. Signature of student was obtained in the register by the authority of Sir B.P.T.I., Bhavnagar. The work of filling up choice is being done by the students studying in Sir B.P.T.I. and I.T.I. Bhavnagar by operating the computers. Shubham's pin number was not entered in time and, therefore, the choice of the student remained "unlock".
6. The case of the petitioner is that for the mistake committed at the Help Centre, Shubham was unable to get admission at the institute of his choice in the round of reshuffling and was, therefore, compelled to take admission in a Self Finance College.
7. It is also the case of the petitioner that the student is also entitled to get benefit of supernumerary seats in Sir B.P.T.I., Bhavnagar. As per the admission rules, more particularly Rule 9, Clause (2), Sub-Clause (ii), Shubham falls in the category of Economically Backward Class, as the annual income of the parents of Shubham does not exceed Rs.2.5 Lakhs. The petitioner as a grandfather is the only earning member in the family consisting of his wife, son, daughter-in-law and three children including the student. The father of Shubham is not earning past almost two years as the place where he was employed is now closed. According to the petitioner, considering the economic condition of Shubham, he falls under the category of Economically Backward Class and, therefore, he was entitled to get the benefit of supernumerary seat allotted to Sir B.P.T.I., Bhavnagar.
8. It is the say of the petitioner that the case of his grandchild Shubham deserves sympathetic consideration. If the case is considered on technicalities even then Shubham is eligible to get admission in Sir B.P.T.I., Bhavnagar as one seat at the said institute is vacant.
9. It is also the case of the petitioner that before approaching this Court, the petitioner had preferred written representation dated 23.12.2010 addressed to the respondent No.1 furnishing all the details of the student including the financial condition. However, in reply, the petitioner was informed by the respondent No.2 that the choices filled up by the students were locked. The petitioner was also informed that even otherwise, Shubham is not entitled to get admission at Sir B.P.T.I., Bhavnagar as his Merit No.88558 is far down the line from the last admitted student on merit. However, the petitioner learnt that the students placed below 88558 have received admission letter from Government Polytechnic. According to the petitioner, Shubham is studying in Automobile Engineering stream but in a Self Finance College where expenses are very high so far as the tuition fees, hostel facilities etc. are concerned. It is the case of the petitioner that the college is at Ranpur which is situated at a far of distance from the place of residence of Shubham. It has been therefore urged by the petitioner that if Shubham is admitted in Sir B.P.T.I., Bhavnagar where otherwise, one seat is vacant, no hardship or prejudice is going to be caused to the institute and same will not be in violation of the statutory rules or regulations.
10. The petition has been opposed by the respondent Nos.2 and 3 by filing their respective affidavit-in-reply.
11. So far as the respondent No.2 is concerned, the stand taken in the affidavit-in-reply is as under :-
The admissions to the Diploma in engineering courses are conducting by Admission Committee for Professional Diploma Course herein after referred to as ACPDC.
The admission which the petitioner seeks to secure is to be filled in on the basis of the online registration. Wherein, he has clearly stated that he has seeking admission in the General Category. For those students who seek Tuition Fee Waiver they are required to enter the said detail in the registration form and to submit supporting documents for the same. The petitioner form does not refer to any tuition fees waiver. The petitioner is seeking admission at Sir Bhavsinhji Polytechnic Institute, Vidyanagar, Bhavnagar. The petitioner contending that one seat has been vacant and person below his merits consider the said seat in the second semester. A copy of the online registration form filled up by the students is annexed hereto and marked as Annexure-I.
I say and submit that for the admission to the Diploma engineering are from two sources (1) i.e. those who have passed 10std examinations and (2) those who have passed certificate course from the Technical Examination Board, Gujarat State. Those students who have passed 10std examinations are given numbers from 1 to 1 lacs and those students who have passed certificate course conducted by the TEB i.e. Technical Examination Board are given numbering from 2 lacs onwards. The two categories are totally different in so far as the petitioner is concern for admission in the open category in all branches in all institute government and all institutions including the SFI closed at 72397. After admitting the students till the merit no and after having completed 3 round of online admission those students who were not consider in his order of merit were informed that they may seek admission where whatsoever available in those vacant seat in the self finance institute if the same are available. Parallely the institutions were also informed that those seats having vacant after having carrying out 3 round admission form would be filled up by the said institutions in the order of merit. The petitioner got admission at the Shri N M Gopani Polytechnic Ranpur having secure admission whereas he has not entitled to admission at the Bhavsinhji Polytechnic Institute, Vidyanagar, Bhavnagar since in the order of the merits admission in Bhavsinhji Polytechnic Institute, Vidhyanagar, Bhavnagar concluded at merit no. 33633 in the morning shift and 35043 in the evening shift the petitioner is refer one Alpeshbhai Thakarsinhbhai and Chauhan Himanshu who are possessing granting to the petitioner merit no. 200348 and 200354. I say and submit that 200348 and 200354 does not reflect the merit of the students who passed 10std and separate category of those students possess certificate from the Technical Examination Board. The said category is different category basis on merits and those who possess certificate from Technical Examination Board is very different.
I say and submit that when the misapprehension which the petitioner is carrying with regard to his having "not locked" his choice is incorrect. The present deponent craves leaves to demonstrate the same during the course of hearing the manner in which the compute system function the procedure prescribed for locking of student choice is in order to ensure that there is no tempering at end. In any case, the National Informatic Center, New Delhi automatically at 11.55 p.m. on the last day of Choice filling automatically locked out made by the student. Therefore, whether the petitioner has the lock and/or has failed to lock choice. In any event the petitioner did not lock his choice as the petitioner would demonstrate relied on Annexure B and in any event the petitioner is in the order of merit is behind other students for entitle to consider to the merits prayed in the captioned petition and this Hon'ble Court be pleased to dismiss the present petition.
5. In view of the what is submitted herein above and considering the facts the present petition deserves to be dismissed in line.
12. So far as the respondent No.3 is concerned, the stand taken in the affidavit-in-reply is as under :-
"5. That the Admission Committee for Professional Diploma Courses has nominated Sir Bhavsinhji Polytechnic Institute, Bhavnagar as Help Centre to facilitate the students intending to take admission to Diploma Courses in Technical Education. Sir Bhavsinhji Polytechnic Institute, Bhavnagar is working as HELP CENTRE only and is not empowered to grant any admission to Diploma Courses as all the procedures and formalities for grant of admissions are carried out ON LINE by the Admission Committee for Professional Diploma Courses at Ahmedabad strictly on the basis of merit and the preferences of candidate under the frame of admission rules prevailing from time to time.
6. In reply to para 1, 2, 3.1 and 3.2 of the petition, I say that the works of granting admissions to Diploma Courses and filling of vacant seats is carried out ON LINE by the Admission Committee for Professional Diploma courses, Ahmedabad and as this Institute simply works as HELP CENTRE to guide and assist the students, no remarks are given.
7. In reply to para 3.3 and 3.4 of the petition, I say that as HELP CENTRE to facilitate the students intending to get admission to Diploma Courses, the Institute provides facilities of counselling, registration, collection of documents, choice filling by the students, reporting etc. admission procedures on behalf of the Admission Committee for Professional Diploma Courses. It is not true that the choice filling work for admission to Diploma courses in Help Centre was carried out by students studying in BPTI & ITI, Bhavnagar. Further, I say that the Help Centre facilitates the students intending to take admission to Diploma Course in choice filling work and the said work is to be performed by the concerned student only as the registration and choice filling are protected by the password and PIN. The staff working at Help Centre do not intervene in the said work, which can be seen from the copy of 'Annexure B' produced by the petitioner. Further, in the On Line choice filling format, a button at the bottom of choice filling provides for locking the choice and the student after filling or amending all the choices can click the said button to activate the LOCK. However, I say that even if the LOCK button is not clicked by the student concerned, the choices of all the students who have filled or amended their choices, becomes automatically LOCKED at the end of choice filling programme. I say that the contention raised by the petitioner is misleading, because the meaning of UNLOCK displayed on the screen is that the LOCK button has been activated and if the student still intends to amend his choices already made before the choice filling programme ends. Accordingly, the Help Centre has not committed any error as the Locking or Unlocking of choices was performed by the student himself.
8. In reply to para 3.5, 3.6, 3.7 and 3.8 of the petition, I say that the work of granting admission on any seat - regular or supernumerary - allotted at this Institute is carried out by the Admission Committee for Professional Diploma Courses, Ahmedabad, purely on the basis of merit and preferences of the candidate under the framework of admission rules and regulations from time to time and not on sympathetic basis, therefore, no comments are given on the said issue. Further, after completion of respective round of admissions was over, the Institute reported the information of vacant seats in different Diploma Courses at Sir Bhavsinhji Polytechnic Institute, Bhavnagar. The admission t o such vacant seats again was required to be granted by the Admission Committee for Professional Diploma Courses, Ahmedabad. Other issues raised in said paras are related to respondent No.2, hence no remarks are given.
[7] In reply to para 4.1 and 4.2 of the petition, I say that as stated in earlier paragraphs, the admission to Diploma Courses in all rounds is granted ON LINE by the Admission Committee for Professional Diploma Courses, Ahmedabd purely on merit basis, therefore, the respondent No.3 does not have to offer any remarks. It is not true that the petitioner's choice of college was not filled in as the PIN Number was not entered in prescribed time by the HELP Centre of this Institute as a result of which the choice of student remained UNLOCK and the student's choice was not considered and the student had to secure admission in Self Finance College. As stated in para 5 hereinabove, the work of choice filling by students intending to take admission to Diploma Courses is to be performed by the concerned student only as the registration and choice filling are protected by the password and PIN. The staff working at Help Centre do not intervene in the said work. Further, as stated in para 5, in the On Line choice filling format, a button at the bottom of choice filling provides for locking the choice and the student after filling or amending all the choices can click the said button to activate the LOCK. However, I say that even if the LOCK is not activated by the student concerned, the choices of all the students who have filled or amended their choices, becomes automatically LOCKED at the end of choice filling programme. Hence, it is not true that as the choice of student remained UNLOCK, the choice was not considered.
[8] In reply to Para 7 [A], [B], [C], I say that as the admissions to Diploma Courses is carried out by the Admission Committee for Professional Diploma Courses, Ahmedabad purely on merit basis, Respondent No.3 does not have to offer any remarks.
14. Having gone through the affidavit-in-reply of the respondent Nos.2 and 3, it appears that for the purpose of securing admission in Diploma Courses, the State Government has constituted an Admission Committee and the Admission Committee has nominated Sir B.P.T.I., Bhavnagar as one of the Help Centres to facilitate the students intending to take admission to Diploma Courses in Technical Education. It is also clear that the registration is online. Sir B.P.T.I., Bhavnagar works only as a Help Centre and is otherwise not empowered to grant any admission to Diploma Courses as other procedures and formalities for grant of admissions are carried out online by Admission Committee for Professional Diploma Courses at Ahmedabad strictly on the basis of the merit. It appears that there is a particular system in operation so far as the procedure of admission is concerned and more particularly when the choice of the particular institute has to be given by the student. We have noticed that in the online choices filling format a button at the bottom of choice filling is provided for locking the choices and the student after filling or amending the choices can click the said button to activate the lock. Even if the lock button is not clicked by a student the choices of all the students who have filled or amended their choices automatically gets locked at the end of choices filling program. In the present case, it appears from the stand of the respondent Nos.2 and 3 that it is not that petitioner's choice of college was not filled in as the pin number was not entered in the prescribed time by the Help Center of the institute as asserted by the petitioner, as a result of which the choice of Shubham remained unlocked and Shubham's choice was not considered and ultimately had to secure admission in a Self Finance College. This exercise has to be undertaken by the student himself intending to secure admission in any of the Diploma Courses. It appears that Shubham was unable to operate properly resulting in an error. It is also very clear that in online choice filling format, a button has been provided at the bottom of the choice filling for locking the choice and the students after filling or amending the choices can click the said button to activate the lock. Now, at this stage, whatever choices must have been given by Shubham would have otherwise also got locked without activating the said lock, automatically at the end of the choice filling program. Therefore, it appears that there was some error committed by Shubham himself in operating online system for which respondent No.3 cannot be held liable. Even otherwise, this aspect would be a highly disputed question of fact.
15. Though we have all sympathy for the student, having regard to the circumstances but sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto student has miserably failed to establish a legal right.
16. It is further trite that despite an extraordinary constitutional jurisdiction contained under Article 226 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a policy more particularly in matters of admission to colleges. While construing a policy in educational institutions where a procedure has been prescribed "sympathy" has no role to play.
17. As early as in 1911, Farwell, LJ. In Latham v. Richard Johnson and Nephew Ltd observed (All ER p.123 E).
"We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment sentiment is a dangerous will O' the wisp to take as a guide in the search for legal principles."
18. It is now also well settled that in absence of any legal right, the Court should not issue a writ or in the nature of mandates on the basis of the sympathy.
19. We may also look into some decisions of the Supreme Court in this regard in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth reported in (1984) 4 SCC 27, the Supreme Court observed thus:-
"29.... the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them."
20. In All India Council for Technical Education v. Surinder Kumar Dhawan, reported in (2009) 11 SCC 726, the Supreme Court held in paragraphs No.16 and 17 as under:-
16. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education.
17. The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in.
21. The Supreme Court has repeatedly held that the courts are not concerned with the practicality or or wisdom of the policies but only illegality. In Directorate of Film Festivals v. Gaurav Ashwin Jain reported in (2007) 4 SCC 737, the Supreme Court held in paragraph No.16 as under :-
16....Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.
22. In very recent pronouncement of the Supreme Court in the case of Sanchit Bansal and another Vs. Joint Admission Board and others, reported in (2012) 1 SCC 157, the Supreme Court held in paragraphs No.27 and 28 as under :-
"27. Thus, the process of evaluation, the process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialised courses, are all technical matters in academic field and the courts will not interfere in such processes. The courts will interfere only if they find all or any of the following: (I) violation of any enactment, statutory rules and regulations; (ii) mala fies or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone; or where the procedure adopted is arbitrary and capricious.
28. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non-discriminatory, it cannot be described as arbitrary or capricious or mala fide.
23. For the foregoing reasons, we are unable to help the student in any manner. In the result, this petition fails and is accordingly rejected. However, there shall be no order as to costs.
[ A. L. DAVE, .J. ] [ J. B. PARDIWALA, J. ] vijay Top