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The Indian Universities (Repeal) Bill, 2001
Article 89 in The Constitution Of India 1949
Shripad Shivram Kulkarni vs State Of Maharashtra on 31 July, 1980
Rajendra Prasad Mathur Etc vs Karnataka University & Anr on 1 May, 1986
D. N. Chanchala vs State Of Mysore And Ors. Etc.(With ... on 3 May, 1971

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Bombay High Court
Swati R. Khinvasara vs State Of Maharashtra on 8 August, 2011
Bench: A.M. Khanwilkar, R.Y. Ganoo

1 143011

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICITON

WRIT PETITION NO.1430 OF 2011

Swati R. Khinvasara

age 19, Indian Inhabitant presently

residing at C/o. 7/83, Madhu Mahal

Bhrahman Wada Road, King Circle

Mumbai-400018 ... Petitioner

V/s.

1. State of Maharashtra

through The Higher Technical

Education

Department, Mantralaya

Mumbai-400032

2. Government Law College

A Road, Churchgate

Mumbai-400020

3. Mumbai University

M.G. Road, Mumbai-400001

4. Mashura Shirish Pitre

age 18 years, Occ.Student, residing

at 201,

Awar Tower, Bhaskar Colony,

Naupada,

Thane (W) - 400602

5. Yati Sharma,

residing at House No.1848

Sector 8, Faridabad, Haryana

6. Sameer Bindra

aged 18 years, residing at 22,

Greenwood City

Sector 40, Gurgaon, Haryana

2 143011

7. Aashna Kothari

aged 18 years, residing at 13, Blue

Gardenia, .... Respondents 4th floor, Peddar Road, Mumbai-26

a/w

CHAMBER SUMMONS NO.201 OF 2011

IN

WRIT PETITION NO.1430 OF 2011

1. State of Maharashtra

through The Higher Technical

Education

Department, Mantralaya

Mumbai-400032

2. Government Law College

A Road, Churchgate

Mumbai-400020

3. Mumbai University

M.G. Road, Mumbai-400001 ... Respondents

AND

Madhura Shirish Pitre

aged 18 years, Occ.: Student

r/at: 201, Amar tower, Bhaskar

Colony ... Intervenor/Applicant Naupada, Thane (W) 400602

a/w

CHAMBER SUMMONS NO.205 OF 2011

IN

WRIT PETITION NO.1430 OF 2011

3 143011

Swati R. Khinvasara

age 19, Indian Inhabitant presently

residing at C/o. 7/83, Madhu Mahal

Bhrahman Wada Road, King Circle

Mumbai-400018 ... Petitioner Versus

1. State of Maharashtra

through The Higher Technical

Education

Department, Mantralaya

Mumbai-400032

2. Government Law College

A Road, Churchgate

Mumbai-400020

3. Mumbai University

M.G. Road, Mumbai-400001 ... Respondents

AND

1. Yati Sharma

aged 17 years, r/at House No.1848,

Sector 8, Faridabad, Haryana ... Applicant 1

2. Sameer Bindra

aged 18 years, r/at 22, Greenwood

City, Sector 40, Gurgaon, Haryana ... Applicant 1

a/w

CHAMBER SUMMONS NO.206 OF 2011

IN

WRIT PETITION NO.1430 OF 2011

Swati R. Khinvasara

age 19, Indian Inhabitant presently

residing at C/o. 7/83, Madhu Mahal

Bhrahman Wada Road, King Circle

Mumbai-400018 ... Petitioner Versus

4 143011

1. State of Maharashtra

through The Higher Technical

Education

Department, Mantralaya

Mumbai-400032

2. Government Law College

A Road, Churchgate

Mumbai-400020

3. Mumbai University

M.G. Road, Mumbai-400001 ... Respondents

AND

1. Aashna Kothari

aged 18 years, r/at 13/Blue

Gardenia, 4th floor ... Applicant Peddar Road, Mumbai-400026

a/w

CHAMBER SUMMONS NO.207 OF 2011

IN

WRIT PETITION NO.1430 OF 2011

Swati R. Khinvasara

age 19, Indian Inhabitant presently

residing at C/o. 7/83, Madhu Mahal

Bhrahman Wada Road, King Circle

Mumbai-400018 ... Petitioner Versus

1. State of Maharashtra

through The Higher Technical

Education

Department, Mantralaya

Mumbai-400032

2. Government Law College

A Road, Churchgate

Mumbai-400020

5 143011

3. Mumbai University

M.G. Road, Mumbai-400001 ... Respondents

AND

1. Anu Dayal

being the mother of the minor,

Tushnika Dayal

r/at 315-C, S.M. Building, 1st floor, ... Applicant 1 Office NO.24/25, New Charni

Road, Mumbai - 1

2. Gautam Shah

being the father of the minor Ketaki

Shah

r/at A306, Capri, Hiranandani ... Applicant 2 Estate, Godbandar Road, Thane

(W) - 400607

AND

WRIT PETITION (L) NO.1459 OF 2011

1. Neha Balram Bhatt

18 yrs, 122/F, Gr.fl., Bang Bhavan,

Road No.5, Hindu Colony, Dadar,

Mumbai-14

2. Akshata Milind Limaye

through Milind G. Limaye, aged 50,

D/2,36, Shereeji Towers CHS,

Anand Park, Near Shrirang So.,

Thane W 400 601

3. Anushree Aditi

through Rachitta Priyanka Sinha

Shanuaratank, Kilburn Colony,

Hinoo Ranchi 834 002

4 Nirali C. Shah,

18 yrs, 6/60, Tardev Apts., 249,

Tardeo Road, Near Bhatia Hospital,

Mumbai 4

5. Meenakshi H. More,

18 yrs, 309/43, Charkop, Kandivli

W,

Mumbai 67

6 143011

6. Pratima Pradeep Pawar,

17 yrs, through Kavita Sanjay

Pradhan, aged 39 yrs, r/at 604/A

Wing, Vaishali CHS, near Kurla

Sig. Kurla E, Chembur, Mumbai 71

7. Anu C. Kaladharan,

18 yrs., I-B, Bldg., 11/256, RCF

Colony Chembur, Mumbai - 74

8. Arpita Maheshwari,

18 yrs., 5, Jawahar Nagar Colony,

Bypass Road, Agra 2, Uttar Pradesh

at present in Mumbai

9. Sukriti Sarwan,

18 yrs., Flat NO.1006, Pinewood,

Raheja Willows, Akurli Road,

Kandivli, Mumbai

10. Himali Divekar,

Prince Paradise Society, Panvel

11. Niyati Mahimtura,

18 years, 70, Parshwa, 91, Inderjeet

Rod., Banganga, Walkeshwar,

Mumbai 400006

12. Niyati Vakil,

18 yrs., Shanti Sadan, 3, Vacha

Gandhi Rd., Mumbai 7

13. Ajinkya Walujkar,

20 yrs., r/at.A-1/23

green Fields, Goregaon E, Mumbai

14. Apoorva R. Yadav,

18 yrs., r/at D-55, Sec.12,

Kharghar, Navi Mumbai 410210

15. Shalaka T. Waghmare

18yrs., Bl.No.2, Sapan Apt.

Wankhede Garden, Belavali,

Badlapur W

16. Ankita Misra, 18 yrs.,

MSUW, Dr.Leela Melville Rod.,

Bombay Central - 8

17. Saloni Ajmera,

18 yrs., 162/1, Krishna Niketan,

Opp.Gandhi Market,

7 143011

18. Surabhi Sharan,

18 yrs, 140/7, Jaswanti Niwas, Jain

Soc., Nos.20 & 21, Sion West,

Mumbai-22

19. Manika Jain,

18 yrs., r/at. Opp.Navjivan Soc.,

Grant Road, Mumbai

20. Leonard Kayongo,

aged 32 yrs., r/at C-7, 12, Phase I,

Bhayander E., Thane 401105

21. Shraddha S. Chavan,

18 yrs., r/at.11-A/5, Geetanjali

Nagar, J.M. Road, Mahim East,

Mumbai 400017

22. Sulekha Agarwal,

18 yrs., r/at 1st floor, 7, Vachha

Gandhi Rd., Gamdevi, Mumbai 7

23. Srijanee Bhattacharjee,

18 yrs., r/at.M.S.U.W. Hostel, Dr.

Leelamelville Road, Mumbai

Central 400008

24. Meherzeen M. Avasia,

17 yrs., through Khurshid M.

Avasia, E/32, Sir Byculla,

Mumbai-400027

25. Geet Sawhney,

18 yrs.,850, PRT,GH-13, Paschim

Vihar, Delhi 110087 at present in

Mumbai

26. Priya Nigwekar,

17 yrs., through Ramchandra S.

Nigwekar, r/a 5/16/7, Sneh Sagar

Apt., Sec.17, Airoli, Navi

Mumbai-400 708

27. Divya Mathews,

18 years, r/a. A-4, Lourdes Villa,

St.Rius `E', CHS, Mulund (W),

M-80

28. Shikar Nath Rastogi,

18 yrs., r/a.1:4, C 48, Diamond

Co.Op. So. Sector 29, Vashi

8 143011

29. Anjana Telang,

18 yrs., r/a. E-15, Shanti So.Mogul

Lane, Mahim, Mumbai-18

30. Ashwini Mahade,

17 yrs., through Suresh Shankar

Mahade, r/a.7,N.S. Patkar Marg,

Kemps Corner, 4th fl., Mumbai-36

31. Prakriti Bushan

aged 17 yrs., through Sandeep

Sarin, r/a 18/5, Navjivan Society,

Mahim West, Mumbai

32. Nikita Pais,

17yrs., through Emie Pais r/a.

F2/0.1, Noopur Co.op. Hsg. Soc.,

Sector 22

33. Shantanu Garg, 17 yrs., through

Hajar K.Dohling, 71, Seth Basantlal

Marg, Ambikapur-497001,

Chattisgarh, at present in Mumbai

34. Anagha G. Lokhande

17 yrs., through Govind A.

Lokhande, r/a.31, Tower 4, Godrej

Garden Enclave, Phirojshah Nagar,

Vikhroli E, Mumbai-79

35. Rasika V. Soparkar, 17 yrs, through Vijay Soparkar, Tehmi Terrace, A

Wing, 6th floor, 805, Dr.B.A. Road,

Dadar, Mumbai-14

36. Shreyes Aggarwal, 18 yrs., B-102,

G.D. Ambedkar Marg, Opp.Shriram

Indl. Est., Wadala, Mumbai-31

37. Gaurav Dasgupta,

18 yrs., S.L. Vilas, Dariya Nagar

House, Marine Lines, 400 020

38. Tanvi Gupta

18 yrs., Mahavir Jain Hostel, C.P.

Tank, Charni Road, Mumbai-4

39. Monalisha Harsh, 16 yrs.,

40. Riya Seth, 17 yrs., Nos.30 and 40

through Saurabh Kandhway, 101,

Parijat Co-op. Hsg. Soc., Malad

West, Mumbai-400064

9 143011

41. Asmita Misale, 17 yrs., through

Uttam Misale, r/a 11/187, Reynolds

Road, Tejas Nagar Wadala East,

Mumbai-37

42. Lakshmi Ashwin Hawelikar, 18

yrs., Kharghar, Navi

Mumbai-410201

43. Salnoi More, 18 yrs

1002, Om Residency, near Tata

Hospital, Parel, Mumbai

Petitioner Nos.1 to 29, 30 to 42 and

Students/ Service ... Petitioners

Versus

1. State of Maharashtra

through The Higher Technical

Education

Department, Mantralaya

Mumbai-400032

3. Mumbai University

M.G. Road, Mumbai-400001 ... Respondents

Mr. Mukesh Vashi i/b M/s. M.P. Vashi & Associates for the Petitioner in W.P. No. 1430 of 2011

Ms. Rohini Dandekar i/b M/s. Ayyar & Co. for Petitioner in W.P.(L) No. 1459 of 2011

Mr. S.U. Kamdar, Senior Advocate, with Mr. Bhavik Manek & Ms.Pooja Patil i/by M/s. Wadia Ghandy & Co. for the Applicant in Chamber Summonses No. 205, 206 and 207 of 2011

Mr. M.D. Naik, A.G.P., for Resps. No.1 and 2 in W.P. No. 1430 of 2011

10 143011

Ms. Anjali Helekar, A.G.P., for Resps. No.1 and 2 in W.P.(L) No. 1459/2011

Mr. Rui Rodrigues for Mumbai University

Mr. Mahesh Subramaniam for the Applicant in Chamber Summons No. 201 of 2011

CORAM: A.M. KHANWILKAR &

R.Y. GANOO, JJ.

RESERVED ON: 29-07-2011

PRONOUNCED ON : -08-2011

JUDGMENT (Per A.M. Khanwilkar, J.):-

1) By this common judgment, we propose to dispose of the

above mentioned matters together as the same involve common issues.

2) The first Writ Petition (Writ Petition No.1430 of 2011) is

filed by the student who has passed her 12th Standard examination

(Senior School Certificate 2011) from Central Board of Secondary

Education (CBSE) with 88.4% marks, but has not succeeded in getting

admission in Government Law College at Mumbai (for short,

hereinafter referred to as 'GLC'). The grievance in this petition, as

originally filed, was in respect of the method adopted by respondent-

college of deducting 5% marks of candidates, who have passed the 11 143011

qualifying examination from the Board other than the Maharashtra

Secondary School Board (hereinafter referred to as "the Maharashtra

Board"), for preparation of merit list of students to be admitted in the

First Year of Five years Law course. It is stated that the said petitioner

was desirous of getting admission in the GLC. For that reason, she

obtained a Transfer Certificate and Migration Certificate from her

MGD Girls' School at Jaipur. Thereafter, she filled up the form for

taking admission in Five Years Law Course in GLC. According to the

said Petitioner, in spite of having secured such good marks, her name

did not find place even in the third merit list published on 4th July,

2011. To her utter surprise, she noticed that the candidates who have

secured less percentage than 88.4%, their names were mentioned in the

said list. On enquiry, the petitioner was informed that since she has

passed 12th standard from a Board other than Maharashtra Board, as in

the case of similarly placed candidates, her 5% marks have been

deducted while reckoning her comparative merit position in the merit

list. On further enquiry, the petitioner was informed that the GLC

resorted to such method on the basis of instructions issued by the Joint

Secretary, Higher and Technical Education Department of Government

of Maharashtra vide communication dated 14th June, 2011. The said

communication is originally in Marathi. The petitioner has provided 12 143011

true translation thereof at Exhibit 'D' to the petition. However, the

translation is inaccurate. We would reproduce the original Marathi as

well as official translation of the said communication. The same reads

thus:

"egkjk"V~ 'kklu

dzekad % ladh.kZ

2011@(152@11)@ef'k&1

mPp o ra= f'k{k.k

foHkkx]

ea=ky; foLrkj Hkou]

eqacbZ 400 032

fnukad % 14 tqu]

2011-

izfr]

lapkyd]

mPp f'k{k.k lapkyuky;]

e/;orhZ bekjr] iq.ks-

fo"k; % ikp o"khZ; fo/kh vH;kldzekP;k izos'kkckcr

lanHkZ & izkpk;Z] fo/kh egkfo|ky; ;kaps i= dz-'kkfoe@izos'k@2011@406] fn-4 tqu] 2011-

mijksDr fo"k;kckcrps lanfHkZ; i=kuqlkj dGfo.;kr ;srs dh] 'kkldh; fo/kh egkfo|ky;] eqacbZ ;sFkhhy ikp o"kkZaP;k vH;kldzeke/;s lu 1996 iklwu iz?kkrkuqlkj egkjk"V~ cksMkZkO;frfjDr brj f'k{k.k eaMGkrwu 12 oh ikl >kysY;k fo|kF;kZa uk izos'kklkBh ikp Vdds tknk xq.kkaph e;kZnk Bso.;kr ;sr vkgs- ;klaca/kh fo|kihB dk;n;kuqlkj Lfkkfir egkfo|ky;kaP;k Lfkkfud O;oLFkkiu lferh ;kauh osGksosGh fu.kZ; ?ksoqu R;kpcjkscj lu 2005 e/;s ckj dkSafUly vkWQ baMh;k ;kapk ;kckcrpk vk{ksi fopkjkr ?ksowu ikp o"kkZP;k fo/kh vH;kldzeklkBh ikp VDD;kph e;kZnk Bso.;kpk tk.khoiwoZd fu.kZ; ? 13 143011

ksryk vkgs- rks ?ksr vlrkuk ;ke/;s egkjk"V~ cksMZe/kwu 12 ohph ijh{kk mRrh.kZ >kysY;k fo|kF;kZaP;kckcrhr HksnHkko gksbZy fdaok dk; ;kapkgh mgkiksg dsY;kps dk;Zo`rkar uewn vkgs-

'kklukdMs lknj >kysY;k dkxni=ko#u fnukad 17@4@2006] 13@4@2005 P;k cSBdkae/;s [kkyhy lnL; lgHkkxh vly;kps fnlwu ;srs-

v-dz- fnukad 13@4@2005 ph cSBd fn-17@4@2006 ph cSBd

1- ek-U;k-Mh- vkj- /kkuqdk MkW-fot; dqyd.khZ 2- vWM-pOgk.k izkpk;kZ MkW-jko 3- izk/;kfidk th ,u ijkorh U;k-/kkuqdk 4- izk/;kid eksdy vWM-jfQd nknk (ofj"B fo/khK)

5- izk-jfprk j/kks vWM-jktho pOgk.k 6- ,l th nGoh (DykdZ bupktZ) izk-th-,u- ijkorh

7- izkpk;Z MkW-ih vkj jko izk/;kid eksdy 8- --- izk-jfprk j/kks 9- --- ,l th nGoh

;klaca/kh ekuoh gDd vk;ksxkdMs Jh-lnkorsZ ;kauh ,d rdzkj nk[ky dsysyh gksrh- rFkkfi] ekuoh gDd vk;ksxkpk fnukad 12@2@2011 pk vkns'k igkrk] R;kauh gh O;oLFkk pkyq Bsokoh dk can djkoh ;kckcr vkns'k ok f'kQkjl dsysyh ukgh- ek=] vk;ksxkus ;klaca/kh ;FkkfLFkrh jkT; 'kklu fdaok fo|kihBkdMwu vkns'k izkIr d#u ?;kosr vls lwfpr dsysys vkgs o lnj rdzkj ekuoh gDd vk;ksxkP;k v[kR;kjhr ;sr ulY;kps uewn d#u rh fopkjkr

?ks.;klkj[kh ulY;kps vk;ksxkus uewn dsY;kps fnlrs- egkfo|ky;ke/;s izos'k ns.ks] R;ke/;s Bsoko;kps vkj{k.k] O;oLFkkiu fgLlk] bR;knh ckchaps vkns'k dk<.;kps vf/kdkj fo|kihBkps vkgsr- Eg.kqu fo/kh egkfo|ky;kus gk fo"k; fo|kihBkP;k vf/kdkjkr ;sr vlY;keqGs

fo|kihBkl ;Fkk;ksX; izLrko lknj d#u vkns'k izkIr dj.;kph dk;Zokgh djkoh o rh ckc ekuoh gDd vk;ksxkl dGokoh- njE;ku izpfyr i/nr pkyw jkghy-

lgh

lnkf'ko f'konkl)

lglfpo] egkjk"V~ 'kklu

izr -- izkpk;Z] 'kkldh; fo/kh egkfo|ky;] eqacbZ 14 143011

TRUE TRANSLATION - MARATHI TO ENGLISH

"Government of Maharashtra

Number: Miscellaneous 2011/ 152/11 D/ CE-1 Higher & Technical Education Department, Mantralaya Extension Building

Mumbai - 400 032.

Date : 14 June 2011

To

Director

Directorate of Higher Education

Central Building, Pune

Subject: Regarding admission of Five Years Law Course

Reference: Letter No. GLC/ Admission/

2011/ 406 dated 4th June 2011 of

Principal, Law College.

As per the letter under reference on the abovenoted subject, it is informed that since the year 1996, as per practice, a provision of five percent additional marks limit is made for the students passed 12th (Standard) from Educational Boards other than Maharashtra Boards, for getting admission to five years course in the Government Law College, Mumbai. In this regard, the local Management committee of the College established as per the Universities Act, took a decision, from time to time, and in view of the objection of Bar Council of India in this regard, in the year 2005, took a conscious decision to keep a limit of five per cent, for five years Law Course. While taking the said decision, it was also elaborately discussed on the issue as to whether this would result into discrimination in respect of the students passed 12th Standard examination from Maharashtra Board or else, which has been noted down in the minutes.

From the documents submitted to the Government it appears that following members were participated in the meetings dated 17th April, 2006 and 13th April, 2005. 15 143011

Meeting Meeting dated dated 17/4/2006 13/4/2005

Hon'ble Dr. Vijay Justice D. R. Kulkarni Dhanuka

Adv. Chavan Principal Dr. Rao

Professor G. Hon'ble Justice N. Paravati Dhanuka Professor Adv. Rafiq Mokal Dada, Senior Advocate

Prof. Rachita Adv. Rajiv Radho Chavan S. G. Dalvi, Prof. G. N. Clerk, Paravati Incharge

Prof. Dr. P. Professor R. Rao Mokal ---------------- Prof Rachita Radho

---------------- S. G. Dalvi

In this regard, Shri Sadavarte had lodged one complaint with Human Rights Commission. However, on perusing the order dated 12th February, 2011 of Human Rights Commission, it is seen that it (Human Rights Commission) has neither issued order or made recommendation as to whether such system (practice) should be kept continued or stopped. However, the Commission has suggested that the order may be obtained from the State Government or University, as the case may be. And the Commission has mentioned that the said complaint does come within the purview of the Human Rights Commission and the same is not worth taking into consideration by the Commission.

To pass orders on the issues namely - to give admission in the college, to keep reservation in that regard, management share (quota), etc., are the powers pertaining to the University. Hence, the said subject of Law College falls 16 143011

within the ambit of the University, an action of submitting appropriate proposal to the University and to obtain orders thereon may be taken and the Human Rights Commission may be informed to that effect. In the meantime, prevailing procedure shall be continued.

Sd/-

Sadashiv Shivdas

Joint Secretary, Govt. of Maharashtra

Copy:-Principal, Government Law College, Mumbai "

3) The said petitioner thus having realised that she may not get

admission in the Respondent No.2 college rushed to this Court by way

of the present Writ Petition, which was verified by her on 8.7.2011 but

presented in the Registry of this Court on 11.7.2011. In the Petition

originally filed, the only grievance made is about the unfairness in

deducting 5% marks of students who have passed 12th standard

examination from Boards other than the Maharashtra Board. It is

contended that the merit list of candidates is prepared on the basis of

directions contained in the above said letter which has no force of law

and in any case, such artificial distinction is arbitrary and illegal.

According to the said petitioner, the State of Maharashtra, at best,

could reserve certain percentage for students from Maharashtra, that

too by making a law. However, it is not open to deduct 5% marks of

students merely because those students have passed the qualifying

examination from Boards other than the Maharashtra Board. The next 17 143011

ground in the writ petition is that the policy of deducting 5% marks of

students who have passed the qualifying examination from Boards

other than the Maharashtra Board is in violation of the fundamental

right of the citizens to travel and settle down in any part of India. On

that basis, the said petitioner prayed for the following substantive

reliefs in the original writ petition:

"a) That a writ of certiorari or any other writ or direction he issued calling for the records and files of the case and after going into the legality and validity of the decision contained in letter dated 14th June 2011 (Exhibit "D") to deduct 5% marks while giving admissions to students who have passed their XIIth standard examination from any board other than Maharashtra Secondary School Board, quash and set aside the same.

b) That writ of mandamus or any other writ, order or direction be issued ordering and directing respondents 1 and 2 to give admission to the petitioner in the first year law course on the basis of actual marks secured by the petitioner and not after deducting 5% of marks.

c) That the respondent 1 and 2 be ordered and directed to carry out if necessary, fresh admission process for 1st year law course and without deducting 5% marks of students who have passed XIIth standard examinations of any board other than Maharashtra Secondary School Board.

d) ...

e) ...

f) ...

g) ..."

18 143011

4) The said petition was listed before the Court on 14.7.2011

when the Court proceeded to record the statement made by the

Assistant Government Pleader appearing for the State as well as the

Law College. The said order reads thus:

"The learned Asst. Government Pleader appearing for the Government of Maharashtra states that the Government of Maharashtra withdraws the letter dated 14-6-2011, copy of which is at Exh.G to the petition.

2. It has also been pointed out by the learned Counsel appearing for the Petitioner that in the Ordinance Nos.5077 and 5078 framed by the University regulating admission to the three Years LL.B. Degree Course and Five Years LL.B. Degree Course there is no provision for making reservation for Backward Class candidates and other categories. However, the Prospectus issued by the University provides for reservation for Backward Class candidates as also other categories. He also pointed out that there is no provision for faculty wise reservation of seats in any Law or in any instrument having the force of Law. That in five years course any seat will be reserved faculty wise is also not mentioned in the Prospectus.

3. The learned AGP appearing for the State and the Law College stated that in view of what has been pointed out by the Petitioner, the Respondents Nos. 1 & 2 will rework the admission to all the seats in five years course and shall consider the claim of the Petitioner also in accordance with law. Statement is accepted.

4. In our opinion, in view of this statement, it will be appropriate to grant one week time to the Respondents to do the needful. Put up after one week."

19 143011

5) The matter was then moved on 19.7.2011 on the basis of a

praecipe. However, no order was passed on the said praecipe.

Thereafter, the companion petition was produced by the petitioners

therein on 20.7.2011 praying for interim protection as they

apprehended that their admission was likely to be cancelled by the

College on the basis of the statement recorded in the order dated

14.7.2011. The said Writ Petition being Writ Petition (Lodging) No.

1459 of 2011 was ordered to be placed on 21.7.2011 alongwith the

former petition.

6) The second Writ Petition (Lodging) No.1459 of 2011 has been

filed by 43 students of the College who have already secured admission

to the first year of Five years law course on the basis of the merit list

notified by the GLC from time to time. According to these petitioners,

the College ought not to have made the statement before the Court to

jeopardise their interests, that too without giving them any opportunity

or prior notice whatsoever. Accordingly, the petitioners in the second

writ petition have prayed for the following substantive reliefs:

"a) a writ of certiorari or any other appropriate writ, order, direction in the nature of certiorari be passed in respect of the papers and proceedings pertaining to the admissions given to the 20 143011

students in the Government Law College, first year of five years B.L.S.LL.B. Course to cancel, recall / expunge the said statement made on behalf of the Ld. AGP in the said Bombay High Court, OOCJ, Writ Petition (L) No.1385 of 2011.

b) a writ of mandamus or any other appropriate writ, direction and order in the nature of mandamus be issued ordering and directing respondent No.1 to set aside, cancel and/or not to disturb the admissions granted to the petitioners students.

c) ...

d) ...

d) ... "

7) Besides the above said cross writ petition filed by the

students who have already been admitted to the first year of five years

Law course in the GLC, other similarly placed students have filed four

separate Chamber Summonses in the former writ petition essentially

for impleading them as respondents therein. Even these applicants

support the stand of the petitioners in the second Writ Petition filed by

43 students already admitted to the course. In each of these Chamber

Summons, the concerned applicants have stated on affidavit that their

admission to the first year of Five years Law course should not be

disturbed and at any rate at the instance of the petitioner in the first writ

petition, who waited to file the said writ petition till their admission

process was completed. The said applicants in their respective 21 143011

affidavits have further stated that each of them having secured good

marks on the basis of which they could have got admission in any other

College and even to professional courses, which option they have given

up as they got admission in the GLC. As a result, any adverse order

by the Court, at this stage, would cause them irreparable loss as they

would not only be thrown out of the GLC but may not be in a position

to get admission to any other course at this belated stage since the

academic year of all other courses including the Five years law course

has already commenced since long. All these applicants have prayed

for dismissal of the first writ petition i.e. Writ Petition No.1430 of

2011.

8) As a consequence of the plea taken by the applicants in

the Chamber Summonses and the cross writ petition filed by the 43

students, the petitioner in the former Writ Petition decided to amend

her Writ Petition to urge further grounds to challenge the admission

process and also pray for further substantive reliefs. The Court on

21.7.2011 allowed the petitioner in the former petition to amend her

Writ Petition. Pursuant to the said liberty, the said petitioner has added

further grounds. On 21st July, 2011, when all these mattes were listed

for hearing, attention of the Court was invited to a notice issued by the 22 143011

In-charge Principal of the College on the basis of her understanding of

the order of this Court dated 14.7.2011. The said notice at Exhibit 'E'

of Chamber Summons No. 201 of 2011 reads thus:

"NOTICE

Pursuant to the order dated 14thJuly 2011 passed by the Hon.Division Bench of Hon.Justice Shri Deshmukh and Hon. Justice Shri. Ketkar in Writ Petition No. (L) 1385 of 2011, it is hereby informed that the entire admission process for the V Year 1st Year LL.B. has been directed to be reworked as per University Ordinance NO. 05078.

All students who have been admitted / provisionally admitted should make a note.

Regular classes for V Year 1st Year will commence/resume after the Hon. High Court order.

Date: 14th July 2011

I/c. PRINCIPAL"

9) In the context of this notice, grievance was made by the

counsel appearing for the students of the College already admitted to

first year of Five Years Law Course. Considering their grievance, the

Court passed the following order dated 21st July, 2011:

"List this petition alongwith Writ Petition (Lodging) No.1385 of 2011, on 28.7.2011.

23 143011

2. We are informed by the Counsel appearing for the Respondent College that the reworking of the merit list is in progress and it may take some time to finalise the same. We hope and trust that the said exercise will be completed not later than one week from today. The reworked merit list be placed before the Court on the next date of hearing alongwith an affidavit of an authorised officer of the College. All questions raised in the respective petitions as well as by interventionists will be considered on its own merits at the appropriate stage. In the meantime, however, the question of stopping the classes of the first year LL.B. 5 year course does not arise. The classes can continue with clear understanding that the students already admitted until the passing of the order dated 14.7.2011 will have to abide by the final decision in the respective writ petitions.

3. In view of this order, the In-Charge Principal, who is present in Court, assures to immediately withdraw the Circular issued on 14.7.2011 and notify that the concerned classes will be commenced from tomorrow for the students already admitted to the course."

10) As per the amendment carried out in the former writ

petition, it is now contended by the said petitioner that the impugned

circular dated 14.6.2011 is not issued by the State Government in

exercise of powers under Article 162 of the Constitution of India.

Therefore, it has no force of law. Further, the said circular is

implemented only in GLC and not in any other Law Colleges. Thus, it

results in discrimination which is hit by Article 14 of the Constitution

of India. It is further contended that the impugned circular dated 14th

June, 2011 is not based on any data to indicate that the students who

pass qualifying examination from the Board other than the Maharashtra

Board get liberal marks. Thus, there was no material to justify the 24 143011

deduction of 5% marks of the students who passed the qualifying

examination from the Boards other than the Maharashtra Board.

Moreover, the other Boards such as CBSE and ICSE are not even

consulted nor any basic data is collected from the said two Boards.

The next ground taken by way of amendment is that the Mumbai

University has passed an Ordinance in exercise of powers under

Section 53(1) of the Maharashtra Universities Act, 1994. The relevant

Ordinance for admission to the first year of Five years Law course, is

Ordinance No.5077. That does not provide for deduction of 5% marks

of the students who have passed their HSC examination from the

Boards other than the Maharashtra Board. In addition, it is stated that

the prospectus issued by the GLC for the year 2011-2012 which refers

to the eligibility criteria also does not provide for deduction of 5%

marks. Further, the Ordinance No.5077 does not provide for

reservation of 50% seats for reserved category candidates. Thus, the

reservation of 50% seats provided by the GLC was in violation of the

said Ordinance No.5077. It is then contended that neither the

prospectus nor the impugned circular dated 14.6.2011 provides that the

admission to the first year of Five years law course be made on faculty-

wise basis which is the method followed in preparation of the merit

lists by the College. It is further stated that the reservation provided 25 143011

for widow/deserted girl students (self candidates) is without application

of mind and further that the condition specified in the prospectus of

producing original caste certificate by the students is contrary to the

decision of the Apex Court in Madhuri Patil's case. On the basis of

the above additional grounds, the petitioner in the former petition has

prayed for following additional substantive reliefs:

"c1) that a writ of mandamus or any other writ, order or direction be issued ordering and directing the respondent No.1 and 2

i. To carryout fresh admission process by not reserving 50% of the seats in first year of five year law course for backward category candidates. ii. Not to give admission in first year of five year law course by providing for quota for different faculties such as Arts, Commerce, Science, etc.

iii. To give admission to the first year of five year law course strictly as per ordinance No.5077. iv. Not to provide for reservation for widow/deserted girl students (self candidates)"

d2) ....."

11) Accordingly, both the abovesaid Petitions and the

Chamber Summonses were notified for hearing on 28.7.2011. On that

day, the Counsel appearing for the College produced the reworked

merit list. The GLC prepared four sets of merit lists. One, the general

merit list without deducting 5% marks and without bifurcating 26 143011

faculties. The remaining three lists are without deducting 5% marks

but facultywise i.e. Arts, Science and Commerce respectively.

The said lists were made over to the Counsel appearing for the

respective parties and to the Court. At the request of parties, the

hearing of the matter was deferred to next day. Accordingly, the

hearing of both the petitions and Chamber Summonses proceeded

together on 29th July, 2011. During the arguments, the Counsel

appearing for the petitioner in the former writ petition made a point that

the respondents, in particular the College, was offering justification

without filing any reply affidavit. Moreover, the College having made

statement before the Court on the earlier occasion, it was not open to it

to contend to the contrary. In the first place, the petitioner in the

former petition has not chosen to file any reply-affidavit to counter the

assertions made in the affidavit in support of the respective Chamber

Summonses. As a result, the factual position asserted in the said

affidavits and more so the documents appended to the respective

Chamber Summonses can be relied to answer the controversy, even if

the Government or the college has not filed any reply-affidavit in the

former Writ Petition. Further, considering the urgency of the matter,

the parties, however, agreed to proceed with the hearing on the basis

of the documents already on record. It was understood by all 27 143011

concerned that the question as to whether the College can be allowed to

take a stand contrary to the one stated in the earlier order was a matter

which could be answered at the appropriate stage. It was also made

clear to the parties that the documents on which reliance is placed by

the respondents or the applicants in Chamber Summonses, the

correctness thereof can be ascertained on the basis of the original

record produced in Court by the officers of the college / university.

Moreover, as the issues raised by the petitioner were general in nature,

the same could be answered on the basis of documents already on

record. With this clear understanding, the matter was fully argued by

the Counsel appearing for the respective parties.

12) The first question is about the effect of the statement

made by the Counsel for the College, as recorded in order dated 14th

July, 2011. Going by the plain wording of the said order, it is noticed

that the first statement made by the AGP was that the Government was

withdrawing the letter dated 14th June, 2011. So far as this statement

is concerned, let us examine as to whether it would make any

difference. The letter dated 14.6.2011 issued under the signature of

Joint Secretary, Government of Maharashtra merely restates the

position which was obtaining since year 1996 and more so, with 28 143011

reference to the decisions of the Advisory Committee of the College

dated 13th April, 2005 and 17th April, 2006. This communication is

obviously in response to the letter sent by the In-charge Principal of the

GLC dated 4th June, 2011 seeking guidance from the higher authority.

Further, it refers to the order of the Human Rights Commission dated

12.2.2011 and observes that the said order does not in any manner deal

with the question as to whether the arrangement of preparing merit list

of the candidates to be admitted to the first year of five years law

course in the College by deducting 5% marks should be continued or

otherwise. It is then stated that the present arrangement be continued

till appropriate instructions are given by the University or the State

Government. Even if this letter has been withdrawn by the

respondents, that would not affect the admission process already

proceeded with by the GLC on the basis of the prevailing norms which

were in force since year 1996. As a matter of fact, the petitioners have

not chosen to challenge the decision taken in the year 1996 by the

concerned authorities on the basis of which the arrangement of

preparing merit list of candidates by deducting 5% marks of candidates

who have passed the qualifying examination from the Boards other

than Maharashtra School Board was adopted. Neither the decisions of

the Advisory Committee of the Respondent College dated 29 143011

13th April, 2005 or 17th April, 2006 as the case may be, have been

challenged by the Petitioner. So long as the admission process was

undertaken in conformity with the prevailing norms, the withdrawal of

the communication dated 14.6.2011 issued under the signature of Joint

Secretary referred to above will not make any difference. Thus, the

first statement made by the AGP does not militate against the

respondents or the students who have already been admitted in the

GLC by following the procedure which was in force since year 1996

and in particular based on the decisions of the Advisory Committee

referred to above.

13) The next statement of the A.G.P. recorded in the said

order is in response to the issues raised by the advocate for the

Petitioner in the former petition at the time of hearing of that petition

on 14th July, 2011. It refers to the contention of the said Petitioner that

the Ordinance Nos. 5077 and 5078 framed by the University to regulate

the admission to the law courses do not make any provision for

reservation for backward class candidates and other categories. In spite

of that, the prospectus of the University provides for reservation for

backward class candidates and other categories. The advocate for the

petitioner had also pointed out to the Court that the facultywise 30 143011

reservation of seats is not provided for in any law or in any instrument

having the force of law nor it is so referred to in the prospectus. With

reference to the said submission, the AGP appearing for the State and

the college made statement that the said respondents would rework the

admission to all the seats in the five years law course and would

consider the claim of the petitioner in accordance with law.

14 Even on a fair reading of this statement, it cannot be

construed to mean that the said respondents have conceded before the

Court that the admission process which is already completed and on the

basis of which the admitted students have even started attending the

lectures from 4th July, 2011 was to be treated as cancelled and de novo

admission process was to be commenced. This statement, however, is

an assurance given to the Court of preparing a fresh merit list, keeping

in mind the submissions of the petitioner in the former petition.

Further, after such exercise was undertaken the matter could be

examined further by the Court on merits. Indeed, neither the State nor

the respondent College could have taken a stand which were to affect

the crystallised rights in favour of the students who have already been

admitted upon complying the necessary formalities on the basis of the

merit list published from time to time before 14th July, 2011. 31 143011

Admittedly, none of the admitted students were parties to the said

petition either in their individual capacity or, for that matter, in

representative capacity; nor were given opportunity by the State or the

College before making such statement. In our opinion, therefore, the

statement made on behalf of the State and the College even if it is to be

treated as a peremptory statement, was only to assure the Court that

fresh merit list will be drawn or reworked on the basis of the issues

raised by the Petitioner in the former petition. No more and no less.

At any rate, the said statement cannot bind the students already

admitted to the course who were not represented before the Court.

Besides, what is relevant to notice, is that, now, the students who have

already been admitted to the first year of five years Law course in the

respondent-College from amongst the candidates included in the merit

lists published by the College from time to time before 14th July, 2011

as well as the students who have legitimate expectation of getting

admission on the basis of the procedure followed by the College of

providing 5% deduction of marks and faculty-wise merit position, have

rushed to this Court by way of Chamber Summonses and a substantive

writ petition. They filed those proceedings soon after they realised that

the In-charge Principal of the Respondent College hastened to issue the

notice dated 14th July, 2011 (reproduced in paragraph 8 above), 32 143011

informing all concerned that the admission process for the first year of

five years law course will be reworked as per the University Ordinance

No.05078 and the students who have been admitted / provisionally

admitted should take notice thereof. The said notice further declares

that the regular classes of the first year Law course will commence

only after the High Court order. The said students have rushed to this

Court questioning the said notice and also asserting that the admission

process already completed cannot be unsettled without considering

their stand. In this backdrop, the matter will have to be examined

further.

15) Reverting to the statement of the AGP for the State and

college recorded in order dated 14th July, 2011, it also refers to Ordinance

No. 5078. On the basis of the said statement, the In-charge Principal of

the Government Law College issued notice dated 14th July, 2011.

It refers to the fact that the entire admission process has been ordered to

be re-worked by the Court as per University Ordinance No. O5078. In

the first place, no such direction has been issued by the Court in the said

order dated 14th July, 2011. The Court merely recorded the statement

made by the counsel for the State and the Law College as referred to

above, and went on to accept the same.

33 143011

16) Be that as it may, the In-charge Principal of the college, on

complete misunderstanding of the statement made before the Court,

decided to re-work the entire merit list as per Ordinance 5078. Let us

turn to the said Ordinance. It reads as follows:-

"For admission to the First Semester of 3 years LL.B. or 5 years LL.B. Course of the candidates securing more than 40% but less than 45% of marks at the respective qualifying examinations (with further 5% relaxation for the candidates belonging to SC/ST categories) the University may conduct Common Eligibility Examination. The Common Eligibility Examination may be conducted either through University Department of Law or through any of the assenting Law Colleges affiliated to the University of Mumbai on behalf of the University of Mumbai as shall be recommended by the Board of Studies in Law. The candidates passing in such examinations shall become eligible for admission to the respective Law Courses and may be admitted in any of the Law Colleges conducting the respective Courses, subject to the availability of the admissions / seats in the College for the Course and the Class."

17) On plain language of this Ordinance, we have no hesitation

in taking the view that the same cannot be made the basis to re-work the

existing merit list. This Ordinance envisages conducting of common

eligibility examination for the candidates who have secured specified

marks; and, depending on the results of the said examination, the said

candidates may be admitted to the course in the order of merits, subject 34 143011

to availability of seats in the college. It is neither the case of the

University nor of the college that it intends to have such common

eligibility examination of all the aspiring candidates. Moreover, it is too

late in the day for the said authorities to conduct common eligibility

examination after the commencement of the academic year in July, 2011.

On the other hand, the admission process in question has been taken

forward on the basis of the marks obtained by the aspiring candidates in

the respective Board examination(s) and not on the basis of common

eligibility examination, which is peculiar to Ordinance 5078. Even for

this reason, the issues now raised by the interveners / applicants in the

former petition and the cross petition filed by the students, who are

already admitted and/or likely to be affected by any new arrangement,

will have to be considered on its own merits. Thus, the unilateral

statement made by the State or the college before the Court cannot affect

the rights of the admitted students, and more so, when the order dated

14th July, 2011 is not an order issuing direction to the college to cancel

the admissions already granted, much less upon adjudicating the

contentious issues on merits. For the aforesaid reasons, the stand taken

by the petitioner in the former petition that the State and the college are

bound by the statement recorded in order dated 14th July, 2011 does not

take the matter any further.

35 143011

18) The students, who have already been admitted and/or likely

to be affected by any new arrangement at this juncture are justified in

relying on the exposition of the Full Bench of our High Court in the case

of Nachane Ashwini Shivram & Ors. v. State of Maharashtra, reported

in 1998(2) Mh.L.J. 234. The Full Bench examined the question raised

before it, as to the efficacy of the decision of the Court which is passed

without giving opportunity of being heard to the students, who were

likely to be affected by the order, can such order not suffer from the vice

of being void ab initio and needs to be ignored. That question has been

answered in the affirmative by the Full Bench.

19) As aforesaid, in the present case, even on strict reading of

the contents of order dated 14th July, 2011 the same cannot be construed

to mean that the Court has issued any order or direction as such, much

less of cancelling the already concluded admission process. Similarly,

the statements of AGP as recorded in the order dated 14th July, 2011, by

no standards, result in cancellation of the admissions already completed

till 14th July, 2011. So long as such formal order is not passed by the

Court, it is inconceivable as to how the respondents in the writ petition,

and more particularly the students likely to be affected, are estopped 36 143011

from contending that the admission process completed till 14th July, 2011

was legal and proper. Whether that plea should be accepted or otherwise

is a matter to be answered by the Court on its own merits. In other

words, the two statements made by the AGP as recorded in the order

dated 14.7.2011 cannot come in the way of the students who have

already been admitted or the candidates who have legitimate expectation

of getting admission upon following the existing procedure. It is open to

them to argue that no interference at the instance of the petitioner in

former petition was warranted, as the procedure followed by the College

for preparing the merit list was just and valid.

20) We may now, therefore, turn to the preliminary issue raised

by the interveners / applicants in companion Chamber Summonses and

the petitioners in the cross petition. According to them, the petitioner in

former petition is not entitled for any relief whatsoever and her petition

should be dismissed at the threshold on the ground of laches. According

to them, the merit lists prepared by the college were in adherence to the

procedure which is being followed since 1996. In any case, the college

had announced its intention to follow the stated procedure which was

duly published and displayed on the notice board of the college, as also

on the College Website referring to the fact that the candidates from 37 143011

Boards other than Maharashtra Board have to secure 5% more marks

than the cut-off percentage for Maharashtra Board and of providing

reservation up to 50% for reserved category from Maharashtra as per the

Government Resolution. Even the notice displayed on the notice board

of the college before commencement of the admission process clearly

spells out the intent of the college about the method of preparation of

merit lists. Thus, the admission procedure to be followed by the college

was in public domain. The print-out of the information published on the

college website was produced before us. In addition, the notice

published on the college notice board (Exhibit 'H' to Chamber Summons

No. 205 of 2011), reads thus:-

"GOVERNMENT LAW COLLEGE

'A' Road, Churchgate, Mumbai-400 20

Website:www.glcmumbai.com Mumbai: Code no.91-022 E-mai ID: glcstudentscouncil@gmail.com

Telephone : 022-22041707 Fax: 022-22851315

NOTICE NO.

ADMISSION PROCEDURE

FIRST YEAR B.L.S. LL.B. COURSE 2011-12

FIVE YEARS LAW COURSE

ELIGIBILITY H.S.C. or any other examination recognised

equivalent thereto by

Maharashtra Board.

OPEN CATEGORY

(Including OBC/SBC/VJNT) Minimum 45% at the 1st attempt

38 143011

RESERVE CATEGORY

(only SC/ST) Minimum 40%

TOTAL SEATS AVAILABLE 160

50% Reservation for reserved categories from Maharashtra State only.

3% Reservation as per University Circular No. Aff. / Recog. / 207 of 2005 dt. 30/5/2005 for the categories as under

1. Ward of Central/State Government (sic) on Transfer.

2. Ward of Defence Personnel in Service/Ex Serviceman.

3. Students having excellent performance at State/National level in sports & or Cultural events.

4. Physically handicapped/Disabled Students.

5. Widow/deserted female Students (personally).

6. Ward of Freedom Fighters.

ADMISSION WILL BE GIVEN STRICTLY ON

MERIT

Last year i.e. Academic year 2010-11 (Five Years Law course)

Cut-off percentage in open category for students from Maharashtra State Board

Commerce Science Arts 84.50 80.00 78.00 Cut-off percentage for students from all Other Boards Commerce Science Arts 89.80 85.00 83.00

Prospectus & Admission Form will be issued after the declaring the 12th HSC (Maharashtra Board) results, tentatively around the 1st week of June. Visit the GLC Website for updates.

I/C Principal"

21) A similar procedure has been notified in respect of

admissions to Three Years Law Course. That position has been stated on

affidavit by the interveners / applicants which has remained 39 143011

uncontroverted. Besides, it is stated that the first merit list was published

by the college on 20th June, 2011, which was not only displayed on the

college notice board but also on college website. The first merit list

unambiguously spelt out the procedure adopted by the college for

admissions. That list was followed by the second merit list published on

23rd June, 2011, which was also displayed on the college notice board

and college website. It was followed by third merit list on 27th June,

2011 and fourth merit list on 29th June, 2011. The successive merit lists

issued by the college in respect of aided seats clearly spell out the

procedure followed by the college for preparation of merit lists of

candidates to be admitted in the college. These lists were displayed from

time to time on the college notice board and also on the college website.

The college thereafter issued first merit list in respect of unaided seats on

30th June, 2011 followed by second merit list of unaided seats on 4th July,

2011 and third on 7th July, 2011.

22) In substance, it is the case of the interveners / applicants and

the petitioners in the companion Writ Petition that enough publicity was

given about the procedure to be followed by the college for admission to

first year of Five Years Law Course and each of the aspiring candidates

was made fully familiar with the said procedure. Thus, it is too late for 40 143011

the petitioner in the former Writ Petition to approach this Court only on

11th July, 2011, after being convinced that she would not get admission as

per the procedure followed by the college for admission. The Writ

Petition was presented in this Court on 11th July, 2011, much after 207

students were already admitted on the basis of successive merit lists

published by the college, and more so, after the first semester of the

course commenced from 4th July, 2011. Notably, the students, who have

been admitted to the college, whose name found place in the merit lists

published by the college, most of them are students who reside outside

the Mumbai city, as also State of Maharashtra. For that reason, the

explanation offered by the petitioner in the former Writ Petition about

her inaction and delay in filing the Writ Petition is nothing short of an

after-thought plea. And in any case, the settled position cannot be now

unsettled at her instance.

23) Notably, the petitioner in the former Writ Petition has not

made any reference to the notices published by the college from time to

time, which were displayed on the notice board of the college as well as

website of the college much before the admission process actually

commenced, and in particular, before issuance of admission forms, nor

has she made any reference to the fact that the successive merit lists 41 143011

published by the college were in adherence to the admission procedure

already published by the college. All that the petitioner in the first Writ

Petition asserts in her Writ Petition, is that, she was desirous of taking

admission in Government Law College and she filled up the form. Then

the petitioner goes on to say in paragraph 6 of the writ petition that the

third list of admissions was published on 4th July, 2011; and she found

that her name did not find place even in that list, whereas the names of

candidates, who have secured less than 88.4% marks were mentioned

therein and given admission by the college. It is only thereafter she

enquired with the college, when she was told that the merit list was

prepared by deducting 5% marks in respect of candidates who have

passed qualifying examination from Boards other than Maharashtra

Board; and that, at that time, she was given photostat copy of the

impugned decision referred in letter dated 14th June, 2011, which

provides for such deduction. We have no hesitation in taking the view

that the above plea taken by the petitioner in paragraphs 6 and 7 of the

writ petition is unacceptable.

24) It is intriguing to note that the said petitioner has chosen to

amend the writ petition after the filing of accompanying Chamber

Summonses in her Writ Petition, but she did not find it proper to deal 42 143011

with the above-said objection taken in the affidavit in support of the

Chamber Summonses by amending the writ petition. In other words, it is

indisputable that the college notified the admission procedure well in

advance both on the college notice board as well as college website

which was accessible to all the aspiring candidates; and it can be

reasonably assumed that each of the aspiring candidates was fully

familiar with the said procedure. As a mater of fact, the admission

procedure followed by the college is in place for quite some time.

Suffice it to observe that the petitioner has not disclosed the relevant and

material facts, more so, to explain as to why the petitioner waited till 11th

July, 2011, and allowed the admission process to be taken forward,

culminating in completion of admission of at least 207 candidates out of

240 seats available for admission. It is well established position that, if a

candidate participates in the selection process, with full knowledge of the

drawbacks or illegalities in that selection process, and waits till the

outcome of the said process, cannot be permitted to challenge that

selection process at a later stage on the ground that the same is irregular

or illegal only after he realises that he will not be selected. Applying the

same analogy and considering the vague averments made in the writ

petition, we hold that the former petition suffers from laches, and

deserves to be thrown out at the threshold on that ground alone. In view 43 143011

of this finding, no further enquiry into the other questions raised by the

petitioner in former writ petition is warranted.

25) Be that as it may, in the former writ petition, the original

grievance was only with regard to the procedure of deducting 5% marks

of the candidates who have passed the qualifying examination from

Boards other than Maharashtra Board. By way of amendment, the said

petitioner has now challenged the provision made for reservation of 50%

of the total seats for reserved category candidates by the college while

preparing the merit lists, and also the preparation of merit lists on

faculty-wise basis. The sum and substance of the grievance of the said

petitioner is that none of the above was permissible, as that mechanism

was not backed by law.

26) We shall, first, deal with the challenge to the reservation

provided by the college to the extent of 50% seats for reserved category

candidates. The college has provided 50% reservation in consonance

with the notice published before commencement of the admission

process to the first year of Five Years Law Course for the academic year

2011-12, which is extracted, in its entirety, in the earlier part of the

judgment. This reservation has been provided as per the directions 44 143011

issued by the State Government. Section 7(2) of the Maharashtra

Universities' Act, 1994 is an enabling provision, which envisages that

the University shall adopt Government policy and orders issued from

time to time in regard to the reservation for Scheduled Castes, Scheduled

Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes and other

Backward Classes for the purpose of admission of students in the

affiliated or conducted colleges.

27) The University, in the present case, in furtherance of its

obligation to adopt the Government policy regarding reservation of seats

for admission, had issued Circular No. BCC/29/301/1995 on the

basis of Government Resolution dated 22nd June, 1995. The said

Government Resolution reads thus:-

"ANNEXURE - A

mPp o ra=f'k{k.k vkf.k lsok;kstu

foHkkxkP;k vf/kiR;k[kkyhy loZ 'kS{kf.kd

laLFkkae/kwu ßfo'ks"k ekxkl izoxkZdfjrkÞ jk[kho tkxk Bso.ksckcr---------

&&&&&&&&&&&&&&&&&&&&&&&

egkjk"Vª 'kklu

mPp o ra=f'k{k.k vkf.k lsok;kstu foHkkx

'kklu fu.kZ; dzekad % ;q,lth & 1493@¼2428½& fof'k&4 ea=ky; foLrkj Hkou] eqacbZ & 400 032-

fnukad % 22 twu] 1995

45 143011

okpk % 1- 'kklu fu.kZ;] mPp o ra=f'k{k.k vkf.k lsok;kstu foHkkx dz% ;q,lth & 1493@2428@fof'k&4] fn% 23 twu] 1994 o ledzekafdr 'kqf/ni=d fnukad

& tqyS] 1994-

2- 'kklu fu.kZ;] lektdY;k.k] lkaLd`frd dk;Z o fdzMk foHkkx

dz % lhchlh & 1494@iz-dz-236@ekod&5] fn% 13 twu] 95 o ledzekafdr 'kqf/ni=d fnukad & 15 twu] 1995-

3- 'kklu fu.kZ;] lkekU; iz'kklu foHkkx dz- chlhlh&1094@

iz-dz- 68@94@16&c] fn% 15 twu] 1995-

'kklu fu.kZ; % jkT;krhy vuqlwfpr tkrh o vuqlwfpr tekrh Eg.kwu foof{kri.ks ?kksf"kr dj.;kr vkysys tuleqnk; oxGrk vU; dkgh tkrh tekrh dMwu lkekftd] vkfFkZd o 'kS{kf.kd n`"V;k ekxklysY;k dkj.kko#u fo'ks"k loyr ns.;kph ekx.kh y{kkr ?ksrk] 'kklu fu.kZ;] lektdY;k.k] lkaLd`frd dk;Z o fdzMk foHkkx dzekad lhchlh & 1494@iz- dz-236@ekod&5] fn% 13 twu] 1995 o ledzekafdr 'kqf/ni=d fnukad & 15 twu] 1995 e/;s fof'k"V tkrhpk ßfo'ks"k ekxkl izoxZÞ ;k e/;s lekos'k dj.;kckcrps vkns'k fuxZfer dj.;kr vkys vkgsr- T;k tkrhapk ßfo'ks"k ekxkl izoxkZÞ e/;s lekos'k dj.;kr vkyk vkgs R;kph ;knh ifjf'k"V ^^vÞ e/;s ns.;kr vkyh vkgs-

2- 'kklu fu.kZ;] lkekU; iz'kklu foHkkx dz- chlhlh&1094@iz- dz- 68@94@16&c] fn% 15 twu] 1995 vUo;s ßfo'ks"k ekxkl izoxZkÞ lkBh 2% vkj{k.k 'kkldh; @ fue'kkldh; lsosr Bso.;kckcrps vkns'k fuxZfer dsys vkgsr-

3- 'kklu fu.kZ;] mPp o ra=f'k{k.k vkf.k lsok;kstu foHkkx dz % ;q,lth & 1493@2428@fof'k&4] fn% 23 twu] 1994 o ledzekafdr 'kqf/ni=d fnukad & tqyS] 1994 vUo;s brj ekxkloxkZlkBh vd`f"k fon;kihBs o layfXur 'kkldh;@v'kkldh; dyk] foKku] okf.kT;] f'k{k.k'kkL= o brj 'kS{kf.kd laLFkk ;ke/kwu izos'kklkBh vkj{k.k Bso.;kckcrps vkns'k fuxZfer dj.;kr vkys vkgsr- ;k vkns'kkuqlkj 'kS{kf.kd laLFkke/;s jk[kho tkxk 50% ;k izek.kkr Bso.;kr vkysY;k vkgsr- vkrk dkgh fof'k"V tkrh tekrhapk ßfo'ks"k ekxkl izoxkZÞ r lekos'k dj.;kr vkysyk vlY;keqGs ;k izoxkZdfjrk 2% tkxk mPp o ra=f'k{k.k foHkkxkps vf/kiR;k [kkyhy loZ 'kS{kf.kd laLFkkae/kwu ;k vkns'kkUo;s jk[kwu Bso.;kr ;sr vkgs- ßfo'ks"k ekxkl izoxkZÞ dfjrk jk[kwu Bso.;kr vkysY;k 2% tkxk ok<Y;kus vkrk 'kS{kf.kd laLFkkae/kwu jk[kho tkxkaps izek.k [kkyhyizek.ks jkghy %&

46 143011

1- vuqlwfpr tkrh o vuqlwfpr tkrhe/khy ckS/n/keZ LohdkjysY;k O;Drh 13%

2- vuqlwfpr tekrh

7%

3- foeqDr tkrh ¼14 rRle tkrh½

3%

4- HkVD;k tekrh ¼tkusokjh 1990 iwohZP;k 28 o rRle tkrh½ 2-5%

5- HkVD;k tekrh ¼/kuxj o rRle tekrh½ 3-5%

6- HkVD;k tekrh ¼oatkjh o rRle tekrh½ 2%

7- brj ekxkloxhZ;kadfjrk ¼vks-ch-lh-½ 19%

8- fo'ks"k ekxkl izoxZ

2%

&&&&&&&&&&

,dw.k 52%

&&&&&&&&&&

gs vkns'k 1995 & 96 ;k 'kS{kf.kd o"kkZiklwu ykxw dj.;kr ;sr vkgsr-

4- lnj vkj{k.k izR;sd laLFkkae/;s vH;kldze fugk; vlsy vkf.k rs eqDr vkf.k ewY;k/kkfjr tkxkadfjrk R;kaP;k R;kaP;k izek.kkr vlsy-

vkjf{kr tkxk ;k izFker% Hkj.;kr ;kO;kr- ek= vkjf{kr tkxkaoj izos'k feGkyk rjh xq.koRrsuqlkj R;k mesnokjkaP;k vH;kldze fdaok laLFkk ;kckcrP;k dkgh fdaok loZ QDr ojP;k ilarhdfjrk vjk[kho tkxkae/kwu izos'k ns.;klkBh R;kaP;k fouarhuqlkj iqufoZpkj dj.;kr ;kok-

5- 'kS{kf.kd laLFkkae/;s izos'k nsrkauk ,[kk|k izoxkZpk mesnokj u feGkY;kl rs vkj{k.k vuq'ks"k Eg.kwu iq<s vks<.;kr ;sr ulY;keqGs o rs R;kp o"khZ Hkjko;kps vlY;keqGs ekxkloxhZP;k brj xVkrhy mesnokjkauk izos'k nsÅu vkj{k.k iw.kZ dj.;kr ;kos- ;klkBh fnukad 27 twu] 1974 P;k ifjPNsan 2 e/;s fnysY;k ekxZn'kZd rRokuqlkj dk;Zokgh dj.;kr ;koh- ek= vnykcnyhus brj izoxkZrwu Hkj.;kph rjrwn djrkauk v'kk r&gsus miyC/k ekxkloxhZ;kaph la[;k ewGvkj{k.k vf/kd vnykcnyhus >kysys fo|kFkhZ ;kaph la[;k /k#u 52% is{kk vf/kd vl.kkj ukgh-

6- 'kS{kf.kd o"kZ 1995 & 96 lq# >kys vlY;keqGs ßfo'ks"k ekxkl izoxkZÞ r vl.kk&;k tkrhe/kwu izos'k ?ks.kk&;k fo|kF;kadfjrk R;kauh 31 tqyS] 1995 i;Zar 'kklu fu.kZ;] lektdY;k.k] lkaLd`frd dk;Z o fdzMk foHkkx dz- lhchlh & 1494@iz- 47 143011

dz-236@ekod&5] fnukad% 13 twu] 1995 P;k tksMysY;k ifjf'k"V ßcÞ e/khy fooj.ki=kr tkrhps izek.ki= l{ke vf/kdk&;kadMwu ;sÅu lacaf/kr laLFkkizeq[kkadMs lknj dj.ks ca/kudkjd jkghy- ofjy rkj[ksi;Zar tj ;k izoxkZrhy fo|kfFkZ R;kaP;k tkrhps izek.ki= 'kS{kf.kd laLFkkizeq[kkauk lknj d# 'kdys ukghr rj] R;kapk ;k jk[kho tkxkaoj gDd jkg.kkj ukgh- ;kphgh uksan ?ks.ks vko';d vkgs-

7- f'k{k.k lapkyd ¼mPp f'k{k.k½] egkjk"Vª jkT;] iq.ks ;kauk fouarh dj.;kr ;srs dh] gs vkns'k loZ 'kS{kf.kd laLFkk pkydkaP;k fun'kZukl vk.kwu |kosr-

gs vkns'k lkekU; iz'kklu foHkkxkP;k o lektdY;k.k] lkaLd`frd dk;Z] o dzhMk foHkkxkP;k laerhus fuxZfer dj.;kr ;sr vkgsr-

egkjk"Vªkps jkT;iky ;kaP;k vkns'kkuqlkj o ukokus-

¼f=- c- lsu½

mi lfpo] egkjk"Vª 'kklu"

TRUE TRANSLATION FROM MARATHI TO ENGLISH:

"Regarding reserving seats for "Special Backward Category" in all the educational institutions under control of Higher and Technical Education and Employment Department ........

Government of Maharashtra

Higher and Technical Education and Employment Department

Government Resolution No. : USG-1493/(2428)- UE-4.

Mantralaya Extension Building, Mumbai 400 032 Date : 22nd June, 1995.

Read : 1)Government Resolution, Higher and Technical Education and Employment Department No. USG -1493 / 2428 /UE-4, dated 23rd June, 1994 and even numbered Corrigendum dated ___ July, 1994.

48 143011

2) Government Resolution, Social

Welfare, Cultural Affairs and Sports Department No. CBC-1494/ M. No. 236/BCC-5, dated 13th June, 1995 and even numbered Corrigendum dated 15th June, 1995.

3) Government Resolution, General

Administration Department No. BCC-1094/M. No. 68/94/16-B, dated 15th June, 1995.

Government Resolution : Taking into account the demand for granting special concession on the ground of Social, Economically and Educationally Backwardness, from some castes - tribes other than the community specifically declared as Scheduled Caste and Scheduled Tribe in the State, vide Government Resolution, Social Welfare, Cultural Affairs and Sports Department No. CBC-1494/M. No. 236/BCC-5, dated 13th June, 1995 and even numbered Corrigendum dated 15th June 1995, orders have been issued to include specific castes in the "Special Backward Category". Those castes, which have been included in the "Special Backward Category", a list thereof has been given in Appendix 'A'.

2. As per the Government Resolution, General Administration Department No. BCC-1094/ M. No. 68/ 94/16-B, dated 15th June, 1995, orders have been issued to keep 2% reservation in the Government/ Semi Government service for "Special Backward Category".

3. As per the Government Resolution, Higher and Technical Education and Employment

Department No. USG-1493/ (2428)-UE-4 dated 23rd June, 1994 and even numbered Corrigendum dated __ July, 1994, orders have been issued to keep reservation for admission in the Non-agricultural Universities and affiliated Government/ Non- government Arts, Science, Commerce, Education and other Educational Institutions for Other Backward Class people. As per the said order reserved seats have been kept in the proportion of 49 143011

50% in the Educational Institutions. Now, some specific castes - tribes have been included in the "Special Backward Category" hence, by this order 2% seats are kept reserved for the said category, in all the Educational Institutions under the control of the Higher and Technical Education Department. As 2% seats are increased for keeping reserved for "Special Backward Category", now the proportion of reserved seats in the Educational Institutions shall be as mentioned hereinbelow.

The persons from 13% Scheduled Castes

and Scheduled

Tribes embraced

Bouddha religion

Scheduled Tribes 7%

Denotified Castes 3% (14 similar castes)

Nomadic Tribes (28 2.5% and similar castes

before January

1990)

Nomadic Tribes 3.5% (Dhangar and

similar tribes)

Nomadic Tribes 2% (Vanjari and similar

tribes)

For Other 19% Backward Class

(OBC)

Special Backward 2% category

52%

Total

50 143011

These orders are coming into effect from the academic year 1995-96.

4. The said reservation shall be coursewise in each of the Institutions and the same shall be for ------------ free and for value based seats in their respective proportions.

The reserved seats should be filled up firstly. However, though the admission is given on the reserved seats, as per the request of the said candidates, reconsideration should be made for giving admission on some or all unreserved seats, only for higher choice, in respect of the courses or institutions of such candidates, as per the merits.

5. While giving admission to the educational institution, if the candidate of any category is not found then as such reservation is not carried forward as a backlog and as the same is required to be filled up in the same year, such reservation should be filled up by giving admission to the candidates from other Category of Backward Class. For this purpose, an action should be taken as per the guidelines given in paragraph - 2 Dt/. 27 June, 1974. However, while making provision to fill up from other category by way of exchange, it should be seen that the number of Backward Class Candidates available in such a manner, original reservation plus number of candidates available by way of exchange, aggregating together, is not more than 52 percent.

6. As the academic year 1995-96 has commenced, it shall be binding upon the candidates taking admission from the castes included in the "Special Backward Category" to obtain from the Competent Authority the Caste Certificate in the Statement (? proforma) shown in Appendix - B enclosed with the Government Resolution, Social Welfare, Cultural Affairs and Sports Department No. CBC-1494/ M. No. 236/ BCC-5, Dt.

13/June/1995, and to submit the same to the concerned Head of the Institution upto 31 July, 1995. If the candidates from the said category failed 51 143011

to submit their respective Caste Certificates to the Heads of the educational institutions upto the aforesaid date, then they shall not have a right to such reserved seats. This also should necessarily be noted.

7. Director of Education (Higher Education), Maharashtra State, Pune is requested to bring these orders to the notice of the managing bodies of all the educational institutions.

These orders are issued with the concurrence of the General Administration Department and Social Welfare, Cultural Affairs and Sports Department.

By order and in the name of the Governor of Maharashtra.

Sd/-

(T. B. Sen)

Deputy Secretary,

Government of Maharashtra"

28) Pursuant to the aforesaid Government Resolution, the

University issued the above numbered Circular on 13th July, 1995.

The same reads thus:-

"UNIVERSITY OF BOMBAY

No. BCC/29/301/1995

CIRCULAR:

52 143011

Sub.: Implementation of reservation in admission for Scheduled Castes/Scheduled Tribes/Denotified Tribes/Nomadic Tribes/Other Backward Classes/Special Backward Category (S.B.C.) for courses of studies in Arts / Commerce / Science / Education / Law / Engineering / Architecture / Pharmaceutical Science and other equivalent curses coming under the purview of Higher & Technical Education and Employment Department, Government of Maharashtra

Attention of the Director, University Department of Chemical Technology, Principal, Sir J.J. College of Architecture, Directors/Heads of University Departments/Centres and the Principals of constituent and affiliated colleges conducting courses of studies in Arts / Commerce / Science / Education / Law/ Engineering/Architecture/Pharmaceutical Science and other equivalent courses conducted by other recognised educational institution is invited to this office circular No. BCC/29/347 dated 25th July, 1994 and circular No. BCC/29/345 dated 21st July, 1994, requesting them to reserve 50% of seats in admission for Scheduled Castes/Scheduled Tribes/Denotified Tribes/Nomadic Tribes/Other Backward Classes. They are informed that the Government of Maharashtra vide Resolution No. USG/1493/ (2428)/VISHI-4 dated 22nd June, 1995 (in Marathi) has now directed that the University and its affiliated colleges of Arts / Commerce / Science / Education / Law / Engineering / Architecture / Pharmaceutical Science and other equivalent course conducted by other recognised educational institutions to reserve 52% of seats for backward classes instead of 50% for admission in the respective courses as follows:-

1- vuqlwfpr tkrh o vuqlwfpr tkrhe/khy ckS/n/keZ LohdkjysY;k O;Drh 13%

2- vuqlwfpr tekrh

7%

3- foeqDr tkrh ¼14 rRle tkrh½

3%

53 143011

4- HkVD;k tekrh ¼tkusokjh 1990 iwohZP;k 28 o rRle tkrh½ 2-5%

5- HkVD;k tekrh ¼/kuxj o rRle tekrh½

3-5%

6- HkVD;k tekrh ¼oatkjh o rRle tekrh½ 2%

7- brj ekxkloxhZ;kadfjrk ¼vks-ch-lh-½ 19%

8- fo'ks"k ekxkl izoxZ

2%

&&&&&&&&

,dw.k 52%

&&&&&&&&&&

3. They are further informed that the Government of Maharashtra vide Resolution No. CBC 109/P.K.-86/Mawak-5 dated 16th June, 1994 (already circulated) has partially accepted the principle of 'CREAMY LAYER' as recommended by the Mandal Commission and as per the directions of the Supreme Court in Writ Petition No. (Civil) 930/1900, Indira Sahni v/s. Union of India and Others in case of communities coming under sub-clauses 5, 6 & 7 of para 2 above.

4. A copy of the Government Resolution No. USG/1493/ (2428)/VISHI-4 dated 22nd June, 1995 is enclosed as Annexure 'A'.

5. They are also requested to maintain every year a record of the statistics as to the (i) number of applications received from SC/ST/DT/NT/OBC/SBC students, (ii) number of students admitted from the SC/ST/DT/NT/OBC/SBC category, (iii) number of students required to be admitted according to the above percentage, (iv) total number of students admitted every year (BC and non-BC), since this information is required to be submitted every year to the State Government, Director of Higher Education, Pune and the University Grants Commission.

6. The Director, University Department of Chemical Technology, Principal, Sri J.J. College of Architecture, Director/Heads of the University Departments/Centres and the Principals of constituent and affiliated colleges conducting courses of studies in Arts/ Commerce / Science / Education / Law / Engineering / Architecture / Pharmaceutical Science and other equivalent courses 54 143011

conducted by other recognised educational institutions, are required to make special efforts to fill in all the seats reserved for Scheduled Castes/Scheduled Tribes/Denotified Tribes/Nomadic Tribes/Other Backward Classes/Special Backward Category and maintain and send the statistics without fail as mentioned in para 5, so as to facilitate the B.C.Cell its onwards transmission to the State Government, Director of Higher Education, Pune and the University Grants Commission.

Sd/-

Bombay 400 032 (DR. JAIRAM CHAVAN) 18th July, 1995. REGISTRAR"

29) Thereafter, in February, 1996, Government Resolution was

issued on 7th February, 1996 to amend clauses 4 and 5 of Government

Resolution dated 22nd June, 1995. This Government Resolution reads

thus:-

" mPp o ra=f'k{k.k vkf.k lsok;kstu foHkkxkP;k vf/kiR;k[kkyhy loZ 'kS{kf.kd laLFkke/kwu ekxkl izoxkZdfjrk jk[kho tkxk Bso.;kckcr-

egkjk"Vª 'kklu

mPp o ra=f'k{k.k vkf.k lsok;kstu foHkkx

'kklu 'kqf/ni= dzekad & ;q,lth & 1493@(2428)@fof'k& 4 ea=ky; foLrkj Hkou] eqacbZ 400 032-

fnukad 7 Qscqzokjh] 1996-

okpk %& 1- 'kklu fu.kZ;] mPp o ra=f'k{k.k vkf.k lsok;kstu foHkkx dz- ;q,lth &1493@2428@fof'k& 4] fn- 23 twu 1994 o ledzekafdr 'kqf/ni= fnukad 12 tqyS] 1994- 2- 'kklu fu.kZ; lektdY;k.k] lkaLd`frd dk;Z o fdzMk foHkkx dzekad lhchlh& 1494@ iz-dz- 236@ ekod &5] fn- 13 twu 1995 o ledzekafdr 'kqf/ni=d fn- 15 twu] 1995- 55 143011

3- 'kklu fu.kZ;] lkekU; iz'kklu foHkkx dz- chchlh & 1094@iz-dz- 68@94@16 & c] fnukad 15 twu] 1995- 4- 'kklu fu.kZ;] dz- ;q,lth &1493@(2428)@fof'k& 4] fnukad 22 twu 1995-

'kklu 'kqf/ni=d %& 'kklu fu.kZ;] mPp o ra=f'k{k.k vkf.k lsok;kstu foHkkx dz- ;q,lth &1493@(2428)@fof'k& 4] fn- 22 twu 1995 P;k ifjPNsn 4 o 5 e/;s [kkyhy izek.ks lq/kkj.kk dj.;kr ;sr vkgsr-

2- ifjPNsn 4 %& lnj vkj{k.k izR;sd laLFkse/;s vH;kldze fugk; vlsy vkf.k rs eqDr vkf.k ewY;k/kkfjr tkxkadfjrk R;kaP;k R;kaP;k izek.kkr vlsy- ra=f'k{k.k foHkkx oxGrk brj 'kS{kf.kd foHkkaxkarxZr ;s.kk&;k fcxj jk[kho tkxk ;k izFker% Hkj.;kr ;kO;kr- ;ke/;s xq.koRrsuqlkj vl.kk&;k ekxkloxhZ; fo| kF;kZapk ns[khy lekos'k vjk[kho mesnokj Eg.kwu vlsy- ;k fo|kF;kZapk lekos'k vkj{k.kke/;s dj.;kr ;sÅ u;s- ;klkBh fo|kF;kZauh vkiyk izos'k vjk[kho Eg.kwu let.;klkBh ilarh dGfo.;kpk iz'u mn~Hkor ukgh- moZfjr tkxk vkj{k.kkuqlkj Hkj.;kr ;kO;kr vls djrkuk 'kS{kf.kd laLFkke/;s ekxkloxhZ; fo|kF;kZaps izek.k 52% is{kk vf/kd >kys rj R;kl dks.krhgh gjdr ukgh-

ifjPNsn 5 e/khy ^^ek= cnykcnyhus brj izoxkZrwu@iklwu 52% is{kk vf/kd vl.kkj ukgh** gs 'ksoVps okD; iw.kZr% oxG.;kr ;kos-

4- gs 'kqf/ni=d lkekU; iz'kklu foHkkxkP;k laerhus fuxZfer dj.;kr ;sr vkgs-

egkjk"Vªkps jkT;iky ;kaP;k vkns'kkuqlkj o ukokus-

lgh@&

v- ek- HkV~Vyokj)

voj lfpo] egkjk"Vª 'kklu "

TRUE TRANSLATION - MARATHI TO ENGLISH

"Regarding reserving seats for "Special Backward Category" in all the educational institutions under control of Higher and Technical Education and Employment Department ........

Government of Maharashtra

Higher and Technical Education and Employment Department

56 143011

Government Resolution No. : USG-1493/(2428)-UE-4. Mantralaya Extension Building, Mumbai 400 032 Date : 7th February, 1996.

Read : 1) Government Resolution, Higher and Technical Education and Employment Department No. USG-1493/2428/UE-4, dated 23rd June, 1994 and even numbered Corrigendum dated ___ July, 1994. 2) Government Resolution, Social Welfare, Cultural Affairs and Sports Department No. CBC-1494/ M. No. 236/BCC-5, dated 13th June, 1995 and even numbered Corrigendum dated 15th June, 1995.

3) Government Resolution, General Administration Department No. BCC-1094/M. No. 68/94/16-B, dated 15th June, 1995.

4) Government Resolution, No. USG-1493/

(2428)-UE-4, dated 22nd June, 1995.

Government Corrigendum :- Revision in paragraph 4 and 5 of the Government Resolution, Higher and Technical Education and Employment Department No. USG-1493/ (2428)/ UE-4, dated 22nd June, 1995, is made as follows :

2. Paragraph - 4 :- The said reservation shall be coursewise in each of the institutions and the same shall be for free and value based seats, in their respective proportions.

Except the Technical Education Department, unreserved seats coming under other Educational Department should firstly be filled up. Among these, even the backward class student shall be included as unreserved candidate on the basis of merit. Such students should not be included in the reservation. For this purpose, a question does not at all arise to intimate his choice to consider his admission as unreserved. Remaining seats should be filled up as per reservation, while doing so if the proportion of the backward class students become more than 52% in the Educational Institutions then there shall be no objection thereto.

The last sentence of paragraph 5, "However, while making provision to fill up from other category by way of exchange......., to ---------- is not more than 52 percent" should be deleted fully.

4. This corrigendum is issued with the concurrence of General Administration Department.

57 143011

By order and in the name of the Governor of Maharashtra.

Sd/-

(A. M. Bhattalwar)

Under Secretary, Government of Maharashtra"

30) On the basis of the modified paragraphs 4 and 5 of the

Government Resolution dated 22nd June, 1995, the University of Mumbai

issued circular on 29th March, 1996, which reads thus:-

"UNIVERSITY OF BOMBAY

No. BCC/20/301-A/1996

CIRCULAR

Sub.: Implementation of reservation in

admission for Scheduled Castes/Scheduled Tribes/Denotified Tribes/Nomadic Tribes/Other Backward Classes/Special Backward Category (S.B.C.) for courses of studies in Arts / Commerce / Science / Education/ Law/Engineering/Architecture/Pharmaceutical Science and other equivalent courses coming under the purview of Higher & Technical Education and Employment Department, Government of Maharashtra

----------

1. Attention of the Director, University Department of Chemical Technology (Autonomous), Principal, Sir J.J. College of Architecture, Directors/Heads of University Departments/Centres and the Principals of constituent and affiliated colleges conducting courses of studies in Arts/Commerce/Science/Education/Law/Engineering/Archi- tecture /Pharmaceutical Science and other equivalent courses conducted by other recognised educational institution is invited to this office circular No. BCC/29/301/1995 dated 18th July, 1995 directing them to reserve 52% of seats in admission for Scheduled Castes/Scheduled Tribes/Denotified Tribes/Nomadic Tribes/Other Backward Classes/Special Backward Category. 58 143011

They are informed that the Government of Maharashtra, Higher & Technical Education and Employment Department issued a Government corrigendum No. USG-1493/ (2428)/VISHI-4 dated 7th February, 1996 (in Marathi) (copy enclosed) to para 4 and 5 of Government Resolution, Higher & Technical Education and Employment Department, Resolution No. USG-1493/ (2428)/VISHI-4 dated 22nd June, 1995. They are accordingly requested to take into account the above corrigendum at the time of admission to various courses of studies.

They are requested to maintain and send the statistical information to the University as mentioned in para 5 and 6 of circular No. BCC/29/301 dated 18th July, 1995 so as to facilitate the B.C. Cell (in) its onward transmission to the State Government, Director of Higher Education and the University Grants Commission.

Sd/-

Bombay 400 032 (DR. JAIRAM CHAVAN) 29th March, 1996 REGISTRAR

Copy to ... "

31) Besides the above, the latest circular issued by the

University of Mumbai dated 27th May, 2011 bearing No. Aff./Recog.

1/Admission/2011-2012/92 of 2011 makes reference to office circular

No. GM/188.2003 dated 13th May, 2003 and directs the colleges to

strictly adhere to the norms specified therein. The circular dated 27th

May, 2011 (Exhibit 'C' to Chamber Summons No. 205 of 2011) reads

thus:-

59 143011

"UNIVERSITY OF MUMBAI

No.Aff./Recog.I/Admission (2011-2012)/92 of 2011

CIRCULAR:-

The Principals of the affiliated colleges in Arts, Science, Commerce and Law (5 years) are hereby informed that the procedure for admission in Govt./Private aided/unaided, minority aided and minority unaided colleges affiliated to this University is to be followed strictly in accordance with this office Circular No. pmaÀ188/2003 idnaaMk 13 mao 2003.

Further, they are informed that considering the date of result of the H.S.C. Examination (12th) has been declared on Friday, 27th May, 2011, the following shall be the Schedule date of admission of the F.Y.B.A., F.Y.B.Sc. & F.Y.B.Com. including F.Y.B.M.M. / F.Y.B.M.S. / F.Y.B.Sc.(I.T.), F.Y.B.Sc. (Computer Science), F.Y.B.Com (Banking & Insurance), F.Y. B.Com (Accounting & Finance), F.Y.B.Com (Financial Market), Law (5 years) course for the academic year 2011-2012:-

Sale of Forms 30th May, 2011 to 14th June, 2011

Collection of filled in 6th June, 2011 to 18th June, 2011 Admission Forms

First Merit List : 20th June, 2011 Payment of Fees" : 20th June, 2011 to 22nd June, 2011 (till 1.30 p.m.)

Second Merit List : 22nd June, 2011 (Evening) Payment of Fees : 25th & 27th June, 2011 (till 1.30 p.m.)

Third Merit List : 27th June, 2011 (Evening) Payment of fees : 28th June, 2011 to 29th June, 2011 (till 1.30 p.m.)

Final Merit List : 29th June, 2011 (Evening) Payment of fees : 30th June, 2011

The Principals are hereby requested to adhere to the above schedule of dates and further details if any will be communicated to them shortly. (Note- In case of untoward incident of collapse of transport system 60 143011

due to deluge or any such reasons allowance of time will be declared by the University.)

MUMBAI-400 032 Prin. Dr. M.S.Kurhade 27th May, 2011. I/c. REGISTRAR.

To

..... " (emphasis supplied)

The circular issued by the University of Mumbai dated 13th May, 2003

referred to in the latest circular dated 27th May, 2011, in turn, refers to the

Government Resolution Nos. 2003/031/ 1-9/V.S.-8 dated 16th April,

2003. The said Government Resolution has been issued in compliance

with the decision of the Apex Court in T.M. Pai Foundation and other

connected cases, which, in turn, amongst others, provides for reservation

of seats for reserved categories, including in respect of private colleges.

In furtherance of the instructions issued by the University, the college,

before commencement of the admission process, issued prospectus.

The condition specified in the prospectus for admission to Five Years

Law Course (Exhibit 'F' to the petition) reads thus:-

"Admission to the Five Year Law Course.

A candidate passing the H.S.C. (10+2) examination conducted by the Maharashtra State Board of Secondary and Higher Secondary Education, with minimum 45% marks at the first attempt or any other examination recognised as equivalent thereto by the University of Mumbai with the minimum prescribed marks at the first attempt is eligible for admission to the first Year of pre law course. The above percentage of marks shall be relaxed by 5% for the 61 143011

candidates belonging to reserved categories. Admission will be given strictly on merit.

For candidates securing more than 40% but less than 45% of marks at the respective qualifying examination (with further 5% relaxation for candidates belonging to SC/ST categories) the University may conduct a Common Eligibility Examination. The candidates passing in such examination shall become eligible for admission for the respective Law Courses, and may be admitted in any of the Law Colleges conducting the respective Courses, subject to availability of the seats in the college for the Course and the Class.

No student is allowed to keep terms for two different degree courses simultaneously in the same academic year.

Procedure for seeking admission to the Five Year & Three Year Courses.

Admission process for the first year of the Five Year Law Course will commence immediately after the declaration of H.S.C. results and in the case of Three Year Law Course, after the declaration of graduation results.

Total seats available for 1st Year of B.L.S., LL.B. (Five Years Law Course)

2 divisions aided --- 160

1 division unaided --- 80

Total seats available for 1st Year of LLB. (Three Years Law Course)

4 divisions aided --- 320

There is 50% Reservation for Reserved Categories from Maharashtra State as per the Government Resolution (G.R.)

The Prospectus and the Registration Forms will be available at the College Office. The Registration Form, duly filled in, should be submitted to the college within the prescribed time. Thereafter, merit list of the selected candidates will be displayed on the notice board as under - 62 143011

Five Year Law Course:

I (i) General Category of students from Maharashtra State Board of Secondary and Higher Secondary Education.

50% Reserved Category from Maharashtra State as per the G.R.

1. SC (Hindu & Baudha)

2. ST

3. Vimukta Jati

4. NTI

5. NT2 (Dhangar etc.)

6. NT3 (Vanjari etc.)

7. OBC

8. Special Backward Category

(iii) 3% seats reserved for the following categories:

1. Children of transferred Central/state Government employees offers (sic)

2. Children of Serviceman/Ex-Serviceman.

3. Candidates who have excelled in sports or extra curricular activities at the state/national/international level.

4. Physically handicapped/disabled students.

5. Widowed/Deserted girl student (self candidate).

6. Children/Grandchildren of freedom fighters."

32) According to the counsel for the University, the circulars

issued by the University from time to time do provide for reservation for

students belonging to reserved categories, in consonance with the

Government policy to provide for such reservation issued in exercise of

powers under Section 7(2) of the Act read with Section 5(15) of the Act.

Section 5 (15) specifies the powers and duties of the University to

supervise, control, regulate admission of students for various courses of 63 143011

study in University Departments, conducted and affiliated colleges,

institutions, schools and recognised institutions. None of the above

circulars, much less the latest circular issued by the University on 27th

May, 2011 has been challenged by the petitioner in the former petition.

Merely taking ground in the writ petition that the reservation provided by

the Government Law College up to 50% seats for candidates belonging

to reserved categories is not backed by law, therefore, will have to be

stated to be rejected.

33) We shall now deal with the side arguments raised by the

petitioner in the former petition with regard to reservation. According to

the said petitioner, the reservation provided for widow / deserted girl

students (self candidates) is without application of mind. On this

assertion, the said petitioner seeks direction against the respondent-

college not to provide for reservation for widow / deserted girl students

(self candidates). We need not detain ourselves with this contention.

In that, it is common ground that no seat has been allocated to any

candidate belonging to the said category. We were informed that no such

application has been received. Even the merit lists and re-worked merit

lists produced before us do not refer to the said category. Therefore, we 64 143011

do not think it necessary to burden this judgment with the said ground, as

it does not arise for consideration for the present academic year.

34) The next argument of the petitioner is that the requirement

mentioned in the prospectus to avail of the said reserved category seat is

only on production of original Caste Certificate, which condition is not

consistent with the ruling of the Apex Court in Mahduri Patil's case.

This is a vague plea taken by the petitioner. There is nothing to indicate

from the record that the college has dispensed with production of "Caste

Validity Certificate" of the concerned candidate claiming reservation

against the seats ear-marked for reserved categories. Reliance placed on

one of the requirements of admission, to produce the original Caste

Certificate, to mean that it dispenses with the requirement of a "Caste

Validity Certificate" to be issued by the Caste Scrutiny Committee, is

misplaced.

35) It was then contended that the reservation is only in respect

of candidates belonging to reserved categories from Maharashtra State.

It is well established position that a candidate belonging to reserved

category in his State of origin is not entitled to claim admission against

reserved category in another State [see Marri Chandra Shekhar Rao v. 65 143011

Seth G.S.Medical College, (1990) 3 SCC 130]. In any case, we refrain

to answer the academic question raised by the said petitioner, who has

failed to give any specific instances as to admissions of which students

made against reserved seats are illegal or contrary to the mandate of law

and especially when the said petitioner herself is not claiming admission

against the reserved category. Suffice it to observe that the college has

adhered to the direction issued by the University under Circular dated

27th May, 2011 which adopted the reservation policy of the State

Government and applied the same to admissions in the affiliated and

recognised colleges.

36) It was then contended on behalf of the said petitioner that

Ordinance 5077 merely provides for giving concession to the candidates

belonging to reserved categories in respect of the qualifying marks but

does not provide for any reservation. Even the prospectus reiterates the

same position. Ordinance 5077 reads thus:-

"A candidate for being eligible

• for admission to the First Semester of 3 years LL.B. Degree Course must have passed/completed Degree Examination in any Faculty of a recognised University or equivalent qualification with minimum 45% of marks at the qualifying examination if there is no Eligibility test and, 40% of marks at the qualifying examination if there is an Eligibility test. However the above percentage of 66 143011

Marks shall be relaxed by 5% for the candidates belonging to SC,ST categories.

• for admission to the First Semester of 5 years LL.B. Degree Course must have passed/completed H.S.C. Examination or equivalent qualification with minimum 45% of marks at the qualifying examination if there is no Eligibility test and, 40% of marks at the qualifying examination if there is an Eligibility test. However the above percentage of marks shall be relaxed by 5% for the candidates belonging to SC,ST categories."

37) Even this submission does not commend to us.

The provision such as Ordinance 5077 only governs the eligibility

criteria of the candidate, and cannot be construed to be a provision

regulating the other admission procedure as such. Indeed, only

candidates who are eligible as per this provision would be entitled to

pursue the course and their claim can be considered for admission while

preparing the merit lists of all the similarly placed eligible candidates.

Suffice it to observe that Ordinance 5077 is a provision limited to the

issue of the minimum eligibility criteria to be fulfilled by the aspiring

candidate. Similarly, the contents of the prospectus, on which much

emphasis has been placed by the said petitioner also does not take the

matter any further. As has been noticed earlier, the college has adhered

to the norms specified by the University regarding reservation, which is

in consonance with the policy of the State Government. That policy or

the directive issued by the University is not the subject-matter of 67 143011

challenge before us. Taking any view of the matter, therefore, the

argument regarding irregularity or illegality in providing for 50%

reservation for candidates belonging to reserved categories by the

Government Law College cannot be countenanced.

38) That takes us to the next challenge of the petitioner in the

former writ petition. At the outset, we may mention that respondent-

Government Law College is a Government College. The State

Government bears the financial burden of running the said college. It is

well established position that, if the State Government bears the financial

burden of running the Government College, it is entitled to lay down

criteria for admission in its own college, and to decide the sources from

which admission would be made, provided, of course, such classification

is not arbitrary and has a rational basis and a reasonable connection with

the object sought to be achieved. So long as there is no discrimination

within each of such sources, the validity of the guidelines laying down

such sources cannot be successfully challenged. Further, the candidates

who have passed the qualifying examination from "a University" (read

Maharashtra Board) would form a class by themselves as distinguished

from those candidates who have passed the qualifying examination from

the other Universities (read Boards other than Maharashtra Board) 68 143011

[See D.N. Chanchala v. The State of Mysore & Ors., AIR 1971 SC

1762]. This exposition will have to be borne in mind while examining

the grievance of the petitioner in the former petition.

39) Reverting to the second challenge, it is argued that the

college has misdirected itself in preparing the merit lists of candidates on

faculty-wise basis. According to the said petitioner, that procedure is not

backed by law. The counsel appearing for the students, who have

already been admitted and/or likely to be affected by any change, on the

other hand, have placed reliance on the Government Order dated 11st

February, 2004, whereunder, the Advisory Committee was appointed by

the State Government to exercise the powers specified under Section

85(5) of the Act. The said Government Order (Exhibit 'E' to Chamber

Summons No. 205 of 2011) reads thus:-

"'kkldh; fo/kh egkfon;ky;] eqacb

LFkkfud lYYkkxkj lferhph LFkkiuk

egkjk"Vª 'kklu

mPp o ra=f'k{k.k foHkkx

'kklu fu.kZ; dz- 'kkfoe & 2003@(6@03)@ef'k&1 ea=ky; foLrkj Hkou] eqacbZ & 400 032-

fnukad% 11 Qsczqokjh] 2004

69 143011

igk%& 1½ egkjk"Vª fon;kihB dk;nk] 1994

2½ f'k{k.k lapkyd] mPp f'k{k.k] egkjk"Vª jkT;] iq.ks ;kaps i= dz-'kkefo@2002@2698@LFkkll@iz'kk&3] fnukad 30@12@2003-

'kklu fu.kZ;

egkjk"Vª fon;kihB dk;nk] 1994 P;k dye 85¼2½ vuqlkj 'kkldh; egkfon;ky;ke/;s [kkyhyizek.ks LFkkfud lYykkxkj lferh LFkkiu dj.;kph rjrqn vkgs%&

LFkkfud lYykxkj lferh % jpuk

1½ lac/khr izkns'khd foHkkxkps lglapkyd] mPp f'k{k.k 2½ fofo/k {ks=krhy 3 v'kkldh; lnL;

3½ egkfon;ky;kP;k f'k{kdkauh R;kaP;ke/kwu fuoMysys 3 f'k{kd lnL; 4½ egkfon;ky;kP;k f'k{kdsrj deZpk&;kauh fuoMysyk ,d f'k{kdsrj lnL;-

5½ lac/khr egkfon;ky;kps izkpk;Z-- lnL; lfpo-

2- dk;n;krhy lnj rjrqnhuqlkj 'kkldh; fo/kh egkfon;ky;] eaqcbZP;k LFkkfud lYykxkj lferhoj [kkyhy v'kkldh; lnL;kaph fu;qDrh dj.;kl 'kklu eatqjh nsr vkgs-

1½ tLVhl Jh- Mh-vkj- /kuqdk ¼lsokfuo`Rr½ 2½ vWMOgksdsV vkj-,- nknk-

3½ vWMOgksdsV Jh- jktho pOgk.k] 402] vlhe] IykWV 237] t;oar ikydj

jksM] ojGh] eqacbZ & 400 025-

70 143011

3- lnj uofufeZr lferh ;k 'kklu fu.kZ;kP;k fnukadkiklwu vfLrRokr ;sbZy o frpk dkyko/kh 5 o"kkZpk vlsy- lferhojhy laLFksP;k 3 f'k{kd lnL;kaP;k o 1 f'k{kdsrj lnL;kP;k fuoMhckcr izkpk;Z] 'kkldh; fo/kh egkfon;ky;] eaqcbZ gs vko';d rh dk;Zokgh djrhy- lnj lYykxkj lferhP;k o"kkZrwu fdeku 2 rjh cSBdk ?ksrY;k tkrhy-

4- lferhP;k dk;Zd{kk o vf/kdkj egkjk"Vª fon;kihB dk;nk&12 e/;s n'kZfoY;kizek.ks vlrhy ¼lferhP;k dk;Zd{kk o vf/kdkj ;kaph izr tksMyh vkgs½-

5- lferhP;k cSBdkaojhy o v'kkldh; lnL;kaP;k izoklkojhy [kpZ] 'kkldh; egkfon;ky;] eaaqcbZ lkBh eatwj vlysY;k rjrqnhrwu@vkdfLed vuqnkukarwu Hkk ;sbZy-

egkjk"Vªkps jkT;iky ;akP;k vkns'kkuqlkj o ukokus]

¼lq-n- iMoG½

dk;kZlu vf/kdkjh] egkjk"Vª 'kklu"

The translated copy of the said Government Order reads

thus:- " Government Law College, Mumbai,

Local Consultant Committee Estb.

Maharashtra State

Higher & Technical Department

Government Order No.GLC-2003(6/03) Mashi-1 Mantralaya Extension Bhavan, Mumbai 400 032 Dated 11th February, 2004.

71 143011

Read: 1) Maharashtra University Act, 1994.

2) Director of Education, Higher Education, Maharashtra State, Pune its letter No. GLC/2002/2698 /Sthas/Prash-3/ dated 30.122003.

Government Order

That as per Section 85 (2) of Maharashtra Universities Act, 1994 in the Government Law Colleges, the following Local Consultant Committee should be established.

Local Consultant Committee: Planing

1. Concerned Asst Director of Regional Department, Higher Education.

2. Three Non-Government members of three different area.

3. 3 Teacher members, they should be selected through the Law Teachers.

4. 1 member should be selected through employees of College.

5. Principal of concerned College - Member Secretary

2. As per the Rules, the Government Law Colleges, Mumbai's the Local Consultant Committee, the following Non-Government members for their appointment/selection the Government is granting permission.

1. Justice Shri D.R. Dhanuka (Retired)

2. Adv. R.A. Dada.

3. Adv. Shri Rajeev Chavan, 402, Asim, Plot 237, Jaywant Palkar Road, Worli, Mumbai 400025.

3 The above referred New Committee Body should be in existence form the Government order and its duration is at 5 years. That for appointment/selection of 3 members from the Teachers members and 1 member from employees of colleges should be appointed, regarding the same the Principal, Government Law Colleges, Mumbai the requisite 72 143011

steps should be taken. The above Consultant Committee minimum 2 meetings should be taken in a year.

4. The selected committee or body's duty is as per Section 85(5) of Maharashtra Universities Act, 1994 (the Committee's duties and powers is enclosed herewith)

5. The expenses of Committee's meeting and Non- Government members, the same is as per fund which is granted to the Government College, Mumbai/ sudden Aided.

As per the order of Maharashtra Government and in its name.

Sd/-

(S.D. Padval)

Executive Officer, Maharashtra State.

.... "

40) Section 85(2) of the Act, inter alia, stipulates that a separate

local Managing or Advisory Committee for college or institution

managed and maintained by the Government should be appointed.

The powers and duties of the said Committee are provided in sub-section

(5) thereof. Amongst others, in terms of Section 85(5)(f), the Committee

is expected to advise the principal regarding the intake capacity of

various classes, preparation of time tables, distribution of the available

teaching workload and such other matters relating to internal

management of the college and discipline of the college students as may

be referred to it by the principal, from time to time. As per Section 85(5)

(j), the said committee has to perform such other duties and exercise such

other powers as may be entrusted by the management and the university. 73 143011

The purpose of appointing Advisory Committee for the Government

College is to aid and assist the Government to manage and maintain its

college.

41) The Committee so appointed, in its meeting held on 13th

April, 2005, was required to discuss the issue regarding streamlining the

admission process faculty-wise to advise the principal and management

of the college in that regard. The relevant extract of the minutes of the

meeting held by the said Committee on 13th April, 2005 (Exhibit 'F' to

Chamber Summons No. 205 of 2011) is reproduced thus:-

"A meeting of the Advisory Committee was held on 13.4.2005 in the Principal's Chamber. The following members were present.

1. Justice D.R. Dhanuka

2. Advocate V. Chavan

3. Prof. (Mrs.) G.N. Parawati

4. Prof. P. Mokal

5. Prof. (Mrs.) Rachita Ratho

6. Mrs. S.G. Dalvi (Clerk-in charge)

7. Principal (Mrs.) P.R. Rao - Chair person "

Leave of absence was granted to Mr. Rafiq Dada and Mr. Munavar Ali, Joint Director.

The Principal welcomed the members

The following matters were discussed.

AGENDA: Procedure for admission

The Principal apprised the members about the admission procedure and informed them that a common merit list was prepared for Arts, Science and Commerce faculties. 74 143011

After discussion, Justice Dhanuka pointed out that taking into account the ground realities, it is difficult for students of the Arts faculty to score a high percentage. Example - a student who opts for Sociology or English though equally competent cannot score a percentage equivalent to his Science or Commerce counterpart.

In view of these differences it was suggested that 25% each should be reserved for Arts, Science and Commerce respectively and 25% should be put under the "Residuary" category for other faculties like Medicine, Management, Engineering etc.

Further employed students, by mere ground of employment cannot be deprived of admission. They should be treated on par. However repeaters, consistent drop outs with long gaps should be discouraged. If a student has not continued studies year after year, this factor is to be taken into account and should not be readmitted especially if there are limited vacancies. Regular students should be given preference.

The Principal informed the Committee that the college followed the practice of asking for a cut off which was 5% higher for students from other Universities or Boards. After due deliberation, it was suggested that the College should follow the guidelines followed for students of LL.M. Justice Dhanuka suggested that a letter about the procedure could be taken for the University of Mumbai and adopted.

Advocate Chavan suggested that CET examination could be held. The Principal and other members of the teaching staff were of the opinion that it is difficult to introduce CET as the College was affiliated to the University of Mumbai and cannot have its own CET. (However the Principal assured the Committee that she would explore this avenue for future admission with the University of Mumbai for future admissions to Law.)

Advocate Chavan was of the opinion that CET would enable a premier institute like Government Law College to maintain high standards.

RESOLUTION: 1) Resolved unanimously that 25% each seats be reserved for Arts, Science and Commerce. Resolved that the minimum cut off percentage for students of the Arts faculty (open category) should be 65% or more in order to minimize the disparity between the Commerce, 75 143011

Science and Arts faculties. The remaining 25% seats be termed Residuary seats and be given to other faculties like Management, Medicine etc. on merits.

2) Resolved unanimously that employed students be admitted but such employed students who discontinue studies year after year, be not readmitted if there is no vacancy.

3) Resolved that for students from other Universities, the pattern followed for LL.M. Admissions by the University of Mumbai be followed.

4) Resolved that at least for this academic year no CET examination be held.

........"

42) The decision so taken by the Committee is founded on the

Guidelines prescribed for LL.M. Course by the University of Mumbai.

That was necessitated, as it was noticed that the admission to Law

Degree Course was taken by candidates coming from different streams.

Each stream ought to constitute a class by itself. The Committee noticed

that the students of the Arts Faculty, though no less competent, cannot

score percentage equivalent to his Science or Commerce counterpart.

Moreover, when the admissions were to be granted from multiple sources

as in the case of LL.M. admissions, the Committee decided to adopt the

same procedure. The submission of the petitioner in the former petition

is that the Committee could not have decided such procedure on its own.

In the first place, as noticed earlier, the respondent-college is a 76 143011

Government-funded college. The Government appointed a committee to

exercise powers so as to advise the administration / management of the

college on relevant matters, which included regulating admissions to the

college. It has, therefore, laid down criteria for admission to law course,

which, essentially, is founded on the Guidelines issued by the University

of Mumbai for LL.M. Course. Neither the said Guidelines nor the

decision of the Committee are subject-matter of challenge in the present

petition. The college, during the admission process, has merely adhered

to the same norms.

43) It is also noticed that the University of Mumbai issued a

circular as recently as on 15th July, 2011, which is at Exhibit 'G' to

Chamber Summons No. 205 of 2011. The same reads thus:-

"UNIVERSITY OF MUMBAI

No.UG/212 of 2011

CIRCULAR:-

A reference is invited to the Ordinances, Regulations and syllabi relating to the LL.B. degree course (Three Years Degree Course) vide this office Circular No. UG/368 of 2001, dated 20th October, 2001 and the Head, University Department of Law and the Principals of the affiliated Colleges in Law are hereby informed that the recommendation made by the Board of Studies in Law at its meeting held on 19th April, 2011 has been accepted by the Academic Council at its meeting held on 25th May, 2011 vide item No. 4.106 and that, in accordance therewith, the total intake of the students to the first year of the three years 77 143011

LL.B. Programme is divided into equal proportion is as follows:

1/3rd intake from Arts and Fine Arts Faculties jointly, 1/3rd intake from Science, Technology and Medicine Faculties jointly, and 1/3rd intake from Commerce Faculty.

Further, that the same has been brought into force with effect from the academic year 2011-2012.

MUMBAI-400 032 Prin. (Dr.) M.S. Kurhade 15th July, 2011 I/c. Registrar "

44) The University has also recognised the need to apportion

the total intake of the students to the first year of Three Years LL.B.

Programme in the equal proportion, faculty-wise. The above circular

has been issued on the basis of decision of the Academic Council of the

University recorded in the Resolution passed in the meeting held on 25th

May, 2011. The said Resolution reads thus:-

"4.106

It was resolved that the recommendation made by the Board of Studies in Law at its meeting held on 19th April, 2011 be accepted and that in accordance therewith, the total intake of the students to the first year of the Three years LL.B. Programme is to be divided into equal proportion as follows:- 1/3rd intake from Arts and Fine Arts Faculties jointly, 1/3rd intake from Science, Technology and Medicine Faculties jointly, and 1/3rd intake from Commerce Faculty."

Indeed, this decision of the University is only with regard to admission in

first year of Three years Law Course. There is no reason why the same 78 143011

pattern ought not to be applied and will not be good even to admissions

of five years law degree course - as in the case of three years law course

and for LL.M. Course.

45) Considering the above, so long as the petitioner is not in a

position to demonstrate that the classification is arbitrary or irrational and

unreasonable or has no nexus with the object sought to be achieved, we

fail to understand as to how the preparation of faculty-wise merit list can

be faulted with. The decision taken by the Committee appointed by the

State Government under the statute was competent to take such decision.

The decision so taken by the said Committee is not the subject-matter of

challenge. That decision is resonated even in the decision of the

University of Mumbai in respect of filling up total intake of the students

to first year of the three Years LL.B. Course in equal ratio. In our

opinion, therefore, the preparation of merit lists by the college on faculty-

wise basis, which is in adherence to the instructions issued by the

Committee cannot be taken exception to.

46) The Apex Court in the case of Pradeep Jain & Ors. v.

Union of India & Ors., reported in (1984) 3 SCC 654, has expounded

that the admission may depart from the principle of selection based on 79 143011

merits where it is necessary to do so for the purpose of bringing about

real equality of opportunity between those who are unequals. It went

on to observe that the challenge under the Constitution is a dynamic

concept which must cover every process of equalisation. Equality must

become a living reality for the large masses of the people. Further, those

who are unequal, in fact, cannot be treated by identical standards; that

may be equality in law, but it would certainly not be real equality.

De jure equality must ultimately find its raison d'etre in de facto

equality.

47) As of now, neither the Act, Statutes or Ordinances provide

for specific method to be followed for preparation of merit list of

candidates by the concerned colleges. No such provision is brought to

our notice, except Ordinances 5077 and 5078. We have already dealt

with the efficacy of those Ordinances. The same cannot be considered as

providing any guidance or direction on the subject of preparation of merit

list of candidates and apportionment of total intake of seats of the

college, one way or the other. In absence of such provision, the Advisory

Committee was competent to decide on those matters. Indeed, the

procedure must ensure that it should not result in any discrimination

amongst the candidates from same sources. In the present case, the 80 143011

college has merely followed the decision of the Advisory Committee to

treat the candidates belonging to respective faculty as a separate class

and prepare inter se merit list of such class and to provide for and specify

the total number of seats for each of those classes. The procedure of

preparing separate merit list of respective faculty is to achieve real

equality as those candidates cannot be treated by identical standards. In

our opinion, therefore, the challenge of the petitioner regarding

preparation of faculty-wise merit list is without any substance.

48) That takes us to the next challenge of the petitioner in the

former petition. According to the said petitioner, the deduction of 5%

marks of the candidates, who have passed the qualifying examination

from the Boards other than the Maharashtra Board is without authority of

law. Even this submission does not commend to us. We have already

adverted to the background in which the Local Advisory Committee of

the college was appointed by the State Government under Section 85 of

the Act and its competence to enunciate the procedure of preparation of

merit lists of the candidates aspiring to seek admission. The said

Committee, in its meeting held on 13th April, 2005, considered the issue

regarding deduction of 5% marks of students who have passed the

qualifying examination from Boards other than Maharashtra Board. 81 143011

The said decision has been enforced by the college. That decision of the

Committee has not been challenged before us. Indeed, attempt was made

by the counsel for the said petitioner to contend that the Advisory Board

has acted in excess of authority given to it by the Government.

However, no such case is specifically pleaded even in the amended writ

petition. That being a mixed question of fact and law, it was necessary

for the petitioner to plead the same. Be that as it may, it was contended

that all the members of the Advisory Committee who are shown as

present in the meeting, have not signed the minutes. As a matter of fact,

no such grievance has been made in the writ petition. In any case, to re-

assure ourselves, we called upon the counsel for the college to produce

the original record. We have perused the original record. In the first

place, there is intrinsic material to indicate that the meeting was held and

was attended by the seven members referred to in the minutes. Two

other members, who could not attend, were granted leave of absence.

Indeed, out of the seven members present, only signatures of four

members are found at the foot of the minutes. But from the minutes, it

is noted that the other members, including the Chairman, participated in

the discussion. Suffice it to observe that the minutes of the meeting

dated 13th April, 2005, which has been annexed to Chamber Summons

No. 205 of 2011 at Exhibit 'F', is not challenged in the petition. Besides 82 143011

those minutes, the minutes of meeting held on 17th April, 2006 by the

Local Management Committee also specifically deal with the issue of

stipulating 5% deduction of marks obtained by the candidates who have

passed the qualifying examination from Boards other than Maharashtra

Board. The relevant extract of the said minutes reads thus:-

"A meeting of the Local Management Committee was held on 17.4.2006 at 5.30 p.m. In the Principal's chamber. The following members were present -

1) Dr. V.J. Kulkarni, Joint Director of Education - Chairman 2) Principal (Mrs.) P.R. Rao - Member

3) Justice D.R. Dhanuka

4) Sr Counsel Adv. Rafiq Dada

5) Adv. Rajiv Chavan

6) Prof. (Mrs.) G.N. Parawati

7) Prof. P.K. Mokal

8) Prof. (Mrs.) R.S. Ratho

9) Mrs. S.G. Dalvi

The minutes of the meeting held on 7th April, 2005 were read and confirmed. Thereafter, the meeting commenced. .........

ADMISSION TO V YEARS LAW COURSE:

A discussion took place amongst the members of the committee with regard to admission to the 1st year of five year course where securing admission to Government Law College was very competitive.

In view of the legal standing of a premier law institution like Government Law College, Advocate Rajiv Chavan suggested once again that a CET be held. The Principal informed him that as we are affiliated to Mumbai University we cannot have our own admission procedure by holding CET. The Joint Director of Education suggested that a common merit list of students from Maharashtra Board and other Boards be put up and a viva be taken to give admission in the final stage. Mrs. Ratho pointed out the difficulties in this procedure as it would encourage people to come with recommendations. The Principal also pointed out that law 83 143011

admission may also be steeped in legal controversies like engineering/medical admissions. Sr. Counsel Rafique Dada asked if we had any information of Government Law Colleges in other States and the procedure followed therein. The Joint Director & Principal did not have any detailed information in this regard. Further Government Law College is the only Government College for Law in Maharashtra.

Letter dated 9/11/2005 from the Bar Council of India was read over. Principal explained the procedure followed last year in granting admission to the 1st year of five years law course. The Principal also pointed out that from 1996 the college had followed the practice of stipulating 5% higher cut off percentage for students from other Boards. Details of the admission (V yrs. Course) of students to the First Year in 2005 were read out. Arts/Science/Commerce streams had equal number of seats as decided in the earlier meeting. The details of admission in the year 2005 are as follows:-

Faculty No. of seats Maharashtra Board Other Board Cut off percentage Cut off percentage

Total seats (open category) - 80

Arts 26 75.33% (16) 80% (10) Science 25 82.17% (18) 85.80% (7) Commerce 26 80.67% (16) 85.60% (10)

Defence quota ---- 1

Ex-Serviceman ---- 1

Handicapped ---- 1

Sr. Counsel Mr. Rafique Dada was of the opinion that this was reasonable classification as academic excellence was the only criterion. In view of the above fact the committee felt that the practice followed since the year 1996 of stipulating 5% higher for students of other Boards be continued and the faculty-wise allocations of seats also be confirmed. The committee passed the following resolution -

RESOLUTION Resolved that the 5% higher cut off percentage prescribed for students from Boards other than Maharashtra Board, being based on academic excellence and not on the fact of residence is reasonable and be continued. 84 143011

With this practice a student from Mumbai who has given an examination of any Board other than Maharashtra Board will be required to secure a higher cut off percentage. As this practice is based on academic excellence, such a student cannot complain of discrimination. It is reasonable classification and not based on residence of a student. It does not make a discrimination between residents of Mumbai or/and Maharashtra and other States of India.

.... "

49) It is noticed that, since year 1996, the college has been

following the norm of deducting 5% marks of candidates who have

passed qualifying examination from Boards other than the Maharashtra

Board. As aforesaid, the above-said decisions of the committee are not

challenged in the petition.

50) The position emerging from the re-worked merit list for

Academic Year 2011-12 prepared by the college without deducting 5%

marks of the candidates, who have passed the qualifying examination

from Boards other than the Maharashtra Board, reinforces the appre-

hension expressed by the Committee. In that, in the re-worked merit list

of open category - Arts Faculty (without deducting 5%), the first and the

only candidate to secure admission from Maharashtra Board finds place

at position as low as at serial No. 35. The said student has secured 90%

marks in Marathi and stood 1st in Mumbai Division. She has secured 85 143011

aggregate 85.5% marks in the 12th Standard examination conducted by

the Maharashtra Board. That means, the rest of the 34 candidates placed

higher in merit of Arts Faculty as per the re-worked merit list (without

deducting 5% marks) are all from Boards other than Maharashtra Board

- not necessarily residing in Mumbai and/or Maharashtra. Similarly, in

Commerce Faculty re-worked list of open category (without deducting

5% marks), the first candidate from Maharashtra Board is at Serial No. 8.

Only that candidate from Maharashtra Board will get admission as per

the re-worked merit list of Commerce Faculty (open category) and rest of

the seats will go to candidates from Boards other than Maharashtra

Board. Similar pattern emerges even in the re-worked merit list of open

category - Science Faculty (without deducting 5%). The first candidate

from Maharashtra Board, who finds place in the said list, is at serial No.

12. The only other candidate from Maharashtra Board to be admitted as

per this list is at serial No. 32. Rest of the seats out of the total seats

earmarked for Science Faculty (open category) will be cornered by

candidates who have passed their qualifying examination from Boards

other than Maharashtra Board. This disparity is still worst, considering

the fact that the number of students appearing through Maharashtra

Board are substantially high, as compared to the negligible number of

candidates residing in Mumbai / Maharashtra appearing through Boards 86 143011

other than Maharashtra Board. The glimpse of those figures at the level

of 10th standard examination is already taken note of in paragraph 2 of

the reported decision in the case of Fransisco D. Luia (supra), reported

in 2008(5) Bom.C.R. 569. Similar pattern would prevail in the 12th

standard Board examination.

51) Notably, about eleven students of Arts Faculty, three from

Science Faculty and twelve from Commerce Faculty who have passed

their qualifying examination from Maharashtra Board and admitted /

likely to be admitted will be affected by the re-worked merit lists of open

category prepared, without deducting 5% marks of candidates who have

passed their examination from Boards other than Maharashtra Board.

Thus, only one candidate from Arts Faculty, two from Science Faculty

and one from Commerce Faculty who have passed the qualifying

examination from Maharashtra Board will get admission out of the total

seats earmarked for respective faculties in open category; and rest of the

seats thereof will be cornered by candidates from Boards other than

Maharashtra Board, if the policy of deduction of 5% marks was to be

withdrawn / cancelled. This clearly indicates the palpable disparity,

which was required to be corrected by deducting 5% marks of the

candidates who have passed the qualifying examination from Boards 87 143011

other than Maharashtra Board. Therefore, such a correctional course

cannot be stated to be unreasonable, irrational or having no nexus with

the object sought to be achieved. As is observed in Dr. Chanchala's

case (supra), so long as there is no discrimination within each of such

sources, the validity of the procedure laying down such sources cannot

be successfully challenged. The candidates passing through qualifying

examination held by the Local Board, i.e., Maharashtra Board, as per this

policy, are treated as a class by themselves as distinguished from the

candidates passing the qualifying examination through the other Boards.

Such classification has reasonable nexus to the object of equalising the

opportunity for candidates who have passed the qualifying examination

from Maharashtra Board, by deducting 5% marks of candidates

belonging to the Boards other than Maharashtra Board. As a result, we

hold that the petitioner in the former petition ought to fail in the

challenge even to the process of deduction of 5% marks of those who

have passed the qualifying examination from Boards other than the

Maharashtra Board.

52) Even if we were to agree with the grievance of the

petitioner in the former petition that the process adopted by the college of

preparing the merit lists was improper for one or the other reason stated 88 143011

by the petitioner, we have no hesitation in taking the view that it would

not be proper for this Court to upset the admission process already

completed by the college at this distance of time. The college has

already commenced from 4th July, 2011 and the candidates who have

been admitted have completed the necessary formalities of admission.

The interveners / applicants have rightly pressed into service the

observation of the then Chief Justice Shri Swatanter Kumar, which has

been concurred to by the third Judge Shri Justice J.N. Patel (as he then

was), in the case of Francisco D. Luis (supra), that, once large number

of students have already been given admission in different colleges, and

the process of admission, if directed to be re-opened, would result in

delay of academic course, avoidable public expense, inconvenience to

students caused due to mid-stream change. Besides, we cannot be

oblivious to the assertion made on affidavit by the interveners /

applicants as well as the petitioners in companion writ petition that, if the

merit list was to be re-worked and the admissions already granted to

them were to be disturbed, those students, in whose favour, indefeasible

rights have been crystallised, would suffer serious prejudice. In that,

most of them, having secured high percentage of marks, had a fair

opportunity to take admission in other colleges, including to other

professional courses, which they have given up in the fond hope of 89 143011

pursuing Five Years Law Course from Government Law College.

If they were to be now removed from this college, they would neither be

able to get admission to other courses, nor to any law college of similar

repute as that of Government Law College, and may also fall short of the

required attendance for the respective semesters, thereby suffer loss of

one academic year. Even for this reason, the question of acceding to the

petitioner's prayer of directing the respondent-college to undertake fresh

exercise for finalising the admission to first year of Five Years Law

Course will have to be rejected. We would, therefore, decline to

exercise our discretionary jurisdiction at the instance of the said

petitioner on the ground of laches.

53) The counsel for the said petitioner, relying on the decision

of the Apex Court in Mahatma Gandhi University & Anr. v. GIS Jose

& Ors., (2008) 17 SCC 611, submits that the Court should not show

misplaced sympathies, as the Courts have repeatedly held that

educational standards should not be compromised. In the first place, the

dictum in the said decision is on the facts of that case where the

respondent secured admission to M.Sc. Computer Science course, even

though she had secured less marks than the minimum cut-off marks.

Thus, the Courts proceeded on the finding of fact that the respondent was 90 143011

ineligible to be admitted to the said course. On that basis, her admission

came to be set aside. In this case, we have already noticed that each of

the students admitted by the college or likely to be admitted fulfils the

eligibility criteria. Further, the classification on the basis of faculty-wise

or, for that matter, deduction of 5% marks of candidates from Boards

other than Maharashtra Board is not unreasonable, or irrational.

Rather, it has nexus with the object sought to be achieved in creating a

level field amongst the students coming from different streams and

sources. Be that as it may, the counsel for the applicants / interveners

has placed reliance on the decision in Rajendra Prasad Mathur v.

Karnataka University & Anr., AIR 1986 SC 1448, to contend that, even

in the case of admission granted to ineligible candidate to Engineering

Degree Course, the Court protected the interest of the student, as the

lapse was of the Principal of the College in granting him admission. It is

not necessary to dilate on this contention any further for the reasons

already recorded above.

54) Insofar as the petitioner in the former petition, she has

passed out 12th standard examination from CBSE Board in

Commerce Faculty. In the faculty-wise list (open category), without

deducting 5% marks, as prepared by the respondent-college (on the basis 91 143011

that she has, in fact, secured 88.20% marks), her name in the re-worked

Commerce Faculty list appears at Serial No. 101. It is not the case of the

said petitioner that any other candidate from Commerce Faculty, who has

passed the qualifying examination from Board other than Maharashtra

Board, having secured lesser marks than the marks secured by her, is

being preferred by the respondent or is likely to be given admission. In

absence thereof, no relief whatsoever can be granted to the said

petitioner.

55) We place on record the statement made by the counsel for

the respondent-college that, as on 14th July, 2011, total 27 seats were

vacant and were to be filled in by candidates as per the existing (already

notified) merit lists, but, because of the order dated 14th July, 2011, the

college proceeded to keep the admissions of the remaining candidates in

the said merit lists in abeyance. In addition to the said 27 vacancies,

another six seats have fallen vacant because of the withdrawal of

admission by concerned candidates. Thus, in all, 33 seats are vacant, and

will be filled up, in addition to 207 already admitted students, which

include students belonging to reserved categories. In view of the opinion

expressed by us as recorded above, the remaining 33 vacant seats will

have to be now filled up by the respondent-college in accordance with 92 143011

the existing merit lists, and not the re-worked merit lists. Further, the

candidates who have failed to take admission, in spite of their name

appearing in the earlier merit lists notified by the college, cannot be

considered against the 33 vacancies or any future vacancy that may arise.

For, those candidates did not turn up for completing the admission

procedure within the specified time and thus have given up their claim.

Accordingly, the 33 vacancies and/or any future vacancy in the

respondent-college will have to be filled up as per the merit position of

the existing or latest merit lists of the college, and not the re-worked

merit lists.

56) Accordingly, we proceed to pass the following order:-

(1) Writ Petition No. 1430 of 2011 is dismissed

with costs.

(2) The accompanying four Chamber Summonses,

being Chambers Summonses Nos. 201, 205, 206

and 207 of 2011, respectively, are disposed of in

view of the dismissal of Writ Petition No. 1430 of

2011.

93 143011

(3) In view of dismissal of Writ Petition No. 1430

of 2011, nothing survives for consideration in Writ

Petition (Lodging) No. 1459 of 2011.

R.Y. GANOO, J. A.M. KHANWILKAR, J.