Allowed

Miss. Shuham Kabu, through Father, Mr. Ajay Kabu and Anr. v. State of Maharashtra, through Principal Secretary, Higher and Technical Education Dept and Ors.

Bombay HC17 Jul 2013WP/5989/2013

Case brief

AI extract

What is this about?

Two J&K migrant sisters challenged the Maharashtra admission rules and merit list after the State arbitrarily required CET/JEE appearance despite prior written exemptions. The Court held the change arbitrary under Article 14, set aside the merit list, and directed a fresh list based on HSC marks without CET/JEE. Petitioners were also directed not to forfeit fees.

What did the court decide?

Quashed the merit list published on 23 June 2013. Directed State to prepare a fresh merit list based on HSC marks as per February 2013 rules. Directed colleges not to forfeit fees.

Miss. Shuham Kabu, through Father, Mr. Ajay Kabu and… — Education and Admissions | Bombay HC (2013)

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1 of 12 WP.5989.2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.5989 OF 2013

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Miss Shuham Kabu and another Petitioners

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versus

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State of Maharashtra and others Respondents

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Ms.Pooja V. Thorat for Petitioners. Mr.Sameer N. Patil, AGP for Respondents State.

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CORAM : DR.D.Y.CHANDRACHUD AND S.C.GUPTE, JJ. DATE : 17 July 2013

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JUDGMENT - (PER : DR.D.Y.CHANDRACHUD, J.) :

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Rule. The AGP waives service. By consent and on the request of learned counsel, the petition is taken up for hearing and final disposal.

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The two Petitioners before the Court are sisters who together with their families were displaced after 1990 due to the situation in the State of Jammu and Kashmir. The parents of the Petitioners migrated to Pune. The Petitioners passed their S.S.C. in 2011 from the I.C.S.E. board and thereafter completed their H.S.C. in 2013 with 97.3% and 94% marks respectively. Both of them were desirous of applying for admission to an engineering degree course in the State of Maharashtra.

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In the State of Maharashtra, the Directorate of Technical Education has, since 1995, earmarked one seat in every technical

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course over and above the sanctioned intake for migrant students from Jammu and Kashmir These earmarked seats are for each course conducted by every college. 1,870 seats during the current year are earmarked for migrant students from Jammu and Kashmir for the purposes of admission to engineering courses. This quota is in nonautonomous institutions.

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The Directorate of Technical Education issued a notification on 21 February 2013 governing the Common Entrance Test (CET) for technical courses in the State (MT.CET-2013). Clause-2 of the notification read as follows :

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"2. Following type of candidates are exempted from appearing for MT-CET 2013 examination for admission to Engineering/Technology course :

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i. Foreign National/Foreign student /Person of Indian Origin (PIO)/Children of Indian workers in the Gulf countries/Children of NRI;

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(ii) Government of India (GOI) Nominees;

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(iii) Jammu and Kashmir Migrant candidates."

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On 13 February 2013, the Directorate of Technical Education had issued a brochure containing Rules. Clause-2.6 of the brochure issued by the Competent authority and the Director of Technical Education on 13 February 2013 also stipulated as follows :

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"2.6 Eligibility criteria for J and K Migrant students :

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Candidates should be an Indian National and should have passed the HSC (Std.XII) examination of Maharashtra State Board of Secondary and Higher Secondary Education or its equivalent examination with subjects English, Physics, Chemistry and Mathematics and secured minimum 45% marks in the subjects Physics, Chemistry and Mathematics added together.

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The candidate belonging to this type is not required to appear for the MT-CET 2013. "

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Clause-5.3 provides as follows :

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"5.3 Merit Number for J&K Migrant Candidates : Assignment of merit number :

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Each eligible J&K Migrant candidate who has failed and confirmed the online application form for Centralized Admission on or before the last date will be assigned a provisional merit number. Merit of all eligible J&K Migrant candidates will be based on the total marks obtained in Physics, Chemistry and Mathematics in HSC (Std.XII) only; relative merit in case of a tie (i.e. equal marks in Physics, Chemistry and Mathematics taken together out of 300) shall be resolved in the order of preference as given below :

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(a) A candidate securing higher % marks in Mathematics of HSC (Std.XII) Examination;

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(b) A candidate securing higher % marks in Physics of HSC (Std.XII) Examination;

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(d) Birth Date of the candidate. (Elder Candidate will be given preference)."

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The CET was conducted on 16 May 2013. Neither of the two Petitioners appeared for the CET in view of the fact that the

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notification of the State exempted Jammu and Kashmir migrant students from appearing for the MT.CET-2013 for admission to engineering/technology courses.

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Subsequently on 20 May 2013 a brochure was issued by the State Government containing rules for admission to degree courses in engineering/technology. Clause-2.5 of the brochure changed the criteria for eligibility for Jammu and Kashmir migrant students and provided as follows :

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"2.5 Eligibility criteria for J & K Migrant students :

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Candidate should be an Indian National and should have passed the HSC (Std.XII) examination of Maharashtra State Board of Secondary and Higher Secondary Education or its equivalent examination with subjects English, Physics, Chemistry and Mathematics and secured minimum 45% marks in the subjects Physics, Chemistry and Mathematics added together.

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The candidate belonging to this type is required to appear for the MT-CET 2013/JEE Main 2013."

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However, Clause-5.3 of the same rules stipulated as follows :

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"5.3 Merit Number for J&K Migrant Candidates :

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Each eligible J&K Migrant candidate who has filed and confirmed the online application form for Centralized Admission on or before the last date will be assigned a provisional merit number. Merit of all eligible J&K Migrant candidates will be based on the total marks obtained in Physics, Chemistry and Mathematics in HSC (Std.XII) only; relative merit in case of a tie (i.e. equal marks in Physics, Chemistry and Mathematics

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taken together out of 300) shall be resolved in the order of preference as given below :

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(a) A candidate securing higher % marks in Mathematics of HSC (Std.XII) Examination;

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(b) A candidate securing higher % marks in Physics of HSC (Std.XII) Examination;

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(d) Birth Date of the candidate. (Elder Candidate will be given preference).

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Note :

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• The candidate belonging to this type is required to appear for the MT-CET 2013/JEE Main 2013.

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• The Competent Authority of Maharashtra State reserves the right to choose the methodology to prepare the inter-se merit list for J&K Migrant candidates.

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• While converting the marks, if the converted marks work out to be a figure with fraction, fraction up to two decimal places will only be considered.

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• Assignment of a Merit number does not indicate or ensure admission to any seat."

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The new rules were uploaded on the website of the Directorate of Technical Education on 14 June 2013. On 23 June 2013 a list was put up on the website of the Directorate of Technical Education at 11.00 a.m. of students who were called for counseling and accordingly counseling took place at 1.00 p.m. on the same day. The merit list of students prepared by the Directorate of Technical Education (Exhibit-H to the petition) indicates that it was prepared in

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accordance with the marks obtained by students in the CET held by the State Government and in the JEE. However, students seeking admission solely on the basis of the marks obtained in the HSC in the subjects of Physics, Chemistry and Mathematics have been placed en bloc below students who have appeared in the MH.CET-2013 and JEE.

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The grievance of the Petitioners is that :

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(i) The action of the State Government in the Directorate of Technical Education is completely arbitrary and violative of Article 14 of the Constitution;

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(ii) The initial notification of the State Government dated 21 February 2013 clearly stipulated that Jammu and Kashmir migrant students were not required to appear for the MT.CET-2013 examination for admission to engineering/technology courses;

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(iii) The admissions brochure contained a similar provision in Clause-2.6 since the only requirement was that a Jammu and Kashmir migrant student should be an Indian national who had passed the HSC examination from the Maharashtra Board or its equivalent with the subjects of English, Physics, Chemistry and Mathematics with a minimum of 45% marks. Moreover, it was specifically clarified, that the said students are not required to appear for the MT.CET-2013;

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(iv) When the CET was held on 16 May 2013, these rules held the field. Subsequently the rules were modified on 20 May

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But even the modified rules did not stipulate that the merit list would be prepared in accordance with the marks obtained in the CET held by the State but that the merit list will be based on the marks obtained in Physics, Chemistry and Mathematics in the HSC examination;

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(v) In the circumstances, it has been submitted that alteration of the rules after the process has commenced, causes serious detriment to students like the Petitioners. Both the Petitioners, it has been submitted, hold merit positions and obtained high marks in the HSC examination, but on a specific representation to Jammu and Kashmir migrant students that they were not required to appear for the MT.CET-2013, the Petitioners did not appear for the said examination. Though the Petitioners appeared for the JEE, their performance cannot be taken into account when the rules at the relevant point of time did not require the Jammu and Kashmir migrant students either to appear for the JEE or CET.

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When the petition came up for admission yesterday and having regard to the urgency of the matter, the AGP had sought time to take instructions from the Directorate of Technical Education. The Director of Technical Education is present in the Court today during the course of the hearing. The AGP on instructions does not dispute the fact that : (i) The rules were altered after the CET was held in the State of Maharashtra; and (ii) The rules as framed at the relevant time contained a specific exemption from passing the CET for Jammu and Kashmir migrant students. However, it has been submitted that the

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Petitioners participated in the counseling round which was held on 23 June 2013 and were allotted colleges. Subsequently, the Petitioners also participated in the CAP round and were allotted colleges. In the circumstances, it has been urged that no case for interference is made out at this stage since if relief as prayed for is granted, it would displace the allotments already made.

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The object of setting apart a certain quota for Jammu and Kashmir migrant students is to promote access to higher education to students who have been displaced from the State of Jammu and Kashmir. When the State Government issued its initial notification on 21 February 2013 it was made clear that Jammu and Kashmir migrant students were exempted from appearing for the MT.CET-2013 examination for admission to engineering/technical courses. A similar exemption was provided in the brochure containing the rules for admission more particularly in Clause-2.6. This brochure, the AGP states, was published on 13 February 2013 and was to be operational for the academic year 2013-14. Clause 5.3 made it clear that the merit list of these students would be prepared on the basis of the marks obtained in Physics, Chemistry and Mathematics in the HSC examination.

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The new rules were notified by the State Government on 20 May 2013 by which time the MT.CET-2013 had already been held. Clause-2.5 of the new rules stipulates that Jammu and Kashmir migrant students are required to appear for MT.CET-2013/JEE Main 2013. This evidently is an eligibility criteria. However, Clause-5.3

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of the new rules also stipulates that the merit of all eligible Jammu and Kashmir migrant students will be based on the total marks obtained in Physics, Chemistry and Mathematics in HSC (Std.XII) only . In other words, both the brochures that were published in the month of February-2013 and May-2013 stipulated in Clause-5.3 that merit of all eligible Jammu and Kashmir migrant students will be based on the total marks obtained in Physics, Chemistry and Mathematics in HSC (Std.XII) only .

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It is impossible to subscribe to the legality of the action that has been adopted by the State Government in the present case. The students were specifically put to notice that the Jammu and Kashmir migrant students were exempted from appearing for the MT.CET2013 for admission to the engineering/technical courses. Students such as the Petitioners were entitled to rely upon the representation solemnly held across to them in the form of the notification of the State Government dated 21 February 2013 as well as in the rules as originally notified. Even in the modified rules which were notified in the month of May-2013, the State Government has not stipulated that the merit list will be prepared on the basis of the marks obtained in the CET/JEE. The modified rules merely required the appearance of the students at the CET/JEE. Even such a condition could not have been imposed after the process had been initiated and much after the CET/JEE examinations had been held. But, be that as it may, insofar as the Petitioners are concerned, they fulfilled even the requirement of the modified rules, since both of them appeared for the JEE. The manner in which the Directorate of Technical Education has dealt

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with the issue of Jammu and Kashmir migrant students reflects total arbitrariness which no reasonable body or person would adopt. The changing of rules in the manner in which it has been done much after the CET/JEE examinations were held, is arbitrary and violative of Article 14. The imposition of the requirement that the Jammu and Kashmir migrant students must appear for the CET/JEE ought to have been preceded by adequate notice or an opportunity to such students to appear for such an examination. On the contrary, those students were specifically informed that they were exempted from the requirement of appearing for the CET/JEE. In this background, the introduction of such a requirement after the CET had been completed, would deprive students of an opportunity of appearing for the examination and would cause serious detriment and prejudice disabling them from pursuing their studies in the current year in an institution of their choice.

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The Court has been informed that 867 students had applied for allotment of seats of whom 263 had not appeared for the CET/JEE. A representation was held out to them by the State was that they were exempted from appearing in the CET/JEE. The merit list which has been prepared is evidently not on the basis of the marks which have been obtained in Physics, Chemistry and Mathematics in the HSC examination and is, therefore, contrary to the rules which have been published by the State Government. In this view of the matter, the Court would have no other option but to set aside the merit list and to direct the Director of Technical Education to prepare a fresh merit list on the basis of the rules as were notified by the State Government in February-2013.

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We do not find any merit in the defense that the Petitioners participated in the counseling process. It is not in dispute that the list of students was published at 11.00 a.m. on 23 June 2013 and counseling was held on the same day from 1.00 p.m. onwards. The Petitioners being genuine and bona fide students had no choice but to appear for counseling. Once the merit list of the allotted students was put up, the Petitioners obtained knowledge of the basis on which the allotments were made and that a merit list was prepared which was contrary to the rules which were in force and notified by the State Government. The petition has been filed on 4 July 2013 and there has been no delay on the part of the Petitioners in moving the Court.

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In the circumstances, we allow the petition by quashing and setting aside the merit list of students published on 23 June 2013 by the Directorate of Technical Education for allotment of seats to engineering/technical courses for the Jammu and Kashmir migrant students for the academic year 2013-14. The State Government shall prepare a fresh merit list in accordance with the rules as notified in February-2013. The State Government shall direct all colleges where fees have been paid by the students not to forfeit any part of the fees as a result of the re-allocation that would become necessary on the preparation of a correct merit list in accordance with rules. Since the cut off date for all courses is 10 August 2013, the process of preparing a fresh merit list in accordance with law shall be completed well in time so as to obviate any inconvenience to the students.

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Rule is made absolute in the aforesaid terms. Having regard to the facts and circumstances of the case, we direct the Respondents to pay costs to the Petitioners quantified at Rs.15,000/-.

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(DR.D.Y.CHANDRACHUD, J.)

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(S.C.GUPTE, J.)

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MST

Miss. Shuham Kabu, through Father, Mr. Ajay Kabu and Anr. v. State of Maharashtra, through Principal Secretary, Higher and Technical Education Dept and Ors.

Case brief

What is this about?

What did the court decide?

Miss. Shuham Kabu, through Father, Mr. Ajay Kabu and Anr. v. State of Maharashtra, through Principal Secretary, Higher and Technical Education Dept and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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