Jayant Kishore vs State of Chhattisgarh and Others

Sunil Kumar Sinha, J.—Since common questions of facts and law are involved in these writ petitions, they are being disposed of by this common order. The petitioners are the students, who have been admitted in different private engineering colleges (respondent No. 4 in the writ petitions) in the first year engineering courses in academic session 2010-11. The petitioner in W.P. (C) No. 7508/2010 was admitted on 31-7-2010; petitioners in W.P. (C) No. 7557/ 2010 were admitted on 1-7-2010; petitioner in W.P. (C) No. 7701/2010 was admitted on 8-7-2010; and petitioner in W.P. (C) No. 3129/2011 was admitted on 10-8-2010. Their admissions were against the management quota. All the petitioners are the students who got zero or minus marks in the entrance test. When their forms were sent for enrolment and further processing for registration in the University, the University declined to enroll the petitioners. It was informed that since the petitioners got zero or minus marks in the entrance examination, therefore, they were not eligible for admission as per circulars dated 12-7-2010 & 20-8-2010 (Annexure-P-3 in W. P. (C) 7557/2010 & Annexure-P-8 in W. P. (C) No. 7508/2010) issued by the Director/Additional Director, Technical Education, Raipur. This gave rise to the cause of action to the petitioners to file the instant writ petitioners.

Learned Counsel for the petitioners argued that there was no such restriction in the relevant rules; all the petitioners had appeared in the respective entrance examination; they fulfill all eligibility criteria for their admissions to B.E. first year courses; any circular cannot override the provisions of the rules; the circulars operate to the prejudice of the petitioners: no such decision was taken by the Government competent to legislate or issue directions on the subject, therefore, they cannot be given binding effect on the students who are prosecuting their studies as per their admissions.

On the other hand, Mr. A. S. Kachhawaha, learned Dy. Advocate General appearing on behalf of the State and Director Technical Education, opposed these arguments and supported the circulars dated 12-7-2010 & 20-8-2010 as also the objection taken by the Directorate. Mr. Y. S. Thakur, Learned Counsel appearing on behalf'' of the University, supported the contention of Mr. Kachhawaha. And Mr. S. K. Thomas, Learned Counsel appearing on behalf of the concerned engineering college, supported the contentions raised by the counsel for the petitioners.

We have heard Learned Counsel for the parties at length and have also perused the records of the writ petitioners.

Admittedly, the rules governing admissions to the first year B.E. courses were "Chhattisgarh Engineering Snatak Pathyakram Pravesh Niyam, 2010" (hereinafter referred to as ''rule'' or ''admission rules''). According to Rule 2.4(a), 15% of the total sheets of the private engineering colleges were kept as management quota sheets. Rule 2.4(a) (3) provides that in management quota along with the candidates of Chhattisgarh, the candidates of other States can also be admitted and their admissions shall be on the basis of merits in P. E. T. 2010 & AIE 2010 examinations and the same shall be at the college level. Though this rule provides for admission on merit basis in the entrance examinations i.e. P. E. T. 2010 & AIEEE 2010, but it no where prescribes that the candidates obtaining zero mark or minus marks in the entrance examinations shall not be considered for admission either in Chhattisgarh quota or in other State quota or in management quota as defined in Rule 2.4(a) (3) of the admission Rules 2010.

The stand of the State is that the State or the authorities of the State have power to issue executive instructions, and circulars dated 12-7-2010 & 20-8-2010 were issued under the said power. The above instructions were issued for excellence in technical education.

So far as, power to issue executive instruction by the Government or its executives is concerned, certainly the administrative directions or instructions, unless a law in that behalf is brought into force. The basic principle, however, is that the State or its executive officers cannot interfere with the rights of citizens unless they can point out some rules or law, which authorize them to do so.

In State of Madhya Pradesh v. Thakur Bharat Singh AIR 1967 SC 1170, the Supreme Court repelled the contention that by virtue of Article 162, the State or its officers may, in the exercise of executive authority, without any legislation in support thereof, infringe the rights of citizens merely because the legislature of the State has power to legislate in regard to the subject on which the executive order is issued. The same principle was reiterated by the Supreme Court in Satwant Singh Sawhney Vs. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi and Others, . It was observed in clear words that every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority.

In the instant case, Learned Counsel for the State, could not show any rule or law, on which the above circulars were issued. At this stage, we would like to point out the provisions of Rule 2.11 of the admission Rules. It provides that Government of Chhattisgarh alone would have right to make amendments in these rules or procedure, at any stage, in the public interest according to its necessity. With a view to find out as to whether any such decision was taken by the Government of Chhattisgarh, we had called upon the Dy. Advocate General to produce relevant records. The Dy. Advocate General has produced before us a file of 13 pages bearing No. F9-12/2010/42 and has stated that this is the only file with relation to the above subject. We find from the contents of the above file that the Directorate had made proposal for cut-off marks as 20 in AIEEE, 2010 examination for admission in other State quota and management quota, but the above proposal was not accepted by the concerned minister. Even, after that the Directorate issued the circular dated 20-8-2010. This makes clear that without any decision taken at the Government level, the above circular was issued. Learned Dy. Advocate General has drawn our attention towards circular dated 12-7-2010, in which impediments of zero and minus marks in P. E. T. and AIEEE, 2010 were mentioned. This was also a circular issued by Directorate in relation to counselling and admission to engineering courses in Session 2010-11. The above impediments have been mentioned in instruction No. 12 of the circular. On being pointedly asked about the basis of instruction No. 12 i.e. instruction relating to zero or minus marks, learned Dy. Advocate General could not point out any basis for the same. In fact, no documents relating to the above decision also could be produced.

These writ petitions were filed in the year 2010 and 2011 when objections were raised by the University on the basis of above circulars. The petitioners are prosecuting their regular studies from the very beginning of the session and they have been provisionally permitted to appear in the examinations (three semesters) by various interim orders passed by this Court. Now they have already appeared in 3rd semester examination held in the month of December 2011. It was stated at Bar that only 13 students (petitioners herein) are effected by the above decision taken by the Directorate.

In Miss. Mohini Jain Vs. State of Karnataka and others, the Supreme Court held that : "The "right to education" is concomitant to the fundamental rights enshrined under Part III of the Constitution. The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making "right to education" under Article 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate."

In Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., : (AIR 1993 SC 2178), it was held that "Though the right to education is not stated expressly as a fundamental right, it is implicit in and flows from the right to life guaranteed under Article 21 having regard to the broad and expansive interpretation given by the Court. The right to education has been treated as one of transcendental importance. It has fundamental significance to the life of an individual and the nation. Without education being provided to the citizens of this country, the objectives set -forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail. The fact that right to education occurs in as many as three Articles in Part IV viz., Articles 41, 45 and 46 shows the importance attached to it by the founding fathers. Even some of the Articles in Part III viz., Articles 29 and 30 speak of education."

Now the right to education is a fundamental right under Article 21A inserted by the Eighty-sixth Amendment of the Constitution. Certainly, the above two circulars of the Directorate operate to the prejudice of the petitioners as they shadow over their right to education. Unless the impugned instructions contained in the above circulars, so far as they relate to zero and minus marks, are supported by some legislative authority, the same cannot be permitted to stand against the right and interest of the petitioners. We must note that in the rules relating to admission in 2011-12 i.e. "Chhattisgarh Engineering Snatak Pathyakram Pravesh Niyam, 2011", Rule 2.7.1(b) has now been inserted and now the candidates having less than 10 marks in AIEEE examination have not been held eligible for admission in the engineering courses. Therefore, difference in two rules is clear. In the earlier rule i.e. Rule 2010, there was no such provision, however, in the later rule i.e. Rule 2011, the above provision has been inserted. On the above discussion, it is clear that the above impediments contained in circulars dated 12-7-2010 & 20-8-2010, which operate to the prejudice of the petitioners, were not supported by any legislative authority and the same cannot be held to be valid in garb of Article 162 of the Constitution. In the result, the writ petitions are allowed on following terms :--

(i) The two circulars i.e. circular dated 12-7-2010 & 20-8-2010 are declared inoperative against the petitioners.

(ii) The respondent/University is directed to enroll the petitioners in accordance with law.

(iii) The petitioners are permitted to persue their studies in B. E. courses in usual manner.

(iv) There shall be no order as to cost(s).