Full Judgment Text
Cri. Appln. No. 6942/17 & Anr.
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPICATION NO. 6942 OF 2017
Dr. Zahid Zaheer ....Applicant.
Versus
The State of Maharashtra and Ors. ....Respondents.
Mr. A.N. Kakade, Advocate for applicant.
Mr. S.J. Salgare, APP for respondent Nos. 1 and 2.
Mr. S.S. Ladda h/f. Mr. S.J. Rahate, Advocate for respondent No. 3.
WITH
CRIMINAL APPICATION NO. 7005 OF 2017
Dr. Maqdoom Mohiuddin Farooqui ....Applicant.
Versus
The State of Maharashtra and Ors. ....Respondents.
Mr. N.S. Ghanekar, Advocate for applicant.
Mr. S.J. Salgare, APP for respondent Nos. 1 and 2.
Mr. S.S. Ladda h/f. Mr. S.J. Rahate, Advocate for respondent No. 3.
CORAM : T.V. NALAWADE AND
K.L. WADANE, JJ.
DATED : JUNE 28, 2018.
ORDER : [PER T.V. NALAWADE, J.]
1. Both the proceedings are filed under section 482 of
Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.' for
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short) for relief of quashing of F.I.R. No. 417/2017 registered in City
Chowk Police Station, Aurangabad for the offences punishable under
sections 420, 467, 468, 471 and 34 of Indian Penal Code
(hereinafter referred to as 'IPC' for short) and also for the offences
punishable under sections 3 and 7 of the Maharashtra Educational
Institutions (Prohibition of Capitation Fees) Act, 1987 (hereinafter
referred to as 'the Act' for short). Both the sides are heard.
2. The applicant of the first proceeding is the Principal of
Y.B. Chavan College of Pharmacy, Aurangabad and the college is run
by Maulana Azad Educational Trust. The applicant of the second
proceeding is working as the Principal of Maulana Azad College of
Arts, Commerce and Science, Aurangabad. The applicant of the
second proceeding is also the Secretary of the aforesaid institution
and the institution runs many colleges. It is minority institution.
3. In F.I.R. given against the applicants, one Chisti Habib
Ahemad has made allegations against the applicants of the two
proceedings and the allegations are as under :-
(i) For academic year 2016-17 when Pharmacy Council
of India had given permission to pharmacy college of the
applicants to admit only 100 students, for the first year of
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B. Pharm course, they admitted 19 more students to make
money and they have made money by giving illegal
admissions.
(ii) From the students of B. Pharm course, illegally
money is collected in the name of advance fees for all the
four academic years and that way, there is breach of
provisions of the Act against capitation fees.
(iii) Admission is given to less meritorious students in B.
Pharm course by the applicants, accused and for doing so,
they avoided to follow the proper procedure for giving
admissions.
(iv) From the less meritorious students, to whom by
illegal mode admission is given, more money is taken and
mostly from them fees is taken in advance.
(v) To achieve the object of making money, illegal and
false record of admission is prepared by the accused and
false information was supplied to various authorities by the
college and the authorities are :
(a) Deputy Director of Technical Education, State
Government (competent authority),
(b) Dr. Babasaheb Ambedkar Marathwada University
Aurangabad,
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(c) Pravesh Niyantran Samiti (Admission Regulatory
Committee),
(d) Shikshan Shulk Samiti (Fees Regulatory Committee),
(e) Pharmacy Council of India (F.C.I) and All India Council
of Technical Education (AICTE).
(vi) The students of Ph.D. course are also given
admissions illegally in aforesaid manner.
4. For proper appreciation of the aforesaid allegations and
the material on the record, it is necessary to keep in mind the
instructions given by the Apex Court in the cases reported as
under :-
(i) (2002) 8 SCC 481 [T.M.A. Pai Foundation
and Others Vs. State of Karnataka and Ors.],
(ii) (2003) 6 SCC 697 [Islamic Academy of
Education Vs. State of Karnataka],
(iii) (1981) 4 SCC 512 State of Kerala v. T.P.
Roshana, (This case needs to be read with Rule 5 of
the Regulations on Graduate Medical Education, 1997
framed by MCI).
(iv) (1998) 3 SCC 183, Ravindra Kumar Rai vs.
State of Maharashtra,
(v) (2012) 10 SCC 770, Rajan Purohit v.
Rajasthan University of Health Sciences,
(vi) (2005) 2 SCC 65, Mridul Dhar v. Union of
India,
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(vii) (2012) 7 SCC 433, Priya Gupta v. State of
Chhattisgarh, and
(viii) (2012) 10 SCC 149, Faiza Choudhary v.
State of Jammu & Kashmir.
In aforesaid cases, importance of giving admissions on inter-se merit
is discussed by the Apex Court. To see that the selection is made on
the basis of inter-se merit only, the Apex Court has also discussed
the importance of schedule, transparency in admission process. In
such cases, action which can be taken against such institution is also
described by the Apex Court and the action of cancelling permission
and derecognition of the institution can be taken. Even contempt
proceeding can be started as the procedure is laid down by the Apex
Court. Due to these circumstances and observations made by the
Apex Court, the things cannot be taken lightly in the present matter.
Further, it is a statutory power of the police to make investigation.
As per the instructions given by the Apex Court, the State
Government has prepared the Pravesh Niyantran Samiti and
Shikshan Shulka Samiti. The instructions given by the State
Government through these committees are being quoted hereinafter.
5. As per the procedure, if some seats remain vacant after
following the schedule prepared by Pravesh Niyantran Samiti for
Central Admission Process (referred to as 'CAP' for short) rounds,
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the procedure for filling those vacancies need to be followed as per
the Rules given in brochure, instructions prepared by the Samiti for
the year 2016-17. Rule 3 of this brochure shows that for getting
admission under any category, a student is required to apply to
competent authority for admission through CAP. For every category,
the authority is expected to prepare merit list of all such applicants
to enable the institution like the present one to give admissions to
such students and the admissions are to be given strictly on the
basis of inter-se (underline added) merit. For filling even
management quota, Rule 7 (4) of the aforesaid brochure need to be
followed and for that also inter-se merit needs to be strictly adhered.
6. Rule 4 of the aforesaid brochure shows that Director of
Technical Education shall act as Nodal Officer to carry out admissions
under supervision and control of competent authority. The provision
of section 2 (g) give definition of 'competent authority' and so, the
college cannot give go-bye to the instructions issued by the Deputy
Director of Technical Education (the Officer acting for Director) and
necessary information must be supplied by the College, institution to
such Officer.
7. Rule 13 of the brochure shows that procedure for filling
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vacant seats after CAP rounds Nos. (i), (ii), (iii) and (iv) is given.
Rule 13 is important in the present matter as the allegations are in
respect of the seats filled after aforesaid CAP rounds. Rule 13 runs
as under :-
" 13. Admissions in Institutional Quota and
vacant seats after CAP.- The Director or Principal of
the institution shall carry out the admissions for these
seats in the following manner.-
(a) Admissions shall be made in a transparent
manner and strictly as per the Inter-Se-Merit of the
Candidates who have applied to the Institution.
(b) Information brochure or prospectus of the
Institution which specifies rules of admission should be
published well before the commencement of the
process of admission. All the information in the
brochures should also be displayed on the Institution's
website.
(c) Institution shall invite applications by notifying
schedule of admission and the number of seats in each
course to be filled by the institution, by advertisement
in at least two leading newspapers and on the website
of the institute.
(d) Aspiring Candidates fulfilling the eligibility
criteria as notified by the Government and specified by
the appropriate authority, from time to time, shall
apply to the Principal or Director of the respective
institution for admission at the Institution level as
provided in rule 3 (2) (b).
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(e) The institution, as specified by the appropriate
authority, shall fill the seats in the NRI Quota, based
on the Merit list prepared and published by the
Competent Authority.
(f) The institution may give admission to the
applicants on the basis of their inter-se merit derived
from Merit list declared by the Competent Authority for
filling the seats in the Institutional Quota, excluding
the NRI seats.
Provided that, where the appropriate authority
specifies that such admissions shall be based on the
basis of CET, in that case the Institutional quota,
excluding NRI seats, shall be filled on the basis of
Inter-Se-Merit prepared by following the procedure
specified in 8 (4).
(g) The institution shall prepare and display the
Inter-Se merit lists of the Candidates to be filled in at
the institution level, in the Institutional Quota and
Supernumerary Quota of OCI / PIO, Foreign National,
Children's of Indian workers in Gulf Countries along
with the vacant seats after CAP, on the notice board
and shall publish the same on the website of the
institution.
(h) The Minority or Non-Minority institution intending
to surrender the Institutional Quota (in part or full) of
specified courses to the CAP shall communicate two
days before the display of seat matrix of each CAP
Round and the same shall be allotted as per the rules
of CAP.
(i) All the admissions and cancellations shall be
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updated immediately through online system.
If any CAP seat remains or becomes vacant after the
CAP Rounds then the same shall be filled in by the
Candidate from the same Category for which it was
earmarked during the CAP. Further if the seats remain
vacant then the seats shall be filled on the basis of
Inter-Se-Merit of the applicant."
Rule 14 of the brochure is also relevant and it runs as under :-
" 14. Institution Level Round.- If the seats remain
vacant after all CAP Rounds, the said seats shall be
filled in by the institution through Institution Level
Round with the prior approval of the Competent
Authority."
8. Rules 13 and 14 show that transparency is expected
from the college in the process of admission and they also show that
admission should be given strictly on inter-se merit basis. The sum
and substance of Rule 13 is that the information needs to be
published by way of advertisement in newspapers and by other
mode in following respects (a) number of seats to be filled after
aforesaid four CAP rounds, (b) the schedule for filling the aforesaid
seats. The aforesaid information needs to be published in two
leading newspapers and also on website of the institution. They also
provide that the information brochure prepared by institution should
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be published well before the commencement of the procedure which
the institution wants to follow for admission and all the information
in the brochure should also be displayed on the website of the
institution. As per the procedure, the candidates who are entitled to
apply as per the brochure prepared by the State Government are
entitled to apply in this round also and so, proper publication of the
information is must.
9. The applicants have produced copies of two
advertisements published in two newspapers. They are dated
10.8.2016. The advertisement in English in daily newspaper Divya
Marathi was as under :-
Dr. Rafiq Zakaria Campus
Y.B. Chavan College of Pharmacy
Dr. Rafiq Zakaria Marg, Rauza Bagh, Aurangabad 431001
Phone : 0240-2381307, 0240-2381129 : www.ybccpa.ac.in
ADMISSION NOTIFICATION 2016-17
B. Pharm First Year
Applications are invited for institute level admission
against vacant seats/cancellation after CAP / CAP Minority
allotment, as per rules of Directorate of Technical
Education, Maharashtra State, Mumbai. Schedule for
admission is notified on the College notice board.
Dr. Zahid Zaheer
Principal
The advertisement published in Urdu newspaper is also similar. It is
not clear as to whether these newspapers had circulation outside of
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Aurangabad district.
10. The aforesaid advertisements published in newspapers
were not in accordance with Rule 13 of the brochure prepared by the
statutory committee. Number of seats which were lying vacant after
CAP rounds and the schedule for filling these seats was not given.
There is nothing on the record to show that the brochure of the
institution for that year was published prior to the date of
advertisements and it was placed on the website. The letter of
competent authority dated 1.8.2016 shows that for these rounds,
strict compliance of Rule 3 and 13 of the brochure prepared by the
statutory committee was expected from the institution. There was no
such compliance made in the present matter.
11. The learned counsel for the applicants placed reliance on
some correspondence made by this college with University. Copy of
letter of University dated 25.11.2016 is produced on the record and
it shows that for the academic year 2016-17 list of 116 candidates
was supplied by this college to the University to inform that they
were admitted for first year course. This list was approved by the
University. The submissions made and the record show that around
40% of the seats were filled after CAP rounds. The last candidate
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who got admission in this round, had secured only 47 marks out of
150 marks.
12. The learned APP took this Court through the other
correspondence made by the applicants with Deputy Director of
Technical Education, the competent authority. The letter dated
5.3.2018 of the competent authority shows that for the year 2016-
17 list of only 96 candidates was supplied to the competent authority
and this list was approved. The correspondence further shows that
only 65 students for the first year were approved during CAP rounds
and the remaining candidates were for the other academic years.
Thus, complete information was not supplied to the competent
authority by the applicants and there is allegation that it was done
intentionally, so that the institution was able to do illegal things in
respect of the remaining seats. There are allegations that separate
record was prepared for other students.
13. It is the case of the applicants that after CAP rounds (i)
to (iv), 167 students applied directly to the college and out of those
students, the candidates who paid the fees were admitted and for
them the inter-se merit was followed. This submission of the
applicants cannot be accepted at this stage. It is already observed
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that there was no compliance of provisions of Rule 13 prepared by
the statutory committee. Further, even in the list of this round
supplied by the college, the students who had approached to the
institution and who had secured more than 100 marks like Kasliwal
who had secured 115 marks and Pokharana who had secured 107
marks were not admitted. Further, more than 100 students had
secured more marks than the last candidate Shaikh. It is already
mentioned that the last candidate Shaikh had secured 47 marks.
Thus, more than 100 students who were more meritorious and when
many of them were from minority community were not given
admission even when on the basis of aforesaid short advertisement
they had approached the college. Thorough investigation in to that is
necessary.
14. The aforesaid circumstances are sufficient to infer that
due to not following the proper procedure, information was not
reached to the students who intended to take admission to this
course in this college. The learned counsel for applicants submitted
that no student, who was more meritorious has made complaint.
This submission cannot be accepted at this stage. The interim order
made by this Court shows that this Court has prevented the
investigating agency to file the chargesheet. Many times, the
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investigating agency take such order as order of prevention to do
anything. When institution like the present one is involved, not many
persons dare to go against such institution. There are very few
persons and students, who have resources and courage to make
such complaints. The record itself also can speak about the
intentions, but that record of admission is not yet collected by the
police during investigation. Some copies of lists produced by the
institution in the present matter cannot be accepted as they are. It
is very easy in such case to read between the lines and that needs
to be done in the present matters. Thus, there was illegality and
irregularity in giving admissions in the round in which the students
were given admissions from Sr. No. 66 onwards and that needs to be
investigated. That is a fraud on the society and such act destroys
careers of meritorious students. Less meritorious students come in
the field of medicine and that affects adversely the entire society.
15. Other allegation that from many students fees of entire
course, four academic year, was collected in advance is not disputed.
But, the fees in advance from more than 40% of students was
collected by the college and there are specific allegations in that
regard against the applicants. It will be interesting to ascertain as to
whether all of them were are from the list of the last round. As per
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the procedure given by Fees Regulatory Committee and also as per
the provisions of the Act, against capitation fees, the fees cannot be
taken in advance for all the four academic years. Such collection of
fees amounts to taking capitation fees. The learned counsel for
applicants submitted that as per the Special Act, only students or
aggrieved persons can give complaint and so, in the present matter,
complaint cannot be entertained. This submission is not acceptable.
Even the competent authority can take action in such cases. The
papers of the present matter show that the competent authority has
grievance about the procedure followed. Few admissions are not yet
approved by the competent authority. Further, when there is one
cognizable offence and others are non cognizable offences, all the
offences can be treated as cognizable offences. Complaint can be
accepted during investigation and such students can come forward.
Investigation is still in progress.
16. The aforesaid two circumstances show that there is
substance in the allegations made against the applicants. The
aforesaid material and the circumstances are sufficient to make out
prima facie case for the allegations, for the offences that merit was
not followed, the procedure was not followed, more amount of the
nature of capitation fee was collected and offence of fraud against
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the meritorious students and against the society is also committed.
17. Other allegation like sanction/permission to admit more
students than 100 need not be considered at this stage. It appears
that the dispute about the authority of two institutions like Pharmacy
Council of India and AICTE for pharmacy colleges is pending in the
Supreme Court. It appears that this Court has granted stay in favour
of the institutions and the permission granted by AICTE to admit 120
students is in existence due to stay order made by this Court. In
view of these circumstances, this point, allegation made in that
regard need not be considered. Further, even if that allegation is
ignored, the aforesaid allegations cannot be ignored and they can be
considered independently.
18. For the reasons given, this Court holds that detail
investigation needs to be made in the aforesaid allegations. It
involves fraud, creation of false record, use of record containing
incorrect information to the competent authority and also the
commission of the offences under the Act. No relief can be granted
in favour of the applicants as there are specific allegations against
them in respect of commission of the aforesaid offences. In the
result, both the proceedings are dismissed. Interim relief is vacated.
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A request made for continuation of interim relief granted earlier is
rejected. The investigation should go on.
[K.L. WADANE, J.] [T.V. NALAWADE, J.]
ssc/
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IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPICATION NO. 6942 OF 2017
Dr. Zahid Zaheer ....Applicant.
Versus
The State of Maharashtra and Ors. ....Respondents.
Mr. A.N. Kakade, Advocate for applicant.
Mr. S.J. Salgare, APP for respondent Nos. 1 and 2.
Mr. S.S. Ladda h/f. Mr. S.J. Rahate, Advocate for respondent No. 3.
WITH
CRIMINAL APPICATION NO. 7005 OF 2017
Dr. Maqdoom Mohiuddin Farooqui ....Applicant.
Versus
The State of Maharashtra and Ors. ....Respondents.
Mr. N.S. Ghanekar, Advocate for applicant.
Mr. S.J. Salgare, APP for respondent Nos. 1 and 2.
Mr. S.S. Ladda h/f. Mr. S.J. Rahate, Advocate for respondent No. 3.
CORAM : T.V. NALAWADE AND
K.L. WADANE, JJ.
DATED : JUNE 28, 2018.
ORDER : [PER T.V. NALAWADE, J.]
1. Both the proceedings are filed under section 482 of
Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.' for
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short) for relief of quashing of F.I.R. No. 417/2017 registered in City
Chowk Police Station, Aurangabad for the offences punishable under
sections 420, 467, 468, 471 and 34 of Indian Penal Code
(hereinafter referred to as 'IPC' for short) and also for the offences
punishable under sections 3 and 7 of the Maharashtra Educational
Institutions (Prohibition of Capitation Fees) Act, 1987 (hereinafter
referred to as 'the Act' for short). Both the sides are heard.
2. The applicant of the first proceeding is the Principal of
Y.B. Chavan College of Pharmacy, Aurangabad and the college is run
by Maulana Azad Educational Trust. The applicant of the second
proceeding is working as the Principal of Maulana Azad College of
Arts, Commerce and Science, Aurangabad. The applicant of the
second proceeding is also the Secretary of the aforesaid institution
and the institution runs many colleges. It is minority institution.
3. In F.I.R. given against the applicants, one Chisti Habib
Ahemad has made allegations against the applicants of the two
proceedings and the allegations are as under :-
(i) For academic year 2016-17 when Pharmacy Council
of India had given permission to pharmacy college of the
applicants to admit only 100 students, for the first year of
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B. Pharm course, they admitted 19 more students to make
money and they have made money by giving illegal
admissions.
(ii) From the students of B. Pharm course, illegally
money is collected in the name of advance fees for all the
four academic years and that way, there is breach of
provisions of the Act against capitation fees.
(iii) Admission is given to less meritorious students in B.
Pharm course by the applicants, accused and for doing so,
they avoided to follow the proper procedure for giving
admissions.
(iv) From the less meritorious students, to whom by
illegal mode admission is given, more money is taken and
mostly from them fees is taken in advance.
(v) To achieve the object of making money, illegal and
false record of admission is prepared by the accused and
false information was supplied to various authorities by the
college and the authorities are :
(a) Deputy Director of Technical Education, State
Government (competent authority),
(b) Dr. Babasaheb Ambedkar Marathwada University
Aurangabad,
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(c) Pravesh Niyantran Samiti (Admission Regulatory
Committee),
(d) Shikshan Shulk Samiti (Fees Regulatory Committee),
(e) Pharmacy Council of India (F.C.I) and All India Council
of Technical Education (AICTE).
(vi) The students of Ph.D. course are also given
admissions illegally in aforesaid manner.
4. For proper appreciation of the aforesaid allegations and
the material on the record, it is necessary to keep in mind the
instructions given by the Apex Court in the cases reported as
under :-
(i) (2002) 8 SCC 481 [T.M.A. Pai Foundation
and Others Vs. State of Karnataka and Ors.],
(ii) (2003) 6 SCC 697 [Islamic Academy of
Education Vs. State of Karnataka],
(iii) (1981) 4 SCC 512 State of Kerala v. T.P.
Roshana, (This case needs to be read with Rule 5 of
the Regulations on Graduate Medical Education, 1997
framed by MCI).
(iv) (1998) 3 SCC 183, Ravindra Kumar Rai vs.
State of Maharashtra,
(v) (2012) 10 SCC 770, Rajan Purohit v.
Rajasthan University of Health Sciences,
(vi) (2005) 2 SCC 65, Mridul Dhar v. Union of
India,
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5
(vii) (2012) 7 SCC 433, Priya Gupta v. State of
Chhattisgarh, and
(viii) (2012) 10 SCC 149, Faiza Choudhary v.
State of Jammu & Kashmir.
In aforesaid cases, importance of giving admissions on inter-se merit
is discussed by the Apex Court. To see that the selection is made on
the basis of inter-se merit only, the Apex Court has also discussed
the importance of schedule, transparency in admission process. In
such cases, action which can be taken against such institution is also
described by the Apex Court and the action of cancelling permission
and derecognition of the institution can be taken. Even contempt
proceeding can be started as the procedure is laid down by the Apex
Court. Due to these circumstances and observations made by the
Apex Court, the things cannot be taken lightly in the present matter.
Further, it is a statutory power of the police to make investigation.
As per the instructions given by the Apex Court, the State
Government has prepared the Pravesh Niyantran Samiti and
Shikshan Shulka Samiti. The instructions given by the State
Government through these committees are being quoted hereinafter.
5. As per the procedure, if some seats remain vacant after
following the schedule prepared by Pravesh Niyantran Samiti for
Central Admission Process (referred to as 'CAP' for short) rounds,
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6
the procedure for filling those vacancies need to be followed as per
the Rules given in brochure, instructions prepared by the Samiti for
the year 2016-17. Rule 3 of this brochure shows that for getting
admission under any category, a student is required to apply to
competent authority for admission through CAP. For every category,
the authority is expected to prepare merit list of all such applicants
to enable the institution like the present one to give admissions to
such students and the admissions are to be given strictly on the
basis of inter-se (underline added) merit. For filling even
management quota, Rule 7 (4) of the aforesaid brochure need to be
followed and for that also inter-se merit needs to be strictly adhered.
6. Rule 4 of the aforesaid brochure shows that Director of
Technical Education shall act as Nodal Officer to carry out admissions
under supervision and control of competent authority. The provision
of section 2 (g) give definition of 'competent authority' and so, the
college cannot give go-bye to the instructions issued by the Deputy
Director of Technical Education (the Officer acting for Director) and
necessary information must be supplied by the College, institution to
such Officer.
7. Rule 13 of the brochure shows that procedure for filling
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vacant seats after CAP rounds Nos. (i), (ii), (iii) and (iv) is given.
Rule 13 is important in the present matter as the allegations are in
respect of the seats filled after aforesaid CAP rounds. Rule 13 runs
as under :-
" 13. Admissions in Institutional Quota and
vacant seats after CAP.- The Director or Principal of
the institution shall carry out the admissions for these
seats in the following manner.-
(a) Admissions shall be made in a transparent
manner and strictly as per the Inter-Se-Merit of the
Candidates who have applied to the Institution.
(b) Information brochure or prospectus of the
Institution which specifies rules of admission should be
published well before the commencement of the
process of admission. All the information in the
brochures should also be displayed on the Institution's
website.
(c) Institution shall invite applications by notifying
schedule of admission and the number of seats in each
course to be filled by the institution, by advertisement
in at least two leading newspapers and on the website
of the institute.
(d) Aspiring Candidates fulfilling the eligibility
criteria as notified by the Government and specified by
the appropriate authority, from time to time, shall
apply to the Principal or Director of the respective
institution for admission at the Institution level as
provided in rule 3 (2) (b).
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(e) The institution, as specified by the appropriate
authority, shall fill the seats in the NRI Quota, based
on the Merit list prepared and published by the
Competent Authority.
(f) The institution may give admission to the
applicants on the basis of their inter-se merit derived
from Merit list declared by the Competent Authority for
filling the seats in the Institutional Quota, excluding
the NRI seats.
Provided that, where the appropriate authority
specifies that such admissions shall be based on the
basis of CET, in that case the Institutional quota,
excluding NRI seats, shall be filled on the basis of
Inter-Se-Merit prepared by following the procedure
specified in 8 (4).
(g) The institution shall prepare and display the
Inter-Se merit lists of the Candidates to be filled in at
the institution level, in the Institutional Quota and
Supernumerary Quota of OCI / PIO, Foreign National,
Children's of Indian workers in Gulf Countries along
with the vacant seats after CAP, on the notice board
and shall publish the same on the website of the
institution.
(h) The Minority or Non-Minority institution intending
to surrender the Institutional Quota (in part or full) of
specified courses to the CAP shall communicate two
days before the display of seat matrix of each CAP
Round and the same shall be allotted as per the rules
of CAP.
(i) All the admissions and cancellations shall be
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updated immediately through online system.
If any CAP seat remains or becomes vacant after the
CAP Rounds then the same shall be filled in by the
Candidate from the same Category for which it was
earmarked during the CAP. Further if the seats remain
vacant then the seats shall be filled on the basis of
Inter-Se-Merit of the applicant."
Rule 14 of the brochure is also relevant and it runs as under :-
" 14. Institution Level Round.- If the seats remain
vacant after all CAP Rounds, the said seats shall be
filled in by the institution through Institution Level
Round with the prior approval of the Competent
Authority."
8. Rules 13 and 14 show that transparency is expected
from the college in the process of admission and they also show that
admission should be given strictly on inter-se merit basis. The sum
and substance of Rule 13 is that the information needs to be
published by way of advertisement in newspapers and by other
mode in following respects (a) number of seats to be filled after
aforesaid four CAP rounds, (b) the schedule for filling the aforesaid
seats. The aforesaid information needs to be published in two
leading newspapers and also on website of the institution. They also
provide that the information brochure prepared by institution should
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be published well before the commencement of the procedure which
the institution wants to follow for admission and all the information
in the brochure should also be displayed on the website of the
institution. As per the procedure, the candidates who are entitled to
apply as per the brochure prepared by the State Government are
entitled to apply in this round also and so, proper publication of the
information is must.
9. The applicants have produced copies of two
advertisements published in two newspapers. They are dated
10.8.2016. The advertisement in English in daily newspaper Divya
Marathi was as under :-
Dr. Rafiq Zakaria Campus
Y.B. Chavan College of Pharmacy
Dr. Rafiq Zakaria Marg, Rauza Bagh, Aurangabad 431001
Phone : 0240-2381307, 0240-2381129 : www.ybccpa.ac.in
ADMISSION NOTIFICATION 2016-17
B. Pharm First Year
Applications are invited for institute level admission
against vacant seats/cancellation after CAP / CAP Minority
allotment, as per rules of Directorate of Technical
Education, Maharashtra State, Mumbai. Schedule for
admission is notified on the College notice board.
Dr. Zahid Zaheer
Principal
The advertisement published in Urdu newspaper is also similar. It is
not clear as to whether these newspapers had circulation outside of
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Aurangabad district.
10. The aforesaid advertisements published in newspapers
were not in accordance with Rule 13 of the brochure prepared by the
statutory committee. Number of seats which were lying vacant after
CAP rounds and the schedule for filling these seats was not given.
There is nothing on the record to show that the brochure of the
institution for that year was published prior to the date of
advertisements and it was placed on the website. The letter of
competent authority dated 1.8.2016 shows that for these rounds,
strict compliance of Rule 3 and 13 of the brochure prepared by the
statutory committee was expected from the institution. There was no
such compliance made in the present matter.
11. The learned counsel for the applicants placed reliance on
some correspondence made by this college with University. Copy of
letter of University dated 25.11.2016 is produced on the record and
it shows that for the academic year 2016-17 list of 116 candidates
was supplied by this college to the University to inform that they
were admitted for first year course. This list was approved by the
University. The submissions made and the record show that around
40% of the seats were filled after CAP rounds. The last candidate
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who got admission in this round, had secured only 47 marks out of
150 marks.
12. The learned APP took this Court through the other
correspondence made by the applicants with Deputy Director of
Technical Education, the competent authority. The letter dated
5.3.2018 of the competent authority shows that for the year 2016-
17 list of only 96 candidates was supplied to the competent authority
and this list was approved. The correspondence further shows that
only 65 students for the first year were approved during CAP rounds
and the remaining candidates were for the other academic years.
Thus, complete information was not supplied to the competent
authority by the applicants and there is allegation that it was done
intentionally, so that the institution was able to do illegal things in
respect of the remaining seats. There are allegations that separate
record was prepared for other students.
13. It is the case of the applicants that after CAP rounds (i)
to (iv), 167 students applied directly to the college and out of those
students, the candidates who paid the fees were admitted and for
them the inter-se merit was followed. This submission of the
applicants cannot be accepted at this stage. It is already observed
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that there was no compliance of provisions of Rule 13 prepared by
the statutory committee. Further, even in the list of this round
supplied by the college, the students who had approached to the
institution and who had secured more than 100 marks like Kasliwal
who had secured 115 marks and Pokharana who had secured 107
marks were not admitted. Further, more than 100 students had
secured more marks than the last candidate Shaikh. It is already
mentioned that the last candidate Shaikh had secured 47 marks.
Thus, more than 100 students who were more meritorious and when
many of them were from minority community were not given
admission even when on the basis of aforesaid short advertisement
they had approached the college. Thorough investigation in to that is
necessary.
14. The aforesaid circumstances are sufficient to infer that
due to not following the proper procedure, information was not
reached to the students who intended to take admission to this
course in this college. The learned counsel for applicants submitted
that no student, who was more meritorious has made complaint.
This submission cannot be accepted at this stage. The interim order
made by this Court shows that this Court has prevented the
investigating agency to file the chargesheet. Many times, the
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investigating agency take such order as order of prevention to do
anything. When institution like the present one is involved, not many
persons dare to go against such institution. There are very few
persons and students, who have resources and courage to make
such complaints. The record itself also can speak about the
intentions, but that record of admission is not yet collected by the
police during investigation. Some copies of lists produced by the
institution in the present matter cannot be accepted as they are. It
is very easy in such case to read between the lines and that needs
to be done in the present matters. Thus, there was illegality and
irregularity in giving admissions in the round in which the students
were given admissions from Sr. No. 66 onwards and that needs to be
investigated. That is a fraud on the society and such act destroys
careers of meritorious students. Less meritorious students come in
the field of medicine and that affects adversely the entire society.
15. Other allegation that from many students fees of entire
course, four academic year, was collected in advance is not disputed.
But, the fees in advance from more than 40% of students was
collected by the college and there are specific allegations in that
regard against the applicants. It will be interesting to ascertain as to
whether all of them were are from the list of the last round. As per
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the procedure given by Fees Regulatory Committee and also as per
the provisions of the Act, against capitation fees, the fees cannot be
taken in advance for all the four academic years. Such collection of
fees amounts to taking capitation fees. The learned counsel for
applicants submitted that as per the Special Act, only students or
aggrieved persons can give complaint and so, in the present matter,
complaint cannot be entertained. This submission is not acceptable.
Even the competent authority can take action in such cases. The
papers of the present matter show that the competent authority has
grievance about the procedure followed. Few admissions are not yet
approved by the competent authority. Further, when there is one
cognizable offence and others are non cognizable offences, all the
offences can be treated as cognizable offences. Complaint can be
accepted during investigation and such students can come forward.
Investigation is still in progress.
16. The aforesaid two circumstances show that there is
substance in the allegations made against the applicants. The
aforesaid material and the circumstances are sufficient to make out
prima facie case for the allegations, for the offences that merit was
not followed, the procedure was not followed, more amount of the
nature of capitation fee was collected and offence of fraud against
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the meritorious students and against the society is also committed.
17. Other allegation like sanction/permission to admit more
students than 100 need not be considered at this stage. It appears
that the dispute about the authority of two institutions like Pharmacy
Council of India and AICTE for pharmacy colleges is pending in the
Supreme Court. It appears that this Court has granted stay in favour
of the institutions and the permission granted by AICTE to admit 120
students is in existence due to stay order made by this Court. In
view of these circumstances, this point, allegation made in that
regard need not be considered. Further, even if that allegation is
ignored, the aforesaid allegations cannot be ignored and they can be
considered independently.
18. For the reasons given, this Court holds that detail
investigation needs to be made in the aforesaid allegations. It
involves fraud, creation of false record, use of record containing
incorrect information to the competent authority and also the
commission of the offences under the Act. No relief can be granted
in favour of the applicants as there are specific allegations against
them in respect of commission of the aforesaid offences. In the
result, both the proceedings are dismissed. Interim relief is vacated.
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A request made for continuation of interim relief granted earlier is
rejected. The investigation should go on.
[K.L. WADANE, J.] [T.V. NALAWADE, J.]
ssc/
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