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C/M. SMT. HER PYAREE DEVI DEGREE COLLEGE THRU' SECRETARY versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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C/M. Smt. Her Pyaree Devi Degree College Thru' Secretary v. State Of U.P. And Others - WRIT - C No. 10809 of 2006 [2006] RD-AH 9291 (10 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                              Judgment reserved on 21.4.2006

                                                                 Judgment delivered on 10.5.2006            

                   Civil Misc. Writ Petition No. 10809 of 2006

Committee of Management Smt. Her Pyareee Devi Degree College Ruhai District Mahamaya Nagar/Hathras through its Secretary Pradeep Kumar.

                                                                                          Petitioner

                                             Versus

State of U.P. and others                                                     Respondents

                                         Connected with:

                        Civil Misc. Writ Petition No. 10805 of 2006

Committee of Management Smt. Her Pyareee Devi Degree College Ruhai District Mahamaya Nagar/Hathras through its Secretary Pradeep Kumar.

                                                                                          Petitioner

                                             Versus

State of U.P. and others                                                     Respondents

                        Civil Misc. Writ Petition No. 15001 of 2005

Committee of Management Smt. Her Pyareee Devi Degree College Ruhai District Mahamaya Nagar/Hathras through its Secretary Pradeep Kumar.

                                                                                          Petitioner

                                             Versus

State of U.P. and others                                                     Respondents

Counsel for the petitioner:-   Sri Yogesh Agarwal, Advocate

Counsel for the respondents:- the Standing counsel and

                                               Sri Anil Tiwari, Advocate

                                               

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

Writ Petition No. 15001 of 2005, Committee of Management Smt. Her Pyareee Devi Degree College Ruhai District Mahamaya Nagar/Hathras through its Secretary Pradeep Kumar vs. State of U.P. and others has been filed for a direction in the nature of mandamus directing respondent nos. 2 to 6 to permit the students of B.A.Part I of the said college to appear in the examination, 2005 and also for a direction to respondent nos. 2 and 3 to consider the renewal of the petitioner's college on the basis of submission of the report by the Inspection Division of Dr. Bhim Rao Ambedakar University.

Writ Petition No. 10805 of 2006, Committee of Management Smt. Her Pyareee Devi Degree College Ruhai District Mahamaya Nagar/Hathras through its Secretary Pradeep Kumar Vs. State of U.P. and others   has been filed for issuance of a writ, order or direction in the nature of mandamus directing respondent nos. 2 to 5 to permit the students of B.A. part I of the said Degree college to appear in the examination of March, 2006 respectively and for renewal of affiliation of the petitioners' college on the basis of submission of the Inspection report.  

The petitioner is a degree college. It was affiliated to Dr. Bhim Rao Ambedkar University, Agra in 1998 temporarily for a period of three years w.e.f. 1.7.1998 to 1.7.2001. The temporary affiliation was extended for a period of three years up to 30.6.2004.

Before the expiry of the period of aforesaid temporary affiliation a panel was constituted by the Vice-Chancellor vide order-dated 3.3.2004 for inspection of the college facilities for grant of further/permanent affiliation to the college. The affiliation came to an end on 30.6.2004. The University vide order dated 20th July, 2004 directed the college not to take any admission without getting affiliation and a reminder was also sent to the college on 18th September, 2004 in this regard.

In the mean time, the college took admission of B.A. Ist year students who were admitted in session 2004-05, for B.A. IInd year students who were admitted in B.A. Part I in session 2004-05 and for B.A. Ist year session 2005-06.

Writ petition no. 15001 of 2005 was filed by 134 students of B.A. Ist year for permitting them to appear in the University examination scheduled to be held from 15.3.2005 in which the following order was passed on 9.3.2005.

" The contention of Shri Rudheshwari Prasad counsel for the petitioner is that the college was granted temporary affiliation up to 2004 with Dr. Bhim Rao Ambedkar University, Agra and the application for permanent affiliation is pending with the University but no orders have been passed thereon and that on account of inaction on the part of the University causing delay, the students of the college are suffering as their examination are to commence from 15.3.2005 and they will not be allowed for no fault of the students.

       Shri Pankaj Mittal counsel for the University prays for and is granted three weeks time to file counter affidavit. Petitioner will have three weeks thereafter to file rejoinder affidavit.

       In the circumstances, the candidates of the petitioner's college are permitted to appear in the B.A. Part-I examination of the University Board examination provisionally which it is stated are to commence from 15.3.2005. However, the result of these students will not be declared.

      Let a certified copy of this order be supplied to the learned counsel for the petitioner on payment of usual charges today.

   Hon. J. Sahai,J.

                                                                                                  9.3.2005."

It is also submitted that the Court by order dated 30.3.2006 in writ petition no. 10805 of 2006 has permitted the aforesaid students who were admitted in B.A. Ist year to appear in B.A. IInd year examination

A supplementary affidavit has been filed by the petitioner on 27th March, 2006 in the Registry that it is reliably learnt that the result of B.A. Ist year 2004-05 has been prepared by the University and has been sent to the petitioner college. The Photocopy of the result has been appended as Annexure-SA-1 to the supplementary affidavit.  It is also averred that the students of B.A. Ist year who have not succeeded in previous year have been issued Admit Cards for re-examination and that the programme for examination of B.A. Ist, II and III years commenced. It is stated that from the scheduled programme it is evident that examinations of B.A. Ist year are scheduled to commence from 27.3.2006 and of B.A. Part II w.e.f. 5.4.2006.      

 This writ petition has now been filed for a direction in the nature of mandamus directing the respondents to permit the students of B.A. Part I who have been given admission in session 2005-06 to appear in the examination conducted by the University scheduled to be held in March, 2006. The case set-forth by the petitioner college was that the students were admitted by the college in B.A. Ist year in anticipation of affiliation in pursuance of the panel of inspection constituted vide order dated 3.3.2004. However, inspite of the constitution of panel, no steps were taken by the University for verifying the facilities of the college for the purpose of further affiliation.

It is stated that there are 140 regular students of B.A. Part I in the college who were granted admission in July, 2005in anticipation of extension of the affiliation in view of letter dated 3.3.2004 of the University.

Thereafter the petitioner college submitted representation dated 7.2.2005 to the Vice-Chancellor interalia, that no inspection has been made by the Committee constituted by the University for the purpose of inspection and examining the facilities for grant of affiliation as such the matter of extension of affiliation of the college is still pending.   It was also informed by the college to the Vice-Chancellor that admissions of B.A Ist year students have already been taken by the petitioner in July, 2005 and that report of the Higher Education Officer who has already inspected the college is still awaited. It was further informed that since the report has not been submitted by the Higher Education Officer it was in the interest of the students of B.A. Ist year to permit them to appear in the examination scheduled to be conducted in March, 2006 and requested that the committee constituted by the University may inspect the Institution in order to regulate the recognition for session 2005-06.                                                                

In the rejoinder affidavit it has been stated that the facts enumerated in the counter affidavit are repetition of the facts in the counter affidavit filed in writ petition no. 1805 of 2006 as such no detailed rejoinder affidavit is being filed in this case and the facts stated in the rejoinder affidavit filed in writ petition 10805 of 2006 may be read in this case also.

It is vehemently contended by the counsel for the petitioner that the action of respondent no.3, Registrar Dr. Bhim Rao Ambedkar University, Agra in not getting the facilities of the college inspected for affiliation inspite of constitution of committee in this regard which is wholly illegal, arbitrary and against the principle of natural justice and that the students can not be deprived to appear in B.A. Part I examination scheduled to be conducted in March, 2006.In the aforesaid backdrop it is prayed that respondent nos. 2 to 5 may be directed to make proper recommendation within a stipulated period to enable the aforesaid examinees to appear in the examination.

The counsel for the petitioner places reliance upon the case of L. Hirday Narain Vs. Income Tax Officer, A.Ward, Bareilly, ITR Vol.78, 1970 page-26 and submits that mere power is conferred by statute on any authority, accompanied by duty as such the authority can not shirk from duty and restrain from exercise of the power vested in him.

It is then urged that when no statutory limitation has been imposed for doing an act, it is necessary that the work must be completed within a reasonable period of time as has been held in the case of Regional Provident Fund Commissioner Vs. K.T. Rolling Mills Pvt. Ltd., AIR 1995 SC-943 and in this view of the matter the University /inspection panel was bound to have inspected the petitioner institution so that right to education of the students guaranteed under the Constitution is not affected and in fact the students can not be made to suffer for the deliberate and willful act of the University in sitting tight over the matter inspite of the several reminders sent by the college and he can not play with future of the students.

          The counsel for the petitioner submits that the counter affidavit filed by the University does not accompany any material showing that the panel of inspectors took any action for the purpose of inspection, hence the petitioner is not guilty of non-cooperation of putting any hindrance in the path of inspectors. He has placed reliance upon the case of Bharat Singh and others Vs. State of Haryana and others, AIR 1988 SC-2128 in which it has been held that facts stated in affidavit have to be accompanied with the material on which reliance is placed.  

The counsel for the petitioner has drawn the attention of the Court to  Section 37 of the State Universities Act which requires that affiliated college is duty bound to furnish reports, returns and other particulars  "as the Executive Council or the Vice-Chancellor  may call for."   It is submitted that it is fundamental principle of law that a party can not be held guilty for the mistake committed by the other party as such the petitioner is not liable to suffer merely because the University did not choose to discharge its function under the statute.  Sri Yogesh Agarwal, counsel for the petitioner has placed strong reliance upon Aligarh Muslim University Vs. Mallya in which it has been held that the interest of the students is pre-dominant and they are not liable to suffer due to the mistake of the University. He has also placed reliance on an unreported case in Special Appeal No. 49/2006 in which the Division Bench of this Court vide judgment and order dated 12.1.2006 has held that the management should not be harassed.

It is urged by the counsel for the petitioner that the aforesaid law has been pronounced for avoiding double affiliation and that the principle that the university is liable to act fairly and justly and not take advantage of its own wrong is equally applicable to the present case.

It is then urged that the petitioner has filed a supplementary affidavit bringing to the notice of this Court that the University is itself treating the students admitted and have allowed them to appear in the examination of B.A. Part I in accordance with law. He states that the University has itself informed the college about the result of the candidates who have already appeared in B.A.I and that the students who had failed in B.A. Part-I have been permitted to appear in the supplementary examination.

It is submitted that no counter affidavit to the supplementary affidavit has been filed, as such the averments contained therein to the effect that the University is treating the students to have been admitted in the college affiliated to it and has declared the results of the students and has also permitted them to appear in the supplementary examination which is contrary to the stand taken by it. It is vehemently urged that the collage has not been affiliated as such approbation and reprobation cannot be permitted simultaneously and the students who have already been admitted in B.A. I in July 2005 are entitled to the relief of appearing in the examination of B.A. I conducted by the University.

Per contra the stand of the University is that a college can not take any admission for the degree course without there being any affiliation with the University which is mandatory in view of Section 37(2) (second proviso) and Section 37(10) read with clause 12.17 of the U.P. State Universities Act, 1913.

The counsel for the respondent University has referred to the averments made in the counter affidavit wherein it has been averred that the college was directed to get the inspection conducted within 10 days but as the inspection of the college could not be carried the period of affiliation expired as such the University can not be directed to take examination of the students admitted in an unaffiliated college otherwise it would amount to a direction to do something which is against the Act by which the University is created.

It is contended by the counsel for the respondents that if the college is not affiliated and it has taken admission of some students in anticipation of affiliation then in that case such students are not entitled to appear in the examination conducted by the University. It is further urged that principle of equity can neither be claimed nor apply against the rule of law as has been held in C.B.S.E. Vs. P. Sunil Kumar, (1998) 5 SCC-377 and in the case of Medical Council of India Vs. Rajeev Gandhi University of Health Sciences 2004 (6) SCC-76 it has been held by the Hon'ble Supreme Court has held that for such college interference should not be exercised repeatedly as such the college ought not to have given any admission in anticipation of further extension of affiliation.

         The counsel for the respondents has placed reliance upon the following case laws in support of his contentions.

1. Secretary Maharashi Dayanand Arya Shiksha Mahavidyalya Vs. State of Bihar, 1993 Supp. 1 SCC-436;

2. T.N. Dr. M.G.R. Medical University Vs. Meenakshi Trust 1995 Supp.(4) SCC-699;

3. Dental Council of India Vs. Harpreet Kaur Bal, 1995 Supp. (1) SCC-304;

4. C.B.S.E. Vs. P. Sunil Kumar, (1998) 5 SCC-377;

5. Bhagwan Budh Primary Teachers Trainining College Vs. State of Bihar, 1990 Supp. SCC-722;

6. State of T.N. Vs. St. Joseph Teachers Training Institute, 1991 3 SCC-87;

7. State of Maharashtra Vs. Vikas Sahebrao Roundale, 1992 4 SCC-435;

8. Council for Indian School Certificate Examination Vs. Isha Mittal, 2000 7 SCC-521;

9. Regional Officer, CBSE Vs. Sheena Pethambaran, 2003 7 SCC-719;

10. Medical Council of India Vs. Rajiv Gandhi University of Health Sciences, 2004 6 SCC-76; and

11. Maharishi Dayanand University Vs. M.L.R. Saraswati College of Education, (2000) 7 SCC-746.

The core of contention of affiliation is between the University and the college in which the students have no role to play. They are victims of circumstances. I have given my anxious thought to the varied contention of the counsel for the parties and have considered the case laws relied upon by them in support of their case.

The petitioner has relied upon the following cases in support of his contentions.

1. L. Hirday Narain Vs. Income Tax Officer, A. Ward, Bareilly, 1970 ITR Vol.78 page-26;

2. Regional Provident Fund Commissioner Vs. K.T. Rolling Mills Pvt. Ltd., AIR 1995 SC-943; and

3. AIR 19 88 SC-2181 Bharat Singh and others Vs. State of Haryana and others.

        The case of L. Hirdaya Narain (Supra) was with regard to rectification of mistake in that case. The petitioner and his all the sons were members of a Hindu Undivided Family and partition between him and his sons had taken place on November 19, 1949. Thereafter, the wife gave birth to another son on April 8, 1950. Notwithstanding the partition the Income Tax Officer assessed the income for the period October 1, 1949 to September 30, 1950 as income of the Hindu Undivided Family. In that case writ petition filed before the High Court was dismissed in view of the remedy by way of revision to the Commissioner. On appeal the Hon'ble Supreme Court has held that-

    " (i) since H received a share in the properties of the Hindu undivided family of which he was a member and before the previous year expired his wife gave birth to a son the income accruing between November 19, 1949, and September 30, 1950, could not be assessed in his hands as an individual. Nor did the Appellate Assistant Commissioner direct that the status in which the income for that period had to be assessed be altered. Section 16(3)(a)(ii) did not apply and the income of the minor children of H could not be included in the income of H assessed as a Hindu undivided family,

(ii) That in H's application under Section 35 for rectification the Income- Tax Officer could not suo motu modify his status without giving an opportunity to establish that the order assessing him in the status of a Hindu undivided family was correct."

       It is also held by the Hon'ble Supreme Court because a revision application under Section 33 A could have been moved, but was not moved, that would not justify the High Court in dismissing as not maintainable the petition which was entertained and heard by it on the merits.

       It is in the aforesaid backdrop that the Hon'ble Supreme Court had  held that-

    " If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party, interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right-public or-private of a citizen."

    While reversing the judgment of the High Court the Hon'ble Supreme Court has held that-

    " the power to rectify the order of assessment conferred on the Income Tax Officer by Section 35 is to ensure that injustice to the assessee or to the revenue may be avoided. It is implicit in the nature of the power and its entrustment to the authority invested with quasi-judicial functions under the Act, that to do justice it shall be exercised when a mistake apparent from the record is brought to his notice by a person concerned with or interested in the proceeding. That power is not discretionary and the Income Tax Officer can not, if the conditions for its exercise were shown to exist, decline to exercise it."

   Regional Provident Fund Commissioner Vs. K.T. Rolling Mills Pvt. Ltd. was the case under the Employees' Provident Funds and Miscellaneous Provisions Act, 1951 wherein the question of limitation for recovery of damages under Section 14-B was considered. There being no period of limitation under the aforesaid Section it was held by the Hon'ble Supreme Court that power has to be exercised within a reasonable period. In this background the Hon'ble Supreme Court has held that-

        " There can be no dispute in law that when a power is conferred by statute without mentioning the period within which it could be invoked, the same has to be done within a reasonable period as all powers must be exercised reasonably, and exercise of the same within reasonable period would be fact of reasonableness."

      The case of Bharat Singh and others was a case under the Land Acquisition Act. In that case the Hon'ble Supreme Court has noticed that although the point as to profiteering by the State was used in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof. The point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDS.  The Hon'ble Supreme Court  in these circumstances has opined that-

        " In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and proved such facts by evidence which must  appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But in-spite of that we have entertained it to show that it is devoid of any merit.

                 

     The case of Managing Committee of Bhagwan Budh Primary Teachers Training College and another Versus State of Bihar and others (supra) is some what related to the controversy in the present case. The question therein was regarding grant of recognition to the education wherein a practice has been adopted by the Institution in the aforesaid case. Relying upon the case A.P. Christians Medical Educational Society Vs. Government of A.P. (1986) 2 SCC 667:AIR 1986 SC 1490   it has been held:

         

" We do not think that we can possibly accede to the request made...on behalf of the students. Any direction of the nature sought for...would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by out fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws."

           In State of T.N. v. St. Joseph Teachers Traning Institute, (1991) 3 SCC 87: JT 1991 (2) SC 343, the High Court of Madras while dismissing the writ petitions filed by unauthorized educational institutions, gave direction to admit the students for the examination. This Court held that the direction of admitting students of unauthorized educational institutions and thus seeking direction for permitting the students to appear at the examination has been looked with disfavour by this Court. It was held that since the students of unrecognized institutions were legally not entitled to appear at the examination conducted by the Education Department of the Government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. Accordingly the appeal was allowed and the direction issued was set aside.

       In Students of Dattatraya Adhyapak Vidyalaya v. State of Maharashtra, in SLP No. 2067 of 1991, decided on 19-2-1991 the Hon'ble Supreme  Court held thus :

           "We are coming across cases of this type very often where allegations are made that innocent students are admitted into unrecognised schools and are made to suffer. Some courts out of compassion occasionally interfere to relieve the hardships. We find that the result of this situation is total indiscipline in the field of regulation."

          In Andhra Kesari Educational Society v. Director of School Education, (1989) 1 SCC 392: 1988 Supp 3 SCR 893, relied upon by the counsel for the respondents, no doubt this court directed the Government to consider whether the students in the appellant's college have undergone the necessary B.Ed. course and has permitted them to appear in the ensuing examination and publish their results. In that case there was a long drawn history of the recognition of the institute and that the direction was issued by this Court in the special circumstances therein. Therefore, it cannot be taken as a precedent, in particular, in the light of the law laid down by this Court as stated supra.

           In (1991) 3 Supreme Court Cases 87, State of Tamil Nadu and others Vs. St. Joseph Teachers Training Institute and another with State of Tamil Nadu and others Vs. Dr. Arupappa Teachers Training Institute and others, it has been held :

       "Un-recognized institutions admitting students-Students of such Institutions not entitled to appear in public examination held by government-High court acted illegally in issuing directions to the government and the education department on humanitarian ground to hold supplementary examination for enabling such students to appear in the examination with the condition that declaration of their result would be subject to settlement of question of recognition-Such directions is destructive of rule of law-Court cannot grant relief to a party on humanitarian grounds contrary to law-Constitution of India, Articles 136, 32 & 226-Relief on humanitarian ground-Jurisprudence-Right-Nature of-Judicial review-Limits of-Rule of law-Separation of powers. Constitution of India-Article 30-Recognition to educational institutions-Minority unrecognised institutions-Not entitled to ask the Government to grant permission to its students to appear in public examination held by government-Fundamental right of the minorities to establish educational institutions of their choice is subject to State's right to prescribe regulatory provisions-Education."

The Hon'ble Supreme Court has further held that-

"Under Article 30 of the Constitution minorities based on religion or language have fundamental freedom to establish educational institutions of their own choice, but the State has right to prescribe regulatory provisions for ensuring educational excellence. Minority institutions which do not seek recognition are free to function according to their own choice, but if such an institution seeks recognition from the State, it has to comply with the prescribed conditions for granting recognition, and in that event the minority institution has to follow prescribed syllabus for examination, courses of study and other allied matters. These conditions are necessary to be followed to ensure efficiency and educational standard in minority institutions."

               The case of State of Maharashrtra Vs. Vikas Sahebrao Roundale and others In (1992) 4 Supreme Court Cases 435 was with regard to admission to B.Ed. course in an unrecognized educational institution. Writ petition filed by the students for direction from the High Court to the State Government to permit them to appear in examination and to allocate the passed candidates in a recognized institution to prosecute their further courses was held to be wrongly allowed being a direction to disobey the law.

            In 1995 Supp. (4) Supreme Court Cases 694, Tamil Nadu Dr M.G.R. Medical University Vs. Meenakshi Ammal Trust and another, it has been held :

"Passing an interlocutory order for affiliation would render the appeal in fructuous by granting in advance the main relief and making it difficult to unsettle the affairs subsequently-On the other hand refusal to pass such order would render the students' remedy in the appeal infructuous even if they finally succeeded-In such circumstances, instead of passing an interlocutory order for affiliation, held, the proper course for the High Court was to dispose of the writ appeal itself expeditiously."

            In 1995 Supp (1) Supreme Court Cases 304, Dental Council of India vs. Harpreet Kaur Bal and others, it has been held :

     " There are many pronouncements of the Supreme Court cautioning against exercise of jurisdiction characterised more by benevolence than on settled legal principles. A relief must be such as could be considered permissible in law and worked out by the application of legally recognised principles. The decision must have legitimacy of legal reasoning and should not incur the criticism of lacking objectivity of purpose and rational and legal justification. Where an educational institution embarks upon granting admissions without the requisite affiliation and recognition and the students join the institution with their eyes wide open as to the lack of legitimacy in the admission, it would be preposterous to direct the University to hold examinations for the benefit of such students. Such an order is totally unjustified.

        The High Court should have instead directed the Union of India to forward the application for recognition stated to have been submitted sometime ago by the institution to the Dental Council of India and, in turn, directed the Dental Council of India to consider that application and decide within a time-frame whether it would accord the recognition or not. These were the only permissible reliefs grantable in the case."

                  To the same effect is the case of C.B.S.E. and another Vs. P. Sunil Kumar and others, (1998) 5 Supreme Court Cases 377 in which it has been held that-

"Education-Affiliation-Institutions not receiving affiliation of CBSE-High Court by interim order permitting the students studying in such institutions to appear at the examination conducted by the CBSE and directing the CBSE to issue certificates to those students on the basis of their result in the examination at which they appeared pursuant to the interim order-Held, interim order being in contravention of the rules and regulations of the CBSE, High Court was not justified in issuing the same as it would tantamount to subversion of law-Practice of allowing students to appear provisionally in the examination of the Board or the University and then ultimately regularizing the same by taking a sympathetic view of the matter deprecated-CBSE having never held out directly or indirectly to the students that the institutions in which they were prosecuting their studies had been affiliated or were going to be affiliated in near future, High Court's order based on misplaced sympathy in favour of the students cannot be sustained-Contention that the students having been permitted to appear at the examination and they having been successful and certificates having been issued in their favour, it would work out great injustice, if the impugned directions of the High Court are set aside at this length of time has no substance-Examinations-Court's direction permitting students to appear on sympathetic grounds-Propriety-Administrative Law-Promissory estoppel-Universities-Affiliation-Constitution of India, Art. 226-Interim orders-Relief-Propriety"

              To the same effect is the case of Council For Indian School Certificate Examination Vs. Isha Mittal and another,  (2000) 7 Supreme Court Cases 521, in which it has been held :

"High Courts do not permit High Court to pass an order which is contrary to law-High Court passing interim order in writ petition granting relief which could have been granted finally-Appellant council filing special appeal which dismissed by High Court on reasoning that "if the career of the student had not been involved, this Court would have certainly interfered with such orders, but after declaration of the result and issuance of the marks-sheet, the petitioner might have taken admission in any university or college" and that if the appeal were allowed "the entire career of the student would be adversely  affected"-Held, if the law was in favour of appellant Council, High Court was obliged to issue an order in its favour-Considerations of equity do not permit High Court to pass an order contrary to law-constitution of India, Art. 226-Interim/Interlocutory orders-Ought not to grant relief which can only be granted at the time of final decision-Education-Examinations-Declaration of result by court order"

                   In 2000 (7) Supreme Court Cases 746, Maharishi Dayanand University Vs. M.L.R. Saraswati College of Education, it has been held:

    "Selection of lecturers (ad hoc) of B.Ed. College affiliated to a University without participation of a representative of the University and of Director of Higher Education-Validity-Held, invalid-More so when no advertisement for the selection was published and the Selection Committee proceedings and the list of candidates were not sent to the University-"Norms and Standards for Teacher Education" issued by NCTE, para 2.5-UGC notification regarding standards, 1990, paras 3.1.0, 3.3.0 & 4.4.1-National Council of Teacher Education Act, 1993, S. 12-Maharishi Dayanand University Statutes, paras 9, 4, 6, 7 and 2-Universities-Recruitment-Teachers-Teachers of affiliated B.Ed. college-Selection of-Validity

       Students admitted in contravention of statutory provisions-Disentitlement of such students to the result of examination-Exception-An affiliated B.Ed. College selecting a certain number of ad hoc lecturers without following the requisite procedure-Subsequently, on the basis of such appointments and applying the teacher-student ratio of 1:10 as prescribed by NCTE getting extra seats sanctioned by NCTE without obtaining necessary permission from the University-NCTE communicating its decision to the University-University, thus having come to know the matter, refusing permission for the admission of extra students-In such circumstances, High Court's order directing the University to permit the admission of such students, held was contrary to the guidelines of NCTE and the University statutes-However, since in the instant case non-impleadment of NCTE was a bar to the quashment of its orders and the extra students in question had already completed the two-year course, paid the examination fee and were allowed by the University to take the examination, Supreme Court directing their results to be released-Universities-Examinations-In the peculiar facts and circumstances of the case, results of students unlawfully admitted, directed to be released-Education-Examinations-Students illegally admitted when entitled to result of."

              The last case relied upon by the counsel for the respondents is Medical Council of India Vs. Rajiv Gandhi University of Health Sciences and others In (2004) 6 Supreme Court Cases 76. The question of renewal of permission for medical college was before the Hon'ble Supreme Court. In that case delay in granting/non-granting of consequently seats (for MBBS course) of medical college could not be included in the seat matrix. The High Court issued interim order to Government to include seats of respondent's medical college and make admissions for the academic year in question subject to condition inter alia that in the event of Govt.'s refusal to grant renewal, students or the institution should not claim equities. The Hon'ble Supreme Court has held that-

   "High Court's approach should be very cautious and interim order should not be granted as a matter of course, particularly when permission or renewal is subject to provisions of the statute viz. Medical Council Act-When fore earlier year permission had not been granted by Medical Council of India, High Court should not issue interim order directing admission of the students-High Court should direct the Council to take expeditious decision on the application of the institution and take final decision thereon, instead of renewing the permission year after year-Medical Council Act, 1956, S. 10-A."

   

 In so far as writ petition nos. 15001 of 2005 and 10805 of 2006 are concerned, admittedly the students had been granted permission by the University to appear in B.A. Ist year examination as affiliation was existing at that time and those students who had passed the B.A. Ist year were also permitted to appear in B.A. IInd year examination by the University in view of the interim order dated 9.3.2005 passed by this Court. All those students who had been admitted in B.A. Ist year examination till the college was affiliated with the University have been permitted to complete their B.A. final examination. The aforesaid writ petitions on the admitted facts have become infructuous.

The short question in this case arises as to whether the students who had been admitted by the college when it was not affiliated with the University because of in anticipation of the affiliation by the Vice-Chancellor are entitled to obtain degree by the University. Admittedly, the University had given clear directions vide letter dated 20th July, 2004 not to permit any person until and unless the college is granted affiliation. The affiliation had come to an end on 30.6.2004. The students who had been admitted in B.A. Ist year by the college in anticipation of affiliation when in fact the college had not been in affiliation with the University, have no legal right to obtain degree by the University as they are not bonafide students of the said college. The matter of the students who have been admitted in B.A. Ist year after 30th July, 2004 is thus stands on different footing than those students who had been admitted earlier by the college. The dispute is now thus between the college and the students. The college has taken the admission of the students willingly and knowingly that it no longer enjoys affiliation with the University.

Many colleges are playing with the future of the students and are admitting the students without there being any affiliation or in anticipation of affiliation. At the most these colleges either itself or on behalf of the students are filing writ petitions at the last moments playing upon the sympathy of the courts that the students may be permitted to appear in the examination conducted by the University to save an academic session of the student which would be wasted if the courts do not immediately interfere.

 If such sympathies are allowed, it would amount to render injustice to the education system as has been held by the Hon'ble Supreme Court in A.P. Christians Medical Educational Society (supra).  

The cases of State of T.N. v. St. Joseph Teachers Traning Institute,  ( supra )87: JT 1991 (2) SC 343 and 1995 Supp (1) Supreme Court Cases 304, Dental Council of India vs. Harpreet Kaur Bal and others   squarely cover crux of the matter involved in this case wherein it has been held that the direction of admitting students of unauthorized educational institutions and thus seeking direction for permitting the students to appear at the examination has been looked with disfavour by this Court. It was held that since the students of unrecognized institutions were legally not entitled to appear at the examination conducted by the Education Department of the Government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination.  The Hon'ble Supreme Court has observed that we find that the result of this situation is total indiscipline in the field of regulation.

      I am of the view that the students admitted by the unrecognized college are not entitled to appear in the examination held by the University.   They are not beonafide students of the University, hence the University can not be directed to either take their examination as its students nor can be directed to award degrees to them. Such student must take admission in private college after making thorough enquiry. A relief which is not permissible in law should not be granted and worked out by the application of legally recognized principles. The decision must have legitimacy of legal reasoning and should not incur the criticism of lacking objectivity of purpose and rational and legal justification. Where an educational institution embarks upon granting admissions without the requisite affiliation and recognition and the students join the institution with their eyes wide open as to the lack of legitimacy in the admission, it would be preposterous to direct the University to hold examinations for the benefit of such students. Such an order is totally unjustified. The High Court should have instead directed the Union of India to forward the application for recognition stated to have been submitted sometime ago by the institution to the Dental Council of India and, in turn, directed the Dental Council of India to consider that application and decide within a time-frame whether it would accord the recognition or not. These were the only permissible reliefs grantable in the case as has been held in ental Council of India vs. Harpreet Kaur Bal (supra),

 However, in the facts and circumstances of this case, the University is directed to send Inspection committee within 15 days from the date of submission of a certified copy of this order for inspection of the college facilities and shall submit its report within 15 days thereafter. The recommendation so submitted by the Inspection Committee shall be considered and decided by the Chancellor within a period of one month thereafter. The students who have suffered because of taking admission in the college, if they so desired, may move appropriate court for compensation for loss of academic session by the college.

             For the reasons stated above Writ Petition nos. 15001 of 2005 and 10805 of 2006 have  become infructuous. Writ Petition no. 10809 of 2006 is dismissed.

Dated

CPP/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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