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Anurag Kumar Tiwari & Others v. State Of U.P. Thru' Secy. Uchcha Shiksha & Others - WRIT - C No. 16614 of 2005 [2005] RD-AH 7308 (12 December 2005)


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).


Reserved on 24.11.2005

Delivered on 12.12.2005

Civil Misc. Writ Petition No. 16614 of 2005

Anurag Kumar Tiwari & others


State of U.P. and others

Hon'ble V.K. Shukla,J.

Petitioners in the present writ petition have approached this Court for issuing writ in the nature of mandamus commanding the respondents-University to forthwith make  available examination forms to the petitioner and further to permit the petitioner to fill the said examination forms and further to permit the petitioners to undertake the examination of B.Ed. Course commencing from 17.03.2005.

Brief facts as mentioned in the writ petition is that in the District of Kanpur Nagar there is a college known as Sri Shakti Degree College, Sankhahari, Post Harbaspur, Tehsil Chatampur District Kanpur Nagar affiliated to Chhatrapati Sahuji Maharaj University, Kanpur. It has been contended that National Council for Teacher Education accorded permission to the institution in question in Academic Session 2003-04 for running B.Ed. Course with strength of 100 seats. Said affiliation has been accorded under the Self Financing Scheme. Pursuant there to applications were invited and petitioners contend that pursuant to the same they have applied and were accorded admission and they have also undertook the practical examination. However respondent-University issued only 89 examination forms and qua 11 candidates no examination forms were issued, as such at this juncture present writ petition has been filed.

Petitioner have further contended that on five occasions counseling were conducted by the respondent-University and each and every student recommended by the University were accorded admission and their admission have been made against unfilled seats and as such by no stretch of imagination they could be deprived examination.

Counter affidavit has been filed on behalf of respondent-University and therein it has been contended that there are about 80 colleges affiliated to the said University which are running B.Ed. Course. State Government issued Government Order dated 14.12.1999 regulating admissions under Self Financing Scheme in the field of Higher Education and said Government Order shows  University will make available to the students to the affiliated colleges  on the basis of joint Entrance examination conducted by the University. Thereafter if some seats are remained unfilled then institution shall inform the University about the vacancy and demand second list of candidates and if the University is unable to provide them list within a week then the non-Government institutions and the private institution may admit the students at their own level and then they will fix the same minimum qualification which has been decided by the University. Said Government Order contains percentage of admissions to be made in the institute in different categories as per said Government Order 50% seats shall be normal (Free Seats), 35% Seats shall be supporting (Paid Seats) and 15% Seats shall be NRI sponsored seats. It has been contended that the admissions were being made in conformity of aforesaid Government Order. Thereafter dispute arose with regard to  admission in minority and non-minority institution and the mode of admission and percentage of seats etc and the said dispute was sought be adjudicated by Hon'ble the Apex Court in the case of T.M.A. Pai Foundation and others Vs. State of Karnataka and others  by means of judgment dated 31.10.2002. It has been contended that thereafter State Government inconformity of the said judgment has issued fresh Government Order dated 27.05.2003 superseding the earlier Government Order in which there were three categories of seats. Said Government Order has again been clarified by Government Order dated 02.07.2003 by providing that  with regard to the admission process and fee fixation all earlier Government Orders are superseded and shall have no effect. It has been contended that in term of Government Order dated 02.07.2003 85% admission in professional course shall be strictly made by the State Government through single window system and remaining 15% seats shall be made by the Management after taking approval from the concerned University adopting the transparent and logical admission. Reference thereafter has been of Hon'ble Apex Court of its subsequent judgment in the case of Islamic Academy of Education & another Vs. State of Karnataka and others   and clarifications made pursuant thereto by means of Government Order dated 09.09.2004. In paragraph-2 of the aforesaid Government Order same arrangement has been repeated in paragraph-1. It has been thereafter contended that petitioners having being accorded admission by placing reliance on Government Order dated 14.12.1999 whereas said Government Order is not at all existence, as such petitioners have been wrongly accorded admission, as such no interference is warranted by this Court.

Rejoinder affidavit has been filed and therein statement of facts mentioned in the counter affidavit has been rebutted and that of writ petition has been reiterated.

After pleadings mentioned above have been exchanged, present writ petition has been taken up with the consent of the parties.

Sri Ashok Khare, Senior Advocate, contended with vehemence that in the present case each and every students whose name was recommended by the University have been accorded admission by the institution in question and the recommendation made by the University has ever been dishonored and disregarded and as seats were lying vacant, as such admission were rightly made in transparent manner and consequently directives be issued for declaration of the result of the petitioner.

Sri Neeraj Tewari, Advocate, on the other hand countered the said submission by contending that in term of the Government Order holding the field admission could have been made only to the extent of 15% of the vacancy as per guidelines  prescribed in the Government Order itself and as far as reliance on Government Order dated 14.12.1999 is concerned the same has already been superseded as such no interference is warranted by this Court and writ petition is liable to be dismissed.

After respective arguments have been advanced, undisputed position which is emerging is to the effect that on presentation of present writ petition this Court passed following interim order which is being quoted below:  

"Heard Shri Ashok Khare learned senior counsel assisted by Shri S.D. Shukla counsel for the petitioner and Shri Neeraj Tiwari counsel for respondent.

It appears that there are two modes for admitting students in B.Ed in respect of a self-financed institution like the institution. Shakti Degree College in which the petitioner's are studying . 85 % the seats of the in B.Ed course are to be filled up from the candidates whose list is sent by the State Agency on the basis of entrance examination and 15 % of the seats are to be filled up by the college itself. A Government Order dated 14.12.1999 was issued whereunder it is provided that out of these 85 % seats to be filled from the candidates sent by the State Agency any seats remain unfilled after the first counselling, the institution is required to send intimation to the State Agency calling upon it to send another list and in case such list is not sent by the State Agency within one week the institution is permitted to fill the seats at its own level.  It appears that  another Government Order dated 2.7.2003 has been issued after the decision of the Apex Court in TMA Pai Foundation Vs. State of Karnataka and this Government Order  is in supersession of all earlier Government Orders on the subject. The Government Order dated 2.7.2003 reiterates that 85 % of the seats are to be filled up through State Agency whereas 15 of the seats are to be filled by the Management. The submission of the petitioner's counsel is that the institution had admitted the 11 petitioners after the three counsellings had already been done and after notice issued by the institution to the State Agency/University and as such admissions were made validly. It is also submitted that even after the third counselling further lists were sent by the State Agency/University and all the students who were ready to take admission from the said lists were given admission by the college and there remains no candidates of the State Agency University left for being admitted nor is there any candidate of the State Agency whose admission was refused by the college. The Government  Order dated 2.7.2003 it is submitted  covers a field different from the field covered by Government Order dated 14.12.1999. The government order dated 14.12.1999 covers a situation where the State Agency seats remain unfilled which is not the situation covered in the government order dated 2.7.2003. It is also submitted that admissions have been made within the sanctioned strength of 100 students.

Learned counsel for the petitioner submits that the examinations are to commence from 17.3.2005.  In view of the submissions made it is directed that the petitioners may be allowed to appear in the B.Ed Examination 2005 of the Kanpur University provisionally. The result of the petitioners however will not be declared until further orders of this court.

Learned standing counsel accepts notice on behalf of respondent no.1, Shri Neeraj Tiwari learned counsel appears for respondent nos. 2 and 3 and   Respondent no.4 and 5 are represented by Shri J.P. Singh. They pray and each are granted two weeks time to file counter affidavit. The petitioner will have two weeks thereafter to file rejoinder affidavit.

List thereafter.

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

Pursuant to aforesaid interim order each one of the petitioner undertook the examination but result of the same has not been declared. This fact is also undisputed that each and every students who had been recommended by the University had been accorded admission by the institution in question and no candidate come forward to complain that in spite of their name being recommended by the University they were not admitted by the institution in question and directives were disregarded on account of extraneous consideration. Here institution has been accorded admission to each and every candidate recommended by the university to the institution in question. This fact is also undisputed that there are 100 seats sanctioned and as far as petitioners are concerned their admission has been made well within the sanctioned strength and at no point of time any dispute has been raised that there is any ineligibility or disqualification attached to them and no candidate has come forward complaining that on a account of extraneous consideration there candidature has been ignored and deprived.  

It may be true that on the strength of Government Order dated 14.12.1999 petitioners could not have been admitted as said Government Order stood superseded in view of express language used in subsequent Government Order but holding the filed, the fact of the matter is that seats should not go waste unless and until there are complaint that recommendation made by the University were not at all respected and were disregarded with impunity. Here position is altogether different, each and every student recommended by the University had been accorded admission and petitioners were admitted against unfilled seats and no student has come forward to complain that their merit has been much higher and they have been refused to be accorded admission by the institution in question.

Recently Hon'ble Apex Court in the case of Islamic Academy of Education & another Vs. State of Karnataka and others  while deciding Civil Misc. interlocutory Application No. 96 of 2005 moved on behalf of All India Medical and Engineering Association passed following order on 23.09.2005 which is being quoted below:

"This application has been filed by the All India Medical and Engineering Colleges Association but is restricted to admission to engineering colleges. According to the applicant, as of today, no student, who had taken common Entrance Test (CET) conducted by the respective State Governments, is available for admission in the engineering colleges, which are members of the applicant's association, and number of seats are still lying vacant. The contention is that if these vacant seats are not permitted to be filled up by admitting    students on the basis of merit marks obtained on the basis of 10+2 examination conducted by the Central Board of Secondary Education (C.B.S.E,.) or other equivalent examination conducted by the State Government and who are otherwise eligible and qualified, except that they have not taken C.E.T. Conducted by the respective State Governments, all these seats would go waste. Under these circumstances, we dispose of the application by issuing the following directions;

(1) It would be open to the State Government to send the list of candidates seeking admission in engineering courses, who may have taken C.E.T.  Conducted by the State Governments/entrance test conducted by consortium colleges and have not got admission. The said list shall be sent to the engineering colleges within one week from the State Government being notified about the orders passed by this court. This order shall be notified by the applicant to the State Governments forthwith but, in any case, not later than seventy two hours. If any State Government has fixed higher standards, the same shall have to be complied with before granting admission.

(2) In case the names, as mentioned in clause (i) are received, the colleges would give admission to those students in the first instance.

(3) All remaining vacant seats are permitted to be filled up on the basis of merit marks obtained in 10+2 examination conducted by the C.B.S.E. Or other Boards.

The aforesaid directions are for the present academic year, i.e. , 2005-2006"

The basic idea for passing of the said order is that in self financing institution seats shall not go waste and arrangement shall be made for filling up the said seats. Consequently in the present case also as seats have been filled up on the same principle that the seats shall not go waste and as no complaint has been made by any candidate recommended by the University that they were denied admission and further no one has come forward complaining that his merit has been ignored in these circumstances and in this background as on the strength of interim order petitioners have already undertaken the examination, as such consequently it is hereby directed that the result of the petitioners be also declared forthwith .

With the above observations, present writ petition is allowed and disposed of.

Dated :12.12.2005




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