1 wp4863.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
(I) WRIT PETITION NO.4863 OF 2012
Ms. Syeda Aufiya Ahmad,
aged about 24 years,
d/o Shri S.S. Ahmad,
r/o Ice Factory Road,
Bajeria, Nagpur - 440 018. ... Petitioner
- Versus -
1) The Rashtrasant Tukadoji Maharaj
Nagpur University, through its
Registrar, Civil Lines, Nagpur.
2) Shri Ramdeobaba College of
Engineering and Management,
Ramdeobaba, Gittikhadan,
Katol Road, Nagpur-13.
3) The State of Maharashtra,
Higher and Technical Education
Department, Mantralaya,
Mumbai. ... Respondents
-----------------
Shri M.G. Bhangde, Senior Advocate for petitioner.
Dr. B.G. Kulkarni, Advocate for respondent no.1.
Shri G.R. Agrawal, Advocate for respondent no.2.
Shri A.G. Mujumdar, Assistant Government Pleader for
respondent no.3.
----------------
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(II) WRIT PETITION NO.4864 OF 2012
Ms. Reema Kiran Chichghare,
aged about 23 years,
r/o 10A, `Shivneri Hill Road,
Gandhi Nagar, Nagpur. ... Petitioner
- Versus -
1) The Rashtrasant Tukadoji Maharaj
Nagpur University, through its
Registrar, Civil Lines, Nagpur.
2) Shri Ramdeobaba College of
Engineering and Management,
Ramdeobaba, Gittikhadan,
Katol Road, Nagpur-13.
3) The State of Maharashtra,
Higher and Technical Education
Department, Mantralaya,
Mumbai. ... Respondents
-----------------
Shri M.G. Bhangde, Senior Advocate for petitioner.
Dr. B.G. Kulkarni, Advocate for respondent no.1.
Shri G.R. Agrawal, Advocate for respondent no.2.
Shri A.G. Mujumdar, Assistant Government Pleader for
respondent no.3.
----------------
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(III) WRIT PETITION NO.4865 OF 2012
Ms. Pooja Sudhir Pimplapure,
aged about 24 years,
c/o P.Y. Wakhare,
Plot No.183, Giripeth,
Nagpur - 10. ... Petitioner
- Versus -
1) The Rashtrasant Tukadoji Maharaj
Nagpur University, through its
Registrar, Civil Lines, Nagpur.
2) Shri Ramdeobaba College of
Engineering and Management,
Ramdeobaba, Gittikhadan,
Katol Road, Nagpur-13.
3) The State of Maharashtra,
Higher and Technical Education
Department, Mantralaya,
Mumbai. ... Respondents
-----------------
Shri M.G. Bhangde, Senior Advocate for petitioner.
Dr. B.G. Kulkarni, Advocate for respondent no.1.
Shri G.R. Agrawal, Advocate for respondent no.2.
Shri A.G. Mujumdar, Assistant Government Pleader for
respondent no.3.
----------------
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(IV) WRIT PETITION NO.4866 OF 2012
Ms. Suchitra Dinkar Vehale,
aged about 24 years,
r/o 41, Pradnya Housing
Society, Wahane Layout,
Bhamti, Nagpur - 22. ... Petitioner
- Versus -
1) The Rashtrasant Tukadoji Maharaj
Nagpur University, through its
Registrar, Civil Lines, Nagpur.
2) Shri Ramdeobaba College of
Engineering and Management,
Ramdeobaba, Gittikhadan,
Katol Road, Nagpur-13.
3) The State of Maharashtra,
Higher and Technical Education
Department, Mantralaya,
Mumbai. ... Respondents
-----------------
Shri M.G. Bhangde, Senior Advocate for petitioner.
Ms. T. Khan, Advocate for respondent no.1.
Shri G.R. Agrawal, Advocate for respondent no.2.
Shri A.G. Mujumdar, Assistant Government Pleader for
respondent no.3.
----------------
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(V) WRIT PETITION NO.4867 OF 2012
Ms. Rucha Kishor Muley,
aged about 24 years,
r/o P&T Colony, Pratap
Nagar, Nagpur - 22. ... Petitioner
- Versus -
1) The Rashtrasant Tukadoji Maharaj
Nagpur University, through its
Registrar, Civil Lines, Nagpur.
2) Shri Ramdeobaba College of
Engineering and Management,
Ramdeobaba, Gittikhadan,
Katol Road, Nagpur-13.
3) The State of Maharashtra,
Higher and Technical Education
Department, Mantralaya,
Mumbai. ... Respondents
-----------------
Shri M.G. Bhangde, Senior Advocate for petitioner.
Ms. T. Khan, Advocate for respondent no.1.
Shri G.R. Agrawal, Advocate for respondent no.2.
Shri A.G. Mujumdar, Assistant Government Pleader for
respondent no.3.
----------------
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CORAM : B.R. GAVAI AND
SUNIL P. DESHMUKH, JJ.
DATED : OCTOBER 19, 2012 ORAL JUDGMENT (PER B.R. GAVAI, J.) :
Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel for the parties.
2) By way of present petitions, the petitioners though have challenged the legality of Clause 3(a) of Ordinance No. 16 of 2009 (hereinafter referred to as "the said Ordinance") and sought a further declaration that the said Ordinance is not applicable to the admission of the petitioners, the petitioners have given up the said challenge and have restricted the claim in the petitions only insofar as prayer clause (3) in the petitions is concerned.
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3) Admittedly, all the petitioners have taken
admission to the Master in Computer Application Course (hereinafter referred to as "MCA") after completing Post B.Sc. Diploma in Computer Science and Applications. As per the said Ordinance, the candidates passing the Post B.Sc. Diploma in Computer Science and Applications examination are entitled to be admitted in the third semester directly.
Undisputedly, the petitioner in Writ Petition No.4863/2012 (Ms. Syeda Aufiya Ahmad) has completed her third, fourth, fifth and sixth semesters and also appeared for sixth semester examination.
Insofar as rest of the petitioners are concerned, all of them have completed third and fourth semesters and have now appeared for the fourth semester examination. The petitioners are aggrieved by the communication dated 28/9/2012 issued by the respondent University thereby cancelling their admission and the communication dated 29/9/2012, which is a consequential communicated issued by the ::: Downloaded on - 09/06/2013 19:18:30 ::: 8 wp4863.12 respondent College. The admission of the petitioners is cancelled on the ground that the same was in contravention of said Ordinance and specifically Clause 3(a) of the said Ordinance.
4) Shri Bhangde, learned Senior Counsel appearing on behalf of the petitioners, submits that in view of the settled position of law as could be found from the catena of the judgments of the Apex Court as well as Division Benches of this Court, if the petitioners have been admitted by the respondent College and if the respondent University, which is enjoined with a duty to verify eligibility of the students, has permitted the petitioners to undergo the Course and appear for the examinations, it is not permissible for the respondent University to cancel the admission of the petitioners and prevent them from appearing in the examinations or withhold their results. The learned Senior Counsel relies on the following judgments :
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(i) Shri Krishnan vs. Kurukshetra University
{(1976) 1 SCC 311},
(ii) Mohd. Shabir vs. State of Maharashtra
{(1979) 1 SCC 568},
(iii) A. Sudha vs. University of Mysore and
another (1987) 4 SCC 537),
(iv) Dr. M.K. Salpekar vs. Sunil Chaudhari and
others {(1988) 4 SCC 21},
(v) Sanatan Gauda vs. Berhampur University
and others {(1990) 3 SCC 23},
(vi) Sama Alana Abdulla vs. State of Gujarat
{(1996) 1 SCC 427},
(vii) Shivanandam Vivekanand Babu vs. State
of Maharashtra and others {(2005) 10 SCC 587},
(viii) Union of India vs. Major Bahadur Singh {(2006) 1 SCC 368},
(ix) Guru Nanak Dev University vs. Sanjay Katwal and another {(2009) 1 SCC 610)},
(x) Rajendra Agricultural University vs. Ashok Kumar Prasad and others {(2010) 1 SCC
730)}.
(xi) Arshdeep Puri vs. Maharashtra State Board
of Secondary and Higher Secondary
Education, Nagpur and others (1991 (1) ::: Downloaded on - 09/06/2013 19:18:30 ::: 10 wp4863.12 Mh.L.J. 304),
(xii) Ganesh Baheti vs. University of Pune and another (2003 (4) Mh.L.J. 140),
(xiii) Rajashree Bokade vs. Union of India and others (2003 (4) Mh.L.J. 571),
(xiv) Sunil Tuvlare vs. V.D. Krishi Vidyalaya and others (2004 (2) Mh.L.J. 99),
(xv) Suyog Jain vs. State of Maharashtra and others (Writ Petition No.2027/2008),
5) On the other hand, Dr. Kulkarni, learned Counsel appearing for respondent University, submits that even though the petitioners have undergone the course and appeared for the examinations, if their admission is void ab initio, the same cannot be regularized and the impugned action on the part of the respondent University in cancelling their admission cannot be questioned. The learned Counsel relies on the judgments of the Apex Court in the case of A.P. Christians Medical Education Society vs. Government of Andhra Pradesh and another {(1986) 2 SCC 667} and Regional Officer, CBSE vs. Ku.
::: Downloaded on - 09/06/2013 19:18:30 :::11 wp4863.12 Sheena Peethambaran and others {(2003) 7 SCC 719}.
6) The relevant part of Ordinance 16 of 2009, which governs the eligibility criteria for admission to the MCA course reads thus :
"3. Subject to the compliance with the provisions of this Ordinance and other Ordinances in force from time to time, the following person shall be eligible for admission to MCA :
(a) Graduate in any discipline with minimum 50% marks and mathematics upto 10+2 level (5% relaxation to candidates belonging to Backward communities).
(b) a candidate passing Post B.Sc.
Diploma in Computer Science and
Applications examination of Rashtrasant Tukadoji Maharaj Nagpur University and/or any statutory University satisfying the condition given in "a" above are eligible to take admission directly at second year of M.C.A. (subject to condition of availability of seats in total intake capacity plus 10% additional)."
7) Undisputedly, all the petitioners have passed Post B.Sc. Diploma in Computer Science and Applications examination. The only question is ::: Downloaded on - 09/06/2013 19:18:30 ::: 12 wp4863.12 whether the petitioners are also required to possess 50% marks in the graduation examination as prescribed in sub-clause (a) of Clause 3 of the said Ordinance. However, in view of the judgments of the Apex Court and the Division Benches of this Court, we do not find it necessary to go into that question inasmuch as we find that the petitions deserve to be allowed in view of the law laid down by the Apex Court and the Division Benches of this Court, which we will be discussing hereinafter. No doubt, reliance placed by learned Counsel Dr. Kulkarni on the two judgments of the Apex Court is well merited. However, the said judgments would not be applicable to the facts of the present case for the reasons given hereinafter.
8) In the case of Shri Krishnan vs. The Kurukshetra University, Kurukshetra {(1976) 1 SCC 311}, the appellant before the Apex Court was a Teacher in the Government High School and had taken admission to Law Course, which was conducted in the ::: Downloaded on - 09/06/2013 19:18:30 ::: 13 wp4863.12 evening so as to facilitate the persons, who are in service, to undergo the Course for three years. After some correspondence between the candidate and the University regarding his eligibility, his admission came to be cancelled. The candidate filed an appeal, which was dismissed by the Vice Chancellor of the University.
The candidate filed a writ petition before High Court.
The High Court dismissed the petition. The candidate went in appeal before the Apex Court. While allowing the appeal, the Apex Court observed in para (7) of the judgment, which reads thus:
"7) It appears from the averments made in the counter-affidavit that according to the procedure prevalent in the college, the admission forms are forwarded by the Head of the Department in December preceding the year when the examination is held. In the instant case, the admission form of the appellant must have been forwarded in December 1971 whereas the examination was to take place in April/May 1972. It is obvious that during this period of four to five months, it was the duty of the University Authorities to scrutinise the form in order to find ::: Downloaded on - 09/06/2013 19:18:30 ::: 14 wp4863.12 out whether it was in order. Equally it was the duty of the Head of the Department of Law before submitting the form to the University to see that the form complied with all the requirements of law. If neither the Head of the Department nor the University Authorities took care to scrutinise the admission form, then the question of the appellant committing a fraud did not arise. It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppressio veri. The appellant never wrote to the University authorities that he had attended the prescribed number of lectures. There was ample time and opportunity for the University authorities to have found out the defect. In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I examination in April 1972, then by force of the University statute the University had no power to withdraw the candidature of the appellant. A somewhat ::: Downloaded on - 09/06/2013 19:18:30 ::: 15 wp4863.12 similar situation arose in Premji Bhai Ganesh Bhai Kshatriya v. Vice Chancellor, Ravishankar University, Raipur where a Division Bench of the High Court of Madhya Pradesh observed as follows :
"From the provisions of Ordinance Nos. 19 and 48, it is clear that the scrutiny as to the requisite attendance of the candidates is required to be made before the admission cards are issued. Once the admission cards are issued permitting the candidates to take their examination, there is no provision in Ordinance No.19 or Ordinance No.48, which would enable the Vice Chancellor to withdraw the permission.
The discretion having been clearly exercised in favour of the petitioner by permitting him to appear at the examination, it was not open to the Vice Chancellor to withdraw that permission subsequently and to withhold his result."
We find ourselves in complete agreement with the reasons given by the Madhya Pradesh High Court and the view of law taken by the learned Judges. In these circumstances, therefore, once the appellant was allowed to appear at the examination in May 1973, the respondent had no ::: Downloaded on - 09/06/2013 19:18:30 ::: 16 wp4863.12 jurisdiction to cancel his candidature for that examination. This was not a case where on the undertaking given by a candidate for fulfillment of a specified condition a provisional admission was given by the University to appear at the examination, which could be withdrawn at any moment on the non-fulfillment of the aforesaid condition. If this was the situation, then the candidate himself would have contracted out of the statute which was for his benefit and the statute therefore would not have stood in the way of the University authorities in cancelling the candidature of the appellant."
(emphasis supplied)
9) The Apex Court in the case of A. Sudha vs. University of Mysore and another (1987) 4 SCC 537) though held that a candidate was not eligible for admission in the First Year MBBS Course of Mysore University, but finding that the appellant was an innocent person and relied upon the information supplied to her by the Principal of the Institute, though dismissed the special leave petition, directed that the ::: Downloaded on - 09/06/2013 19:18:30 ::: 17 wp4863.12 appellant shall be allowed to prosecute her studies.
Reference may be made to paragraph (18) of the said judgment, which reads thus :
"18. The facts of the instant case are, more or less, similar to the Rajendra Prasad Mathur case. It has been already noticed that on the appellant's query, the Principal of the Institute by his letter dated February 26, 1986 informed her that she was eligible for admission in the First Year MBBS course. It was, inter alia, stated in the letter that the candidate should have obtained 50 per cent marks in the optional subjects in the B.Sc. Examination. There is no dispute that the appellant had obtained 54 per cent marks in those subjects in the B.Sc. Examination. The appellant was, therefore, quite innocent and she was quite justified in relying upon the information supplied to her by none else than the Principal of the Institute in the said letter in regard to the eligibility of the admission in the First Year MBBS course. In the circumstances, we do not think that we shall be justified in penalising the appellant by not allowing her to continue her studies in the MBBS Course. Prima facie it was the fault of the Principal of the Institute ::: Downloaded on - 09/06/2013 19:18:30 ::: 18 wp4863.12 but, in our view, the statement that was made by him in his said letter to the appellant as to the eligibility of the appellant for admission to the MBBS course, was on a bona fide interpretation of the regulations framed by the Mysore University for admission to MBBS course for the academic year 1985-86, which to some extent suffer from ambiguity. The regulations should have been more clear and specific. Be that as it may, following the decision of this Court in Rajendra Prasad Mathur case while we dismiss the appeal, we direct that the appellant shall be allowed to prosecute her studies in the MBBS course and that her result for the First Year MBBS examination be declared within two weeks from date."
(emphasis supplied)
10) The Apex Court in the case of Sanatan Gauda vs. Berhampur University and others {(1990) 3 SCC 23}, was considering similar situation. In the said case, application by the student for appearing in the examination was forwarded by the College. When the ::: Downloaded on - 09/06/2013 19:18:30 ::: 19 wp4863.12 application by the student for appearing in the examination was forwarded by the College, the University asked the Principal of the College to send mark list of the student for the purpose of verification, but the Principal did not comply. However, the Principal sent a letter stating that the mark list of the student would be sent in a few days to the University for "your kind reference and verification", which was never sent. In spite of this, the University Authorities had allowed the student to appear in the examination.
However, after the student had appeared in the examination, his result was withheld and, therefore, he approached the Orissa High Court by filing a writ petition. The writ petition was dismissed. The student went in appeal before the Apex Court. The Hon'ble two Judges delivered different judgments. However, both the Hon'ble Judges have held that the action of the University in withholding the result of the appellant therein was not justified. In the judgment delivered by Hon'ble Justice Savant, it is observed in para (15), ::: Downloaded on - 09/06/2013 19:18:30 ::: 20 wp4863.12 which reads thus :
"15) This is apart from the fact that I find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his marks-sheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the Pre-Law and Intermediate Law examinations. He was permitted to appear in the said examinations. He was also admitted to the final year of the course. It is only at the stage of the declaration of his results of the Pre-Law and Inter-Law examinations that the University raised the objection to his so called ineligibility to be admitted to the Law Course. The University is, therefore, clearly estopped from refusing to declare the results of the appellant's examination or from preventing him from pursuing his final year course."
(emphasis supplied) It is also relevant to refer to para (3) of the judgment ::: Downloaded on - 09/06/2013 19:18:30 ::: 21 wp4863.12 delivered by Hon'ble Justice Sharma, which reads thus :
"3) Mr. P.N. Misra, the learned Counsel for the respondent, contended that the University had informed the Colleges about the necessary condition for admission to the Law Course which, it appears, was not respected by the College. When the applications by the candidates for sitting at the examination were forwarded by the College, the University asked the Principal to send the marks of the candidates for the purpose of verification, but the Principal did not comply. The letters -
Annexures `F' and `G' to the counter affidavit have been relied upon for the purpose. The learned Counsel pointed out that instead, the Principal sent a letter Annexure `I' stating that the marks-list would be sent in a few days for "your kind reference and verification", which was never sent. The Principal wrongly assured the University authorities that he had verified the position and that all the candidates were eligible. In these circumstances, the argument is, that the appellant cannot take advantage of the fact that the University allowed him to appear at the examination. I am afraid, the ::: Downloaded on - 09/06/2013 19:18:31 ::: 22 wp4863.12 stand of the respondent cannot be accepted as correct. From the letters of the University, it is clear that it was not depending upon the opinion of the Principal and had decided to verify the situation for itself. In that situation, it cannot punish the student for the negligence of the Principal or the University authorities.
ig It is important to appreciate that the appellant cannot be accused of making any false statement or suppressing any relevant fact before anybody. He had produced his marks-sheet before the College authority with his application for admission and cannot be accused of any fraud or misrepresentation. The interpretation of the rule on the basis of which the University asserts that the appellant was not eligible for admission is challenged by the appellant and is not accepted by the College and my learned Brother accepts the construction suggested by him as correct. In such a situation, even assuming the construction of the rule as attempted by the University as correct, the Principal cannot be condemned for recommending the candidature of the ::: Downloaded on - 09/06/2013 19:18:31 ::: 23 wp4863.12 appellant for the examination in question.
It was the bounden duty of the University to have scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so, it cannot refuse to publish his results."
(emphasis supplied)
11) In the case of Shivanandam Vivekanand Babu and another vs. State of Maharashtra and others {(2005) 10 SCC 587}, minimum 50% marks were required as eligibility for being admitted to M.B.A.
Course and relaxation of 5% marks was provided for reserved category candidates only from the State of Maharashtra. However, the Institute in the prospectus and advertisement had stated that the relaxation shall be granted to all the reserved category candidates.
The candidates though belonged to reserved category were from the State of Andhra Pradesh. They were possessing more than 45% marks, but less than 50% marks. Admission was given to them and their results ::: Downloaded on - 09/06/2013 19:18:31 ::: 24 wp4863.12 till the third semester were also declared. However, their result of the fourth semester was not declared.
The writ petition filed by them was dismissed by this Court. While allowing their appeal, the Apex Court observed in paras (9) and (10) of the judgment, which reads thus :
"9) From a conspectus of the facts of the case, it is clear that the appellants cannot be accused of having played any trick, much less any fraud on any of the respondents. They stated the facts correctly. If ineligible, it was for the College to have refused admission to the appellants.
On the material forwarded by the College to the University, the University permitted the appellants to take not one, but four examinations in sequence spread over a period of two years. If the College has been guilty of any misdeed, it does not appear from the record that any action was taken by the University against the College. In such circumstances, we do not think that the appellants who come from a downtrodden class of community, can be made to suffer for no fault of theirs.::: Downloaded on - 09/06/2013 19:18:31 :::
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10) On the facts and circumstances of this case, we find that the appellants could not have been denied relief sought for from the High Court. The appeals are, therefore, allowed. The impugned judgment of the High Court is set aside.
Respondent 2 University is directed to declare the result of the two appellants forthwith. By way of abundant caution, we make it clear that we have proceeded to decide these appeals on the facts and circumstances of this case as stated hereinabove. We have not in any manner decided the question of eligibility of the appellants or validity of the rule enacted by the University."
(emphasis supplied)
12) In the case of Guru Nanak Dev University vs. Sanjay Katwal and another {(2009) 1 SCC 610}, the qualification prescribed by the University was Bachelor's degree with not less than 45% marks or Master's degree. The candidate had appeared for competitive test for admission to LL.B. Course. He was declared successful and was admitted to St. Soldier Law College. After scrutinizing the record, the ::: Downloaded on - 09/06/2013 19:18:31 ::: 26 wp4863.12 appellant University registered the said candidate and examination roll number was also given to him, insofar as examination for the first semester was concerned. There was exchange of certain communication between University and College regarding eligibility of the candidate since he possessed M.A. Degree from Annamalai University through distance education. The University did not agree with the representation of the candidate and directed cancellation of his admission. Being aggrieved thereby, the candidate approached the High Court by way of a writ petition. The petition was allowed. Being aggrieved thereby, the University went in appeal before the Apex Court. In the appeal, though the Apex Court found that the candidate was not eligible and as such, allowed the appeal of the University, the Apex Court observed in paras (18) and (19) of the judgment, which reads thus :
"18) However, on the peculiar facts of the ::: Downloaded on - 09/06/2013 19:18:31 ::: 27 wp4863.12 case, the first respondent is entitled to relief. The first respondent was admitted through a common entrance test process during 2004-2005. He was permitted to take the first semester examinations by the University. He is not guilty of any suppression or misrepresentation of facts. Apparently, there was some confusion in the appellant University itself as to whether the distance education course attended by the first respondent was the same as the correspondence course, which was recognised.
19) The first respondent was informed that he was not eligible only after he took the first semester examination. He has, however, also been permitted to continue the course and has completed the course in 2007. He has succeeded before the High Court. Now after four years, if it is to be held that he is not entitled to admission, four years of his career will be irretrievably lost. In the circumstances, it will be unfair and unjust to deny the first respondent the benefit of admission, which was initially accepted and recognized by the appellant ::: Downloaded on - 09/06/2013 19:18:31 ::: 28 wp4863.12 University."
(emphasis supplied)
13) Relying on the judgments of the Apex Court, a similar view has been taken by the various Division Benches of this Court in various matters including in the case of Arshdeep Puri vs. Maharashtra State Board of Secondary and Higher Secondary Education, Nagpur and others (1991 (1) Mh.L.J. 304), Sunil s/o Gopalkrishna Tuvlare and another vs. Principal, Sou.
Vasudhatai Deshmukh Krishi Vidyalaya, Akola and others (2004 (2) Mh.L.J. 99) and Ganesh R. Baheti vs. University of Pune and another (2003 (4) Mh.L.J. 140).
14) Applying the ratio laid down in the aforesaid cases, we have to examine the facts of the present case. All the petitioners had submitted their mark sheets to the respondent College while securing admission. After finding the petitioners to be eligible, the respondent College had admitted the petitioners ::: Downloaded on - 09/06/2013 19:18:31 ::: 29 wp4863.12 and sent the documents to the respondent University for enrollment of the petitioners. It was the bounden duty of the respondent University to have verified the question regarding eligibility of the petitioners at the very threshold. It is not in dispute that since the petitioners are possessing post graduate diploma in Computer Science and Applications, they were entitled to take admission directly in the third semester. All the petitioners have been permitted to appear for the third semester examination and their results were declared. Not only that, all the petitioners were also permitted to appear for the fourth semester examination. Petitioner Syeda Aufiya Ahmad was also permitted to complete her fifth semester. Her result of fifth semester examination was declared and she was permitted to undergo studies for the sixth semester and appear for the said examination. It is thus clear that petitioner Syeda Aufiya Ahmad has completed her entire course and has now appeared for the final semester examination, of which the result is withheld.
::: Downloaded on - 09/06/2013 19:18:31 :::30 wp4863.12 All other petitioners have undergone third and fourth semesters and as such, completed substantial part of their course. It is not as if the petitioners have withheld material documents regarding their eligibility.
On the contrary, entire documents have been supplied to the respondent College which, in turn, has permitted them to undergo the course and appear for various examinations. It is contended on behalf of the petitioners and which fact is not disputed by the respondent University that several other Colleges affiliated to the respondent University have also admitted students, who had not secured 50% marks at the graduation level, but were possessing the post graduate Diploma in Computer Science and Applications. It thus appears to be an accepted practice by the Colleges affiliated to the respondent University and the respondent University of admitting the students to the post graduate course, if they possess post graduate diploma in Computer Science though they did not possess 50% marks in the ::: Downloaded on - 09/06/2013 19:18:31 ::: 31 wp4863.12 graduation examination. As already discussed hereinabove, we do not find it necessary to go into the aspect of interpretation of Rules. If according to the respondent University, the Rule does not permit a student, who does not possess 50% marks at graduation level in spite of possessing a post graduation diploma, it ought not to have enrolled the students and permitted them to appear for the examinations. However, on account of misdeed or negligence on the part of the respondent College or University, the petitioners, who have undergone substantial part of their course, cannot be penalised at the fag end of their course. We, therefore, find that the action of the respondent University in directing the respondent College to cancel admission of the petitioners and that of respondent College in cancelling their admission is not sustainable in law.
15) Insofar as judgment of the Apex Court in A.P.
Christians Medical Educational Society vs. Government ::: Downloaded on - 09/06/2013 19:18:31 ::: 32 wp4863.12 of Andhra Pradesh and another {(1986) 2 SCC 667) is concerned, the said case is totally different on facts.
In the said case, the College in spite of not having affiliation had published a prospectus and advertisement inviting applications from students for being admitted to the MBBS course. Noticing this, the University published a notification twice informing the public in general and student community in particular that Osmania University had neither permitted nor granted affiliation in the MBBS course of the above Institution and "whoever seeks admission in the above Institution will be doing so at his/her own risk". In this factual background, the Apex Court observed in para (10) of the judgment, which reads thus :
"10) Shri K.K. Venugopal, learned Counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had ::: Downloaded on - 09/06/2013 19:18:31 ::: 33 wp4863.12 not been granted to the institution. He invited our attention to the circumstance that students of the medical college established by the Daru-Salam Educational Trust were permitted to appear at the examination notwithstanding the fact that affiliation had not by then been granted by the University. Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interest of the students. We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the students.
Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our 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. The case of the medical college started by the Daru-
Salam Trust appears to stand on a different footing as we find from the record placed before us that permission had been granted by the State Government to the Trust to start the medical college and on that account, the University had ::: Downloaded on - 09/06/2013 19:18:31 ::: 34 wp4863.12 granted provisional affiliation. We also find that the Medical Council of India took strong and serious exception to the grant of provisional affiliation whereupon the University withdrew the affiliation granted to the college. We are unable to treat what the University did in the case of the Daru-Salam Medical College as a precedent in the present case to direct the University to do something which it is forbidden from doing by the University Act and the regulations of the University. We regret that the students who have been admitted into the college have not only lost the money which they must have spent to gain admission into the college, but have also lost one or two years of precious time virtually jeopardising their future careers. But that is a situation which they have brought upon themselves as they sought and obtained admission in the college despite the warnings issued by the University from time to time.
We are happy to note that the University acted watchfully and wakefully, issuing timely warnings to those seeking admission to the institution. We are sure many must have taken heed of the warnings issued by ::: Downloaded on - 09/06/2013 19:18:31 ::: 35 wp4863.12 the University and refrained from seeking admission to the Institution. If some did not heed the warnings issued by the University, they are themselves to blame. Even so if they can be compensated in some manner, there is no reason why that may not be done. We are told that the assets of the institutions, which have sprung out of the funds collected from the students, have been frozen. It is up to the State Government to devise suitable ways, legislative and administrative, to compensate the students at least monetarily. The appeal filed by the society is dismissed with costs which we quantify at Rs.10,000/-. The writ petition filed by the students is dismissed but, in the circumstances, without costs."
(emphasis supplied) It can thus clearly be seen that in the case before the Apex Court, though the University had issued warning by public notification on two occasions that the students, who take admission in the said College, would be doing so at their risk, the students had taken admission. In this view of the matter, the Apex Court ::: Downloaded on - 09/06/2013 19:18:31 ::: 36 wp4863.12 found that it is the students themselves, who had taken admission in spite of warnings by the University, were to be blamed. In the present case, had the respondent University issued a similar notification, it would have been a different matter. However, undisputedly that has not been done and as such, the said judgment would not be applicable to the facts of the present case.
Not only this, the Apex Court itself in the case of A. Sudha (cited supra) has distinguished the judgment in the case of A.P. Christians Medical Educational Society by observing in para (15) of the judgment, which reads thus :
"15) It appears from the observations extracted above that the students were themselves to blame, for they had clear knowledge that the College was not affiliated to the University and in spite of the warning of the University they sought for the admission in the College in the First Year MBBS course and were admitted. In that context, this Court made the above observations."::: Downloaded on - 09/06/2013 19:18:31 :::
37 wp4863.12 In that view of the matter, we find that the said judgment is of no assistance to the respondent University.
16) Insofar as judgment of the Apex Court in the case of Regional Officer, CBSE vs. Ku. Sheena Peethambaran and others {(2003) 7 SCC 719} is concerned, in the said case since the student had failed to clear her Class IX examination, her form to appear for the X Standard examination was withheld by the School itself. However, the High Court by an interim order permitted the student to appear for the X Standard examination and by a subsequent order, the High Court had directed result to be declared.
Subsequently, the petition came to be allowed. In this background, the Apex Court deprecated the practice of permitting an ineligible student to appear for an examination by an interim order. The said judgment is also not applicable to the facts of the present case.
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17) Needless to state that we expect the
respondent University to be equally diligent hereinafter and ensure that the Colleges affiliated to it do not admit the students, who according to them, are not eligible for being admitted. Instead of permitting the students to get admitted and permitting them to appear for the examinations, ig which permission undoubtedly is required to be given after verification of eligibility of students, it would be in the interest of students as well as respondent University to prevent admission of such ineligible students at the threshold and avoid such unwarranted and unnecessary litigation. We do hope that Dr. Kulkarni will convey our sentiments to the concerned Authorities at the respondent University and ensure that hereinafter such lapses are not repeated.
18) In that view of the matter, we find that the action on the part of the respondent University in cancelling the admission of the petitioners and ::: Downloaded on - 09/06/2013 19:18:31 ::: 39 wp4863.12 withholding their results is not sustainable in law. The petitions are, therefore, allowed. The impugned orders are quashed and set aside. The respondent University and College are directed to permit the petitioners to complete their course, declare their results of examinations in which they have appeared and also permit them to appear for further examinations and declare results thereof till completion of their course.
19) Rule is made absolute in the above terms. No order as to costs.
JUDGE JUDGE
khj
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