Ishrat Ali vs State Of U.P. & Others
2015 Latest Caselaw 5309 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
Court No. - 32
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 249 of 2011
 

 
Appellant :- Ishrat Ali
 
Respondent :- State Of U.P. & Others
 
Counsel for Appellant :- S.K. Dwivedi
 
Counsel for Respondent :- C.S.C.,Durga Prasad Singh
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Shashi Kant,J.

1. This special appeal is reported to be beyond time by 79 days. After hearing the submissions and on perusal of the affidavit filed in support of delay condonation application, in our view, the cause shown is sufficient. Accordingly the delay in filing the appeal is condoned.

2. Heard counsel for the parties and perused the record.

3. The present intra Court appeal has been preferred by petitioner-appellant Ishrat Ali challenging the validity and correctness of the judgment and order dated 16.11.2010 passed in Writ Petition No. 66958 of 2010, by which learned Single Judge has dismissed the writ petition filed by the petitioner-appellant. Relevant extract of the impugned judgment reads thus :

"3. Learned counsel for the petitioner could not place anything to show that the aforesaid so called university has been established in accordance with Section 2(f) of the University Grants Commission Act, 1956. It has also not been shown that the university is a "deemed university" under Section 3 of the said Act,nor is an institution especially conferred power to grant or confer degree by an Act of Parliament. Hence, the degree awarded by Gurukul Vishwavidyalaya Vrindavan, Mathura is absolutely illegal and unauthorised conferring no right upon the incumbent to claim any benefit on the basis of such degree.

4. In the case in hand the petitioner claims to have passed Adhikari Examination in the year 2000 from Gurukul Viswavidyalaya, Brindavan and it says that the Adhikari Examination is recognised as equivalent to the High School examination of Board of High School and Intermediate, U.P., Allahabad. However, nothing has been placed on record to show as to how and in what manner the said examination was equivalent to High School and was duly recognised particularly when the aforesaid institution as an University cannot be held to be within the term "University" as defined in Section 2(f) of the U.G.C. Act, 1956. The petitioner seeks to place before this Court the extract of U.P. Education Manual, page 226, item 30 which reads as under:

 

 
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^^fVIi.kh& bl fofu;e esa iz;qDr 'kCn [k.M+ksa ls rkri;Z iwjd ijh{kk ls gSA**
 

 
       There is a note at the bottom on the same page                      	which reads as under:
 

 
^^foKfIr la[;k ifj"kn&9 @532] 'kklu vius i= la[;k 2085
 
@15&7&08&1¼139½@05] fnukad 8 flrEcj] 2008] }kjk la'kksf/kr tks m0iz0 ljdkjh xtV Hkkx&4 fnukad 27 flrECj] 2008 dks izdkf'kr gqvk ¼tks rkRdkfyd izHkkoh½A**
 

 

6. It is thus evident there from that this recognition has been made in 2008 and does not apply for 2000 examination. Moreover, the finding recorded by the authorities concerned in the impugned order that the aforesaid institution has been declared to be a fictitious one by the State Government has not been shown to be perverse inasmuch as in respect to the said institution there is nothing on record to show as to how it came into existence and in what manner it has been constituted and has been permitted to run educational institution in the State of U.P.

7. In view thereof, I find no factual or legal error in the order warranting any interference. Dismissed."

4. The impugned judgment aforesaid is assailed by the appellant on the ground that it suffers from gross errors of law and patent misrepresentation of facts as the writ Court has not appreciated the grievance of the petitioner-appellant and the writ petition filed by the petitioner challenging the order dated 25.9.2010 rejecting his candidature for B.T.C. Course-2010, has been dismissed on the ground that he had obtained education from Gurukul Vishwavidyalaya Vrindavan, which has been found by the Government to be a forged and fictitious institution.

5. According to the counsel for petitioner-appellant, the writ Court in the impugned judgment has ignored the Govt. notification dated 19th September, 2008 that the degree granted upto the year 2008 by the aforesaid Gurukul Vishwavidyalaya Vrindavan, are valid and that the degree issued by it for graduation classes only have been held to be invalid. Adhikari Pariksha passed by the petitioner-appellant in the year 2000, which is equivalent to the High School examination conducted by U.P. Board of High School and Intermediate Examination, was valid and has never been declared invalid or fictitious or by a incompetent institution.

6. Learned standing counsel has placed reliance upon paragraph no. 2 of the impugned judgment wherein the Court below has relied upon definition of the University as given in section 2(F) in respect of certain institutions other than Universities which reads thus :

"2. Under the Constitution of India, Entry 66 List-1 Schedule-VII vests Parliament with exclusive authority to legislate in respect to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. The "State" legislature also has legislative power with respect to Universities under Entry 32, List II, Schedule-VII. But obviously, the said power so far as the standards of higher education is concerned, has to subserve the power of Parliament. The Central Legislative has enacted the University Grants Commission Act, 1956 (hereinafter referred to as the UGC Act, 1956). The aforesaid Act has been enacted to make provision for the coordination and the determination of standards in Universities and for that purpose to establish a University Grants Commission. The term University has been defined under Section 2(f) and in respect to certain other institutions for higher studies other than universities, provisions have been made under Section 3 for declaring such institution as deemed University for the purposes of 1956 Act. The aforesaid provisions are quoted herein below:

"2(f) "university" means a university established or incorporated by or under a central act, a provincial act or a state act, and includes any such institution as may, in consultation with the university concern, be recognised by a commission in accordance with the regulations made in this behalf under this act."

7. The question as to whether the certificate of Adhikari Pariksha issued by Gurukul Vishwavidyalaya, Vrindavan is valid or not, has also drawn attention of the Full Bench decision in Writ-A No. 48208 of 2012, Dhanpal and others Vs. State of U.P. and others, and the Full Bench vide judgment and order dated 9.10.2013, has ruled that the aforesaid certificate of Adhikari Pariksha upto the year 2008 is a valid qualification equivalent to High School regardless of Gurukul having been declared a fake University. In this regard, paragraph no. 54 of the aforesaid Full Bench decision,may be quoted for ready reference which reads thus:

"54. In view of the discussion made above, we answer the reference thus:

(a) Adhikari Pariksha Certificate issued by the Gurukul Viswavidyalaya, Vrindavan, Mathura, up to the year 2008 i.e. till it was recognized by the U.P. Board of High School and Intermediate Education as equivalent to High School, obtained with English as one of the subject, and passed in one year, is a valid qualification equivalent to High School, regardless of Gurukul having been declared a fake University by the UGC.

(b) The decision of the division bench in Special Appeal No. 1990 of 2011 dated 13.10.2011 (Indrawati Devi v. State of U.P. and others), which holds that "Adhikari Pariksha" certificate obtained from Gurukul Viswavidyalaya, Vrindavan, Mathura cannot be held to be a valid degree, does not lay down the correct law."

8. It is apparent from the above that Adhikari Pariksha certificate issued by Gurukul Vishwavidyalaya upto the year 2008 has been found by various courts including the Full Court to be valid one. A distinction has been made by the Full Bench and other decisions that degree of the University may be fake and fictitious or the university may not be competent to issue such degree but so far as the certificate of Adkhikari Pariksha which is equivalent to class 10th issued by Gurukul Vishwavidyalaya upto the year 2008, is concerned, it has not been held by any of the Courts that the said certificate issued upto the year 2008 was not having recognition as equivalent to High School examination conducted by U.P. Board of High School and Intermediate Examination.

9. Therefore, the petitioner-appellant who had obtained certificate of Adhikari Pariksha issued by Gurukul Vishwavidyalaya in the year 2000, was holding a valid certificate and rejection of his candidature for BTC Course-2010, was neither legal nor justified.

10. For the aforesaid reasons, the present appeal succeeds and is allowed and the impugned judgment is set aside. The candidature of the petitioner-appellant shall be considered afresh in accordance with law if he applies.

Dated: 10.12.2015/SNT