Bombay High Court
Ms. Syeda Aufiya Ahmad vs The Rashtrasant Tukadoji Maharaj on 19 October, 2012
Bench: B.R. Gavai, S.P. Deshmukh
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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6 wp4863.12
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.
7 wp4863.12
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
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 :
9 wp4863.12
(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)
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.
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
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
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
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
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
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
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
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
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),
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
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
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
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
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.
25 wp4863.12
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
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
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
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
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.
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
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
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
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
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
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
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."
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.
38 wp4863.12
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
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
