Mirza Ashraf Baig Mirza Anwar Baig vs The Maulana Azad National Urdu ...
2017 Latest Caselaw 8032 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD
                                               
                  WRIT PETITION NO.9955 OF 2016


 Mirza Ashraf Baig s/o 
 Mirza Anwar Baig,
 Age: 41 years, 
 Occu: Primary Teacher at
 Anjuman Urdu Primary School
 at Parbhani,
 R/o. Flat No.1, infront of 
 Umar Farque Masjid Iqbal Nagar,
 Parbhani, Tq. & Dist. Parbhani                   ..PETITIONER

          VERSUS

 1.       The Maulana Azad National 
          Urdu University Hyderabad,
          Through its Registrar

 2.       Maulana Azad National Urdu
          University, College of Teacher 
          Education, DRP Educational Campus,
          Opp. Taj Residency, Mahmoodpura,
          Rauza Bagh, Aurangabad-431001(M.S.)
          Through its Chairman,
          Admission Counselling-15

 3.       The Yeshwantrao Chavan Maharashtra
          Open University, Nashik
          Through its Registrar

 4.       Director, Directorate of 
          distance mode education, 
          Maulana Azad National Urdu
          University, Hyderabad

 5.       The University Grant Commission,
          Bahadur Shaha Zafar Marg,
          New Delhi 110002                 ..RESPONDENTS




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 Mr S. T. Veer, Advocate for petitioner;
 Mr S. V. Adwant, Advocate for respondent Nos.1, 2 & 
 4;
 Mrs R. R. Mane, Advocate for respondent No.3;
 Mr B. B. Kulkarni, Advocate for respondent No.5
                            
                       CORAM : SHANTANU S. KEMKAR  & 
                               NITIN W. SAMBRE, JJ. 

Reserved on : 18th August, 2017

Pronounced on: 11 October, 2017

JUDGMENT : [ PER NITIN W. SAMBRE, J.]

The petitioner, a student, has questioned

the order dated 23rd August, 2016 passed by

respondent No.2-College rejecting the claim of the

petitioner for admission to Bachelor of Education

B.Ed.(Distace Mode), though he was selected in the

third round of admission, on the ground that he is

not qualified. The claim of respondent No.2 is,

degree held by the petitioner of Bachelor of Arts

from respondent No. 3 - Open University is upon

pursuing two years course and as such, cannot be

termed as degree within the meaning of Section 22

of the University Grants Commission Act,

(hereinafter shall be referred to as 'the Act' for

sake of brevity).

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2. The petitioner claimed that based on his

earlier qualification i.e. H.S.C. in Urdu medium,

he got admission to D.Ed. in Urdu medium and

cleared the same. Forming diploma as basic

qualification, the petitioner got admission to B.A.

course in respondent No.3 - Open University in the

year 2013. As the petitioner was holding basic

D.Ed. qualification, as per Statute of respondent

No.3 - University, he was granted admission

directly to second year of B.A. degree course in

Urdu medium, which he cleared in the year 2014 by

securing first class. Having possessing migration

certificate from respondent No.3 - Open University

and got mark sheet of B.A. degree along with

passing certificate, the petitioner applied for

admission to respondent No.2 for B.Ed.(DM) course

for academic session 2015-2016. The petitioner

submits that he is serving on the post of primary

teacher in recognized Urdu Primary School and was

issued employment certificate by the Municipal

Corporation of Parbhani certifying that he is

serving in Urdu Primary School. The Headmaster of

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one Zakir Husain High school has also certified

that the petitioner will be provided facility of

carrying out practical work for B.Ed. Programme

from their school.

3. Pursuant to the application for admission

to B.Ed. Course, the petitioner appeared for

entrance examination and secured 1232 rank in the

merit list declared by respondent No.2. The

petitioner was called for first and third round

admission. The petitioner attended the same on 11 th

July, 2016 in respondent No.2 - College at

Aurangabad. The petitioner along with demand draft

of Rs.20,000/- drawn in favour of University, which

was managing respondent No.2 - College, shown his

willingness for admission, however, respondent No.2

rejected his candidature on the ground that the

petitioner is not holding graduate degree, awarded

after pursuing three years term. As such, this

writ petition.

4. Mr. Veer, learned Counsel for the

petitioner, while inviting attention of this Court

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to the certificate issued by respondent No.3 -

Yashwantrao Chavan Maharashtra Open University,

Nashik, dated 12th May, 2015, would urge that B.A.

(Urdu Medium) degree is awarded to the petitioner

after pursuing prescribed curriculum of B.A. course

and has secured first class in the said

examination. Along with said certificate, he has

also relied upon other documents issued by the said

University. In addition, learned Counsel would

invite attention of this Court to the eligibility

clause prescribed in the admission brochure of

respondent No.2 - College, which provides that

candidate with at least 50% of marks either in

U.G.C. recognized University Bachelor Degree and/or

in the Masters degree in Sciences/Social Sciences,

Commerce and Humanity shall be eligible for

admission. The said eligibility nowhere prescribed

that the candidate must passed three years degree

course. He would urge that respondent Nos. 1 and 2

have lost sight of the fact that the petitioner, on

the basis of his Diploma in Education was granted

admission by respondent No.3 - University directly

to the second year B.A. course, which fact was not

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considered by the respondents while rejecting his

candidature.

5. Per contra, Mr. Adwant, learned Counsel

for respondent Nos. 1, 2 and 4 would invite

attention of this Court to the University Grants

Commission Regulation, 1985 dated 25th November,

1985, particularly sub clause (2) of clause (2)

which reads thus :

"2(2) No student shall be eligible for the award of the first degree unless he has successfully completed a three year course; this degree may be called the B.A./B.Sc./B.Com. (General Honours/Special) degree as the case may be.

Provided that no student shall be eligible to seek admission to the Master's Course in these faculties, who has not successfully pursued the first Degree Course of three years duration.

Provided further that, as a transistory measure where the universities are unable to change over to a three year decree course, they may award a

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B.A./B.Sc./B.Com. (Pass) degree on successful completion of two year course, but that no student of this stream shall be eligible for admission to the Master?s course unless he has undergone a further one year bridge course and passed the same. The three year degree course after 10+2 stage should in no case be termed as B.A./B.Sc./B.Com. (Pass) degree."

6. According to him, since the petitioner has

successfully completed two years of degree course,

he shall not be entitled for admission to B.Ed.

Course as prayed by him, as he lacks basic

qualification of holding degree after qualifying

three years degree course. In addition, he would

also rely upon the provisions of U.G.C. (Minimum

Standards of Instruction for the Grant of the First

Degree through Formal Education) Regulations, 2003,

particularly clause 8(1), which reads thus :

"8.1 No student shall be eligible for the award of the first degree unless he/she has successfully completed a programme, of not less than three years duration and secured the minimum number of credits prescribed by the university for the award of the degree."

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7. According to him, in view of said clause

and provisions of Section 22 of University Grants

Commission Act, the petitioner cannot be termed to

be qualified for admission to the B.Ed. Course

having not completed B.A. Course with duration of

minimum three years.

8. Respondent No.3 - Yashwantrao Chavan

Maharashtra Open University has filed affidavit and

supported the claim of the petitioner. According

to respondent No.3 - University, the petitioner has

completed B.A. degree course from the said

University and he was admitted to B.A. course based

on his qualification of H.S.C. D.Ed. The said

University applied 'Credit Transfer Rule' and was

granted admission directly to second year B.A.

course. According to learned Counsel for

respondent No.3, admission to B.A. degree Course

and degree certificate awarded by respondent No.3

after petitioner persuaded B.A. Course for two

years based on his H.S.C. D.Ed. qualification, is

equivalent to B.A. degree awarded by any other

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statutory traditional university. So as to

substantiate her contentions, respondent -

University has relied upon the relevant Regulations

which deals with admission to second year degree

course in the case of petitioner, which provides

that awarding credit points for pursuing of each

year of degree course. The said Regulations

provide that for each year, 36 credit points are

awarded to a candidate as he was already holding

basic qualification i.e. H.S.C. D.Ed. As such, the

petitioner was admitted to second year B.A. course,

by awarding 100% credit points i.e. of 36 points of

B.A. first year.

9. She would then invite attention of this

Court to the communication dated 5th May, 2004

issued by U.G.C., wherein it is provided that the

University like respondent No.3 is empowered to

award degree under Section 22(2) of the University

Grants Commission Act, 1956. She would also rely

upon communication dated 5th July, 2016, issued by

respondent No.5 - University Grants Commission

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whereby University Grants Commission has approved

the courses including that of B.A. conducted by

respondent No.3 - University which are offered to

the students through distant learning mode, in

which, B.A. degree is very much approved at Serial

No.66. According to her, respondent Nos. 1,2 and 4

are taking hyper-technical approach and according

to her, the petition of the petitioner is liable to

be allowed in toto, by rejecting the claim of

respondent Nos. 1,2 and 4.

and 4 has relied upon the following judgments:-

1. Prof. Yashpal & Anr. Vs. State of

Chattisgarh & Ors. reported in (2005) 5

SCC 420,

2. Annamali University Vs. Secretary to

Govt. reported in (2009) 4 SCC 590, so as to

substantiate his contention that the petitioner

lacks basic qualification, hence his candidature

for admission to B.Ed. Course was rightly

rejected.

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Reliance is also placed on the judgment

of Apex Court in the matter of Dau Dayal Mahila

(P.G. College) Vs. State of U.P. reported in

MANU/UP/2414/2013, so as to substantiate the

contention that admission cannot be granted

contrary to the Regulation framed by University

Grants Commission.

11. Having considered the rival submissions of

the respective parties, it is required to be noted

that respondent No.3 - University is created by

virtue of Maharashtra Act XX of 1989 with an

intention to introduce and promote Open University

and distance education system in the educational

pattern of the State. Sub Section (5) of Section-2

of the said Act defines 'distance education system'

which reads thus :

"2 (5) "distance education system" means the system of imparting education through any means of communication such as broadcasting, telecasting, correspondence courses, seminars, contact programmes or

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the combination of any two or more of such means;"

Section 4 of the said Act provides for

objects of the University, which reads thus :

"4. The objects of the University shall be to advance and disseminate learning and knowledge by a diversity of means, including the use of any communication technology, to provide opportunities for higher education to a larger segment of the population and to promote the educational well being of the community generally, to encourage the Open University and distance education system in the educational pattern of the State and the University shall, in organising its activities, have due regard to the objects specified in the First Schedule."

Section 5 of the said Act provides for

powers of University and amongst other, it provides

for plan and prescribed Courses of study of

degrees, diplomas etc. and hold examination and

confer degrees, as is apparent from sub sections

(ii) and (iii) of Section 5, which read thus :

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"5.(ii) to plan and prescribe courses of study of degrees, diplomas, certificates or for any other purpose;

(iii) to hold examination and confer degrees, diplomas, certificates or other academic distinctions or recognitions on persons who have pursued a course of study or conducted research in the manner laid down by the Statutes and Ordinances;"

12. From the aforesaid provisions in the

enactment by which respondent No.3 is created, it

could be inferred that it has every statutory right

and power to award degrees.

13. Apart from above, respondent No.5 - U.G.C.

had an occasion to consider equivalence of degrees

awarded by Open and distance learning institution

at par with conventional university institution.

In communication dated 14th October, 2013, issued

by respondent No.5 - U.G.C., particularly in

clause-2 following observations are made:-

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"2. A circular was earlier issued vide UGC letter F1 No- 52/2000(CPP-II) dated May 05, 2004 (copy enclosed) mentioning that Degrees/Diplomas/Certificates/ awarded by the Open Universities in conformity with the UGC notification of degrees be treated as equivalent to corresponding awards of the traditional Universities in the country."

14. The said communication is considered along

with communications, produced on record by

respondent No.3 - University along with its

affidavit, which reflect the policy of respondent

No.5 - U.G.C. as could be noticed from

communication dated 5th May, 2004 onwards, it has

to be inferred that degrees conferred by the Open

University like respondent No.3, are approved by

U.G.C., and are also recognized, as equivalent to

the corresponding degrees awarded by conventional

universities in the country.

15. The communication dated 5th July, 2016,

issued by respondent No.5 - U.G.C., recognizing

B.A. course conducted by respondent No.3 -

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University is not disputed. In the aforesaid

background, what is required to be inferred is,

degree of B.A. conferred by respondent No.3 -

University is very much recognized and is at par

with the degree issued by conventional university.

16. In the aforesaid background, the claim of

the petitioner that qualification of H.S.C. D.Ed.,

was considered for admission to directly 2nd year

B.A. course by respondent No.3 - University is

concerned, respondent No.3 - University from its

own documents, as are produced along with its

affidavit, is able to demonstrate that it has every

right and power pursuant to the provisions of

Sections 21, 23 and 24, to frame Statues, issue

Ordinance and framed Regulations. Pursuant

thereto, it is brought on record by respondent No.3

- University that petitioner's admission to direct

second year B.A. course, was in tune with its

policy of credit transfer rule, which is produced

along with its affidavit at Annexure Exhibit R-1.

The said credit transfer rule is not disputed by

respondent Nos. 1, 2 and 4, but for plea raised by

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respondent No. 4 that it cannot be considered as

recognized degree under Section 22 of the

University Grants Commission Act.

17. Respondent No. 4 or respondent Nos. 1 and

2 are not in a position to bring on record as to

how the credit transfer rule, framed by respondent

No.3 which permits admission of a student based on

his H.S.C. D.Ed., qualification to second year B.A.

degree course, is illegal or not in tune with the

requirement of University Grants Commission Act.

Rather, the very provisions framed by respondent

No. 3 in appropriate manner has decided to award

credit points for each year qualification.

Respondent No.3, as such, awarded total 108 credit

points for B.A. course and for each year, same is

divided in three parts awarding 36 credit points.

18. The petitioner's H.S.C. D.Ed. Course was

considered by respondent No. 3, is worth awarding

36 credit points and particularly having regard to

the subjects in which he has passed out his

diploma.

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19. Apart from above, the credit transfer rule

is not questioned by respondent Nos. 1, 2 and 4.

20. From the aforesaid background, the

contention of respondent Nos. 1, 2 and 4 that the

petitioner lacks basic eligibility as having not

possessing U.G.C. recognized graduate degree, is

liable to be rejected. Apart from above, if the

claim of respondent No. 4 of relying upon

University Grants Commission Regulation 1985, dated

25th November, 1985, particularly sub-section (2)

of Section 2 of the said Regulation, not

recognizing the degree certificate other than one

which is obtained after completing three years

course, is read by the respondents, out of context

in the aforesaid background. Apart from above, the

Regulation dated 25th November, 1985 is already

superseded.

21. So far as the citations as are relied upon

by learned Counsel for respondent Nos. 1, 2 and 4

are concerned, it is required to be noted that the

petitioner herein is not seeking admission by

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compromising admission rules, rather he has

appeared for entrance examination, cleared the same

and his candidature was rejected on technical

ground that he is not possessing three years

degree. As such, judgments relied upon by learned

Counsel for respondent Nos. 1, 2 and 4 as cited

herein before, are of hardly any assistance.

22. Apart from above, the recognition of

admission to direct second year course in the

stream like Engineering, Pharmacy etc., to a

student, who has secured diploma in the said

stream, is not under dispute from respondent No.4,

provided said qualification are recognized by

respondent No.5 - U.G.C. Applying the same

analogy, credit transfer rule as demonstrated by

respondent No.3 in its affidavit and having regard

to the fact that indisputably, the petitioner holds

basic qualification of H.S.C. D.Ed., while being

admitting second year B.A. degree course, in our

opinion, decision of respondent Nos. 1 and 2 in

rejecting his candidature cannot be held to be

justified. In the backdrop of above referred

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observations, it has to be held that the petitioner

holds qualified degree of B.A., which is proper and

appropriate for seeking admission to B.Ed. Course

run and managed by respondent Nos. 1 and 2, to

which, he claimed admission.

23. As such, in our opinion, writ petition

stands allowed in terms of prayer clause (B) & (C)

which read thus :

"(B) To issue the writ of certiorari or any other appropriate writ, order or direction in the like nature and the order dated 23.08.2016 passed by Chairman Admission Counselling-15 of Respondent No. 2 College rejecting the candidature of the petitioner for B.Ed.(DM) Degree may kindly be quashed and set aside.

(C) To issue the Writ of mandamus or any other appropriate Writ or direction in the like nature and the Respondents particularly the Respondent No. 2 may kindly be directed to give the admission to the petitioner for B.Ed.(DM) with them as per the selected list of third round in accordance with law."

(NITIN W. SAMBRE, J.) (SHANTANU S. KEMKAR, J.) Tupe