Calcutta High Court (Appellete Side)

Madhupia Bar vs The University Of Burdwan And ... on 15 September, 2023

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                IN THE HIGH COURT AT CALCUTTA
              CONSTITUTIONAL WRIT JURISDICTION
                         APPELLATE SIDE


Present:
The Hon'ble Justice Kausik Chanda


                      W.P.A. No.11002 of 2021

                          MADHUPIA BAR
                             -VERSUS-
           THE UNIVERSITY OF BURDWAN AND OTHERS


For the petitioner         : Mr. Vivekananda Bose, Adv.,
                            Mr. Rahul Kumar Singh, Adv.,
                            Mr. Ratikanta Pal, Adv.

For Burdwan University     : Mr. N. C. Bihani, Adv.,
                            Mrs. P. B. Bihani, Adv.,
                            Mr. Soumyajit Ghosh, Adv.,
                            Mr. Soumya Mukherjee, Adv.


For respondent no.6        : Mr. Gourav Purkayastha, Adv.,

Mr. Pradeep Pandey, Adv., Md. Musharrof Hossain, Adv.

Hearing concluded on       : 18.04.2023


Judgment on                : 15.09.2023





Kausik Chanda, J.:-

It is the case of the petitioner that she was admitted to Shukla Devi

Academy (hereinafter referred to as, the college) for B.Ed. course for the

academic session 2016-2018. The said college is affiliated with the

University of Burdwan (in short, the university). After admission, the

college submitted her enrollment and registration form to the university on

September 20, 2016, along with the necessary fees. Accordingly, the

university allotted the petitioner a roll number, but no registration was

granted to her.

2. The petitioner submitted a representation to the university on

November 28, 2016, asserting, inter alia, that her qualification, "Sangeet

Bhaskar" from Pracheen Kala Kendra, Chandigarh, in Music, is equivalent

to a Master's Degree in Music from other universities and requested

registration.

3. While the university did not respond to the representation, it

permitted the petitioner to appear in all four-semester examinations for the

B.Ed. course. The college on July 31, 2018, communicated to the petitioner

that she had successfully completed the B.Ed. course. The university,

however, did not issue the mark sheet for the final semester.

4. On September 20, 2018, the university informed the college that its

Executive Council, in a meeting held on August 29, 2018, considered the

petitioner's application for registration and regretted its inability to

accommodate her prayer.

5. The petitioner made repeated representations to the university

seeking registration and publication of her result which remained

unanswered. The said representations were not responded by the

university.

6. It has been submitted by Mr. Vivekananda Bose, learned advocate

appearing for the petitioner that under the "University Ordinances Relating

to Doctoral Degrees", there is no bar to treat a diploma qualification as

equivalent to an under graduate degree. The said ordinance expressly

prohibits treating diplomas or certificates as post-graduate degrees for

admission.

7. Mr. Bose has posited that the university cannot decline to treat the

petitioner's diploma as equivalent to a degree. Under the aforesaid

Ordinance, a student may gain admission upon the production of a

certificate of a recognised body. Such a student is entitled to appear in an

examination only upon being enrolled at the university. The university did

not rescind the enrolment of the petitioner in any of the four academic

semesters and, therefore, could not cancel her candidature.

8. Furthermore, he has submitted that the petitioner did not suppress

any information regarding her educational qualification in her admission

form. She on her own accord, made the representation dated November 28,

2016, to the university disclosing her qualifications. After receiving the

letter dated November 28, 2016, it was open for the university to reject the

registration request. Mr. Bose has argued that it is iniquitous to decline

registration and withhold the degree after her successful completion of the

B.Ed. course.

9. To support this submission, Mr. Bose has relied upon the judgment

reported at (1976) 1 SCC 311 (Shri Krishnan v. Kurukshetra

University, Kurukshetra) and (2009) 1 SCC 610 (Guru Nanak Dev

University v. Sanjay Kumar Katwal).

10. Conversely, the university has contended that the petitioner was

admitted to the college for the B.Ed. course under the management quota

and not through centralised university-level counselling. There was no

occasion on the part of the university to verify the educational credentials

of the petitioner at the time of her admission. Generally, once candidates

are admitted to a college or institution, the said institution applies for

registration of its students. Once the documents are checked and found to

be in order by the registration department of the university, the respective

college/institution is intimated for collection of the registration certificate.

11. For the B.Ed. session 2016-2018, the college admitted a total of 100

students 40 of whom were from the home university. One student applied

for restoration of registration, leaving the college to request registration for

the remaining 59 students.

12. Regarding the registration of the petitioner, the objection was raised

by the university on two grounds: non-submission of the original migration

certificate and the fact that Pracheen Kala Kendra, wherefrom the

petitioner obtained her diploma in Music, was not included in the list of

UGC approved institutions. The college was aware that registration had not

been granted to the petitioner when it collected the registration certificates

for the other students of the college on December 20, 2016.

13. Mr. N.C. Bihani, appearing on behalf of the university, pointed out

that the University Grants Commission by its letter dated March 18, 1980,

had clarified that institutes like Pracheen Kala Kendra were not considered

as universities under the University Grants Commission Act, 1956. The

said website of Pracheen Kala Kendra under the head "Recognition",

provides a list of universities that have granted recognition to the

qualification of "Sangeet Visharad" and "Sangeet Bhaskar" awarded by the

said institute. The University of Burdwan does not feature on the said list.

14. He has further submitted that the Pracheen Kala Kendra is also not

included in the approved list of Burdwan University. As per Clause 16 of

the Information Sheet with regard to admission in a two-year B.Ed.

programme, selected candidates must produce all testimonials in original

at the time of admission. Mere provisional recommendation of any

candidate through counselling does not by itself ensure admission; a

candidate's original testimonials should be in order.

15. Mr. Bihani has emphasised that the university has the right to

exclude any name for any suppression of facts on the part of the applicant

or if any mistake in calculation of grade point is detected at any stage

before and after admission. The petitioner was well aware that Burdwan

University did not feature in the list of universities granting recognition to

the qualifications of Pracheen Kala Kendra, yet she went ahead with the

admission by suppressing the facts. Such deliberate suppression and

misrepresentation constitute fraud and the act of fraud vitiates everything.

In support of his submission, Mr. Bihani has relied upon the judgments

reported at (2005) 7 SCC 605 (Bhaurao Dagdu Paralkar v. State of

Maharashtra), (2010) 8 SCC 383 (Meghmala v. G. Narasimha Reddy),

(2003) 8 SCC 311 (Ram Preeti Yadav v. U.P. Board of High School &

Intermediate Education) and (2012) SCC OnLine Cal 8701 (Kartick

Ruidas v. State of West Bengal).

16. Mr. Bihani has further submitted that a student cannot be allowed to

continue and complete the course when he does not possess the requisite

eligibility criteria. In support of his submission, Mr. Bihani has relied upon

the judgment reported at (2008) 17 SCC 611 (Mahatma Gandhi

University v. GIS Jose).

17. Mr. Bihani suggests that rules and regulations cannot be allowed to

be defeated merely because a student was allowed to be admitted to any

college and no right accrues on the basis of the same. In this regard, he

has relied upon the judgment reported at (2010) 11 SCC 159 (Maharshi

Dayanand University v. Surjeet Kaur) to contend that a student, who is

not entitled to join the course and has signed a declaration in the

admission form, is bound by the declaration and not entitled to any relief.

Mr. Bihani has placed reliance upon a judgment reported at (2011) SCC

OnLine Del 369 (Rohit Rakesh v. Indira Gandhi National Open

University). Additionally, he has placed reliance upon a judgment reported

at (2008) SCC OnLine Del 370 in this regard.

18. It is imperative to underscore that the Information Sheet issued by

the university for admission to the two-year B.Ed. programme for the

academic year 2016-2018 prescribed, inter alia, the following eligibility

criteria:

"Eligibility : Candidates (both Fresh & Deputed) with at least 50% marks either in the Bachelor's Degree and/or in the Master's Degree in Science/Social Science/Humanity/Commerce, or Bachelor's in Engineering or Technology with specialization in Science and Mathematics with 55% marks, or any other qualification equivalent thereto, be eligible for application. There shall be relaxation of 5% marks in favour of SC, ST and PwD (Persons with disabilities) categories.

N.B.: 50% or 45% marks (as the case may be) in Bachelor's degree with Hons. may be determined either on the basis of Hons. marks only or on the basis of Hons. marks and marks of the elective subjects taken together."

(emphasis added)

19. It is important to emphasise that the qualification, "Sangeet

Bhaskar" from Pracheen Kala Kendra is not inherently incapable of being

treated as equivalent to a degree granted by a recognised university.

20. First of all, it has to be noticed that the University Grants

Commission by a letter dated March 18, 1980, addressed to the Secretary

of Pracheen Kala Kendra clarified as follows:

"Sir, I am directed to refer to your letter No.PPK/10 10 17/79 dated the 17th December, 1979 on the above subject and to say the institutions like yours which are not considered as Universities within the U.G.C. Act are not competent to award degrees and use the name 'University'. However institutions like yours are competent to award certificates and diplomas. No advice has been given by the U.G.C. to any University to the effect that they should not appoint persons who have taken diplomas or certificates from non-university institutions which may be considered by the universities as equivalent to degrees awarded by universities.

Yours faithfully, Sd/- illegible (O.M. Ramachandran) Under Secretary "

21. Importantly, it has not been disputed by the parties that many

universities across the country treat the certificates and diplomas issued by

Pracheen Kala Kendra on par with their degrees for employment as well as

for taking admission to higher course of study. The website of Pracheen

Kala Kendra prominently displays a list of such universities.

22. The Burdwan University did not take any definitive stance on the

recognition of the qualifications obtained from Pracheen Kala Kendra before

the petitioner completed the B.Ed. Course.

23. It is also an admitted fact that the petitioner in her application form

submitted to the college duly disclosed her qualifications. It is also not

disputed by the university that in her representation dated November 28,

2016, the petitioner again forthrightly disclosed her qualification obtained

from Pracheen Kala Kendra and requested the Registrar of the University to

grant registration based on her qualification. The university abstained from

rendering any decision with regard to the recognition of the said

qualification but allowed the petitioner to participate in all four-semester

examinations. The university by a resolution dated August 29, 2018,

"regretted its inability to accommodate the prayer" of the petitioner only

after she had successfully completed the course.

24. The university was aware of the petitioner's qualifications and it

refrained from registering the petitioner, while concurrently granting

registration to the other 58 students of the college. It is reasonable to

presume that the university, cognizant of these circumstances, deliberately

permitted her to participate in all the semester examinations, culminating

in a successful course completion.

25. The university retained the prerogative to determine the equivalence

of the petitioner's qualifications to a degree qualification. Remarkably, the

university opted to exercise this discretion in a manner adverse to the

petitioner, only after it had afforded her the opportunity to complete her

course. The university's failure to make a timely determination regarding

the recognition of the petitioner's qualifications, following her

representation dated November 28, 2016, effectively precluded any

challenges to her eligibility subsequent to her successful completion of the

course.

26. In case of Kurukshetra University, it was held as follows:

"6. ...

The last part of this statute clearly shows that the university could withdraw the certificate if the applicant had failed to attend the prescribed course of lectures. But this could be done only before the examination. It is, therefore, manifest that once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the university to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear.

...

7. ...

In   these       circumstances,     therefore,     once   the
appellant        was   allowed      to    appear    at    the

examination in May 1973, the respondent had no jurisdiction to cancel his candidature for that examination. This was not a case where on the undertaking given by a candidate for fulfilment 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-fulfilment 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."

27. The relevant paragraph of Guru Nanak Dev University (supra) is

quoted below:

"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 recognised by the appellant University.

...

22. Having regard to the above we are of the view that irrespective of the fact that MA (English) (OUS) degree secured by the first respondent from Annamalai University through distance education, may not be recognised as an equivalent to the Master's degree of the appellant University, his admission to the law course should not be cancelled. The appellant University is directed to treat the admission as regular admission and permit the first respondent to appear for the law examination, and if he has already appeared for the examination, declare his result. The appeal is disposed of accordingly."

28. The petitioner's case, in fact, enjoys a more favourable standing. As

previously noted, the petitioner was not an intrinsically ineligible

candidate.

29. In view of the aforesaid facts, the judgments cited by Mr. Bihani had

no relevance since there was no suppression or misrepresentation of her

qualification and the ineligibility of the petitioner was determined by the

university after she had successfully completed the course.

30. This writ petition is accordingly allowed with a direction upon the

university to grant the petitioner registration and issue the mark sheet and

the certificate in her favour within two weeks from the date of

communication of this order.

31. Accordingly, W.P.A. No.11002 of 2021 is allowed.