Sai Institute Of Paramedical And ... vs State Of Uttarakhand And Others
2021 Latest Caselaw 3136 UK

                 IN HIGH COURT OF UTTARAKHAND
                           AT NAINITAL
                     Writ Petition No.429 of 2021 (M/S)

Sai Institute of Paramedical And Allied Sciences                           .....Petitioner
                                            Vs.

State of Uttarakhand and others                                          ...Respondents


Advocate: Mr. Bhupesh Kandpal, Advocate for the petitioner.
          Mr. M.S. Bisht, Brief Holder for the State of Uttarakhand/respondent no.1.
          Dr. Kartikey Hari Gupta, Advocate for respondent no.2.
          Mr. Shailendra Nauriyal, Advocate for respondent no.3.


Hon'ble Sharad Kumar Sharma, J.

(Through Hybrid Mode)

The institution of the petitioner imparts education in various disciplines of Paramedical Sciences and particularly they are engaged in imparting education to the students in the discipline of BPT i.e. Bachelor of Physiotherapy, B.Sc. MLT i.e. Bachelor of Science in Medical Laboratory Technology, B.Sc. MM i.e. Bachelor of Science in Medical Microbiology, MPT and M.Sc. MLT.

2. The contention of the learned counsel for the petitioner is that the institution of the petitioner was granted an affiliation to conduct the aforesaid courses in accordance with the provision contained under Section 37(2) of the U.P. State Universities Act of 1973. The affiliation herein in relation to the petitioner's institution would be read in consonance to the definition of affiliated colleges as it has been provided under Sub Section (2) of Section 2 of the U.P. State Universities Act of 1973, as it was then prevalent. The affiliation, thus granted to the petitioner's institution, which was under Sub Section (2) of Section 37 of the Act, continued to operate and under the strength of the affiliation granted, under the aforesaid provisions of Chapter 7 of the Act of 1973, the petitioner contends that he admitted the student, for the academic Sessions of 2019-2020 and 2020-2021 and accordingly they have pursued their studies. In support of his contention, the petitioner submits that the affiliation

was granted to the petitioner's institution by the respondent-University by an Order No.6025/G.S.(62)(lEc)rk)/2003.

3. During the intervening period, while the life of subsistence of affiliation granted by an order of 01.12.2003 under U.P. State Universities Act 1973, to the petitioner, continued to operate, the University of respondent no.2; acquired the status of being a Central University, under the Act of 2009 called as Central Universities Act, 2009.

4. The contention of the petitioner is that if the provisions of Section 4(f) of the said Act of 2009 is taken into consideration and is read in correlation to the affiliation of the institutions contemplated therein under the Central Act, in fact, by the implications of Section 4(f) the affiliations, which were already granted under Section 37(2) of the U.P. State Universities Act of 1973, they continued to be protected under the Central Act of 2009, that means their status of being an affiliated institution continued to operate till they were legally de- affiliated in accordance with law. Section 4(f) of the Central Universities Act of 2009 is extracted hereunder:-

"(f) all colleges, Institutions, Schools or Faculties, and Departments affiliated to, or admitted to the privileges of, or maintained by, Guru Ghasidas Vishwavidyalaya, Doctor Harisingh Gour Vishwavidyalaya and Hemvati Nandan Bahuguna Garhwal University shall stand affiliated to, or admitted to the privileges of, or maintained by, Guru Ghasidas Vishwavidyalaya, Doctor Harisingh 6 Gour Vishwavidyalaya and Hemvati Nandan Bahuguna Garhwal University, respectively, established under this Act."

5. The petitioner's contention is that at the time when they have granted admission to the students for the aforesaid academic years referred above, since the petitioner continued to enjoy the status of being an affiliated institution, under Section 37(2) of the U.P. State Universities Act of 1973, and that status of affiliation was continuing, to be enjoyed under the provision of Section 4(f) of the Central Act of 2009, and particularly when there was no specific order passed by the respondents subsequently, ever de-affiliating the petitioner's institution, while exercising the powers under Section 6 of the Central Act of 2009, to be read with under the relevant U.G.C. regulations, they

would continue to enjoy the status of being an affiliated institution and hence, the result of the students, who have taken their examination for the aforesaid discipline which stood affiliated for the academic year 2019-2020 and 2020- 2021, ought not to have been curtailed on the basis of the impugned correspondence dated 04.02.2021, which was passed by respondent no.2, which is under challenge.

6. On the other hand the stand taken by the Brief Holder, is that in fact the affiliation of the petitioner's institution ought to have been reckoned in view of the State legislature i.e. in view of the provisions contained under the Act called as the Hemwati Nandan Bahuguna, Medical Education Universities Act of 2014. Though this Court, has got an altogether different opinion with regards to as to whether the implications of the affiliated colleges provided under Sub Section (N) of Section 2 of the State Act of 1973, could be borrowed in contradiction to the provisions contemplated under the Central legislation, but since for the purposes of deciding this writ petition, the permission of affiliation of the college, has been protected under Section 4 of the State Act of 2014, which is extracted hereunder:-

"4. Jurisdiction and Affiliation (1) The University shall, in the exercise of its powers under this Act, have jurisdiction over the whole State of Uttarakhand.

(2) Every College or Institution imparting education in medical sciences in the State on the date of commencement of this Act shall apply for affiliation afresh. The State Government, by notification shall constitute a high level screening committee for a certain period of time for this purpose. No college shall be run in the state/admit new students without affiliation from the University.

Provided that a student pursuing his study in medical sciences in any college or institution on the date of such commencement of the Act shall be entitled and allowed to continue and complete such study under the erstwhile University after such commencement and the erstwhile University shall hold examination of such students and confer degree or any other academic distinction on him.

(3) Doon Medical College shall be main campus of the University."

7. Wherein under its proviso, it is provided that those students, who have completed their studies in the medical sciences from any colleges or the institutions, which earlier stood affiliated under the State Act of 1973 or

thereafter under the Central Act of 2009, they would continue, to pursue their studies and they would be permitted to complete their studies, under the provisions of the Universities Act or the law prevalent at the time when the institution itself was affiliated. In view of the protection granted under the proviso to Section 2 of Sub Section (4) of the State Act of 2014, hence with the enforcement of the Hemwati Nandan Bahuguan Medical Education Universities Act of 2014, itself which was enforced by virtue of the gazette notification dated 18.02.2014, will not have any bearing, as far as the academic years for which the petitioner has permitted the students to take their education in the para- medical sciences, as already referred to in the disciplines detailed above. This principle that the implications of the Act of 2014, cannot be attracted for the purposes of creating any restrictions in acquiring the qualification being imparted to the students for the academic year 2019-2020 and 2020-2021, this logic and reasoning is further substantiated from the analogy that the provisions of affiliation contemplated under the State Act of 2014, apart from the fact that the affiliation is protected as per Section 4 of the Act of 2014, even otherwise also being a State Act, it will not have an overriding effect to the provisions of Section 4(f) of the Central Act of 2009. Since, it is not in dispute that the affiliation granted to the petitioner's institution under the Act of U.P. State Universities Act of 1973 on 01.12.2003, continued to operate, the grant of admission to the students for the academic year 2019-2020 and 2020-2021 cannot be faulted.

8. Hence in view of the fact that the it's no once case in the writ petition, that the petitioner's institution after the grant of affiliation under Section 37 (2) of the Act of 1973, was ever de affiliated either under the Central Act or under the State Act of 2014, no anomaly could be apparently found so far the petitioner has permitted the students to pursue their studies, to the students for the academic year 2019-2020 and 2020-2021. Hence in principal there cannot be any embargo as such in declaring the result of the students, who have already taken their education for the aforesaid academic years and consequently in view of the protection granted under Section 4(f) of the Act of 2009, to be read with Section 37(2) of the U.P. State Universities Act of 1973, the respondent nos.2 and 3, by way of writ of mandamus are directed to declare the result of the students for the academic sessions 2019-2020 and 2020-2021,

which is a subject matter of the consideration in the present writ petition. The aforesaid declaration of result would be made by the respondent-University within a period of two weeks from today.

9. Having said so that the respondents are directed to declare the result of the students for the said academic years, it is needless to say that the aforesaid recognition of an affiliation on a conjoint reading of the proviso 3 of the Act, referred to above will not preclude the respondent nos.2 &3 to proceed, if at all it is require in accordance with law under Section 6 to be read with U.G.C. Regulations for the purposes of the de-affiliation if at all it is required under given set of circumstances.

10. Subject to the above the writ petition stands allowed. A writ of mandamus is issued to respondent no.2 to declare the result of the students for the aforesaid academic years 2019-2020 and 2020-2021, which has already been referred in the body of the judgment.

(Sharad Kumar Sharma, J.) 17.08.2021 Arti