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Km. Poonam Sengar D/O Dharam Vir ... vs State Of U.P. Through Principal ...

High Court Of Judicature at Allahabad|20 March, 2008

JUDGMENT / ORDER

JUDGMENT S.R. Alam and Vineet Saran, JJ.
1. This intra court appeal arises from the judgment of the learned Single Judge dated 14.3.2008 dismissing the appellants' writ petition No. 13670 of 2008 for issuance of a writ of Mandamus commanding the University to permit them to appear in the M.A. First Year Examination which has already commenced from 17.3.2008.
We have heard Sri V.C. Misra, learned Senior Counsel for the appellants and Sri Sanjay Kumar Singh for the respondent-University.
2. It is vehemently contended on behalf of the appellants that they were admitted in M.A. Previous in Education and Sociology by the management of Smt. Laungsri Devi Degree College, Nagla Ali, Hathras and are pursuing their studies since August, 2007. It is contended that the institution in question was given no objection certificate to run post graduate course in the above subjects on 17* August, 2007 and thereafter inspection was also made. The experts having found that the institution fulfills the requirement, submitted report in the month of December, 2007 recommending grant of affiliation in favour of the institution. It is also submitted that only when no objection certificate was issued in favour of the institution, the admissions of the appellants were made, therefore, for the laches or inaction on the part of the University or State Government in deciding the matter finally for grant of affiliation, the appellant-students cannot be made to suffer.
3. On the other hand learned Counsel for the University opposed the prayer and pointed out that one of the conditions of the No Objection certificate was that no admission of any student shall be made until the affiliation is granted.
4. We have considered the submissions made on both sides. The institution in question has not been granted affiliation or recognition to impart post graduate course in the above subjects till date. The institution has only applied, upon which No Objection Certificate which is required, has been issued and inspection has also been made but the final decision on the recommendation of the inspection team is yet to be taken by the appropriate authority, including the State Government. Mere inspection or issuance of no Objection Certificate does not amount to grant of affiliation and no institution, in the absence of affiliation or recognition, has right to impart the said course or to take admission for imparting such course. Besides that, there was clear stipulation in condition No. 1 of the No Objection Certificate that the institution shall not admit any student before grant of affiliation, yet the admission was taken, which was not proper. The very admission being in violation of the condition was illegal and it does not confer any right to the petitioner-appellants to claim for appearing in the examination. It further appears from the judgment of the Hon'ble Single Judge that the Vice Chancellor of the University recommended for grant of affiliation from the Session 2008-09 and not from 2007-08, against which the appellants claim to have been admitted. Thus, merely on the ground that they have been given admission, the prayer for issuance of mandamus permitting them to appear in the examination cannot be issued. The Hon'ble Apex Court has deprecated the practice of permitting the students of unrecognized or unaffiliated institution to pursue their studies and to appear in the examination under the interim orders of the Court. In the case of Andhra Pradesh Christians Medical Educational Society v. Government of Andhra Pradesh the Hon'ble Apex Court did not approve the direction to the University to protect the interest of the students who have been admitted in clear transgression of the provisions of the University Act and the Regulations framed thereunder. In the case of State of Tamil Nadu v. St. Joseph Teachers Training Institute the Hon'ble Apex Court held that the, students of unrecognized institutions cannot be allowed to sit at the examination and the High Court committed error in permitting such students to appear in the examination. In the case of State of Maharashtra v. Vikas Sahebrao Roundale the Hon'ble Apex Court held that the students of unrecognized and unauthorized educational institutions could not have been permitted by the High Court to appear in the examination. Similar view was expressed in the case of Guru Nanak Dev University v. Parminder Kr. Bansal 1993 AIR SCW 2695. Following the aforesaid judgments the Apex Court in the case of Regional Officer, C.B.S.E. v. Ku. Sheena Peethambaran and Ors. of the Judgment observed as under:
This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders, passed in the petitions. In most of such cases it is ultimately pleaded that since the course was over or the result has been declared, the matter deserves to be considered sympathetically. It results into very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions.
5. It is equally well settled legal position that a writ of mandamus can be issued against the University or any other examining body only when their action is in contravention of law or they are not discharging their legal duties and obligations. Writ of mandamus is granted to compel the performance of a duty laid down by a statute. Therefore in the absence of any such statutory duty or legal obligation, no mandamus can be issued. Further, a writ of mandamus can not be issued commanding the University to act in violation of the statutory provisions. As per the statute, only the students of a recognized and affiliated institution can be allowed to pursue studies and to appear in the examination conducted by the University. Therefore, if any life' mandamus is issued commanding the University to permit the student of an unrecognized and unaffiliated institution to appear in the examination, that would mean to issuance of direction to the University to disobey the statute to which it owes its existence. The Hon'ble Apex Court in the case of Andhra Pradesh Christians Medical Educational Society (supra) observed as under:
...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.
Thus in view of the exposition of law made by the Hon'ble Apex Court and in the facts and circumstances of the case, no writ of mandamus can be issued commanding the University to permit the petitioner-appellants to sit in the examination.
No other point is urged before us.
6. In view of above, we do not find any factual or legal error in the judgment of the Hon'ble Single Judge. The State Government shall, however, consider and take final decision on the recommendations made by the University expeditiously before the commencement of the next session.
The appeal being without merit is dismissed with the above observation. However, there shall be no order as to cost.
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Title

Km. Poonam Sengar D/O Dharam Vir ... vs State Of U.P. Through Principal ...

Court

High Court Of Judicature at Allahabad

JudgmentDate
20 March, 2008
Judges
  • S Alam
  • V Saran