Rule. Shri Thacker, learned advocate waives service of Rule on behalf of respondents. By consent, Rule is fixed forthwith.
Heard Shri Amin, learned advocate for the applicants, who states under instructions of Shri Milanbhai Manharlal Pobaru, Trustee of the Trust Lt. Manharlal Vrajlal Pobaru Education and Charitable Trust, that the college is fulfilling all the requirements and eligibility criteria so far as infrastructure facilities and amenities are concerned. The College could not make appointment of Librarian and PTI Physical Training Instructor despite of efforts on account of no eligible candidates were available and as on day. The post of Principal is also vacant, wherein, Incharge Principal is discharging duties and he undertakes to comply and fill-up all these posts within 3 months from today. He also submitted that the University has in fact granted affiliation since 2008 and conducted examination of students pursuant to said recommendations, which was continuing year after year and only in the year 2012 without supplying copies of report of Dean, the University abruptly decided to withdraw the affiliation gradually. Though the said resolution of Syndicate reproduced at page-19 contains specific decision qua not accepting the enrollment fees and enrollment forms of the students, the University has accepted the enrollment fees and enrollment forms of the students. The University has accepted the enrollment fees and forms of 7 students on 17.8.2012 and 1 student on 24.8.2012 i.e. admittedly after the decision of the Syndicate, which was communicated to the College on 20.8.2012 as the decision was taken on 23.7.2012.
Shri Thacker, learned advocate appearing for respondents relied upon the decision of the Supreme Court in case of Adarsh Shiksha Mahavidyalaya and others Vs. Subhash Rahangdale and others, reported in (2012) 2 SCC 425 with specific emphasis upon observation of the Supreme Court in para-87 in clause (xviii), submitted that such an institution and student thereof cannot be protected by any interim order in light of clear mandate of the Apex Court. He also relied on the decision of the Apex Court in case of Sunil Oraon (Minor) Through Guardian and others Vs. CBSE and others, reported in (2006) 13 SCC 673, which is on the same consideration. He further submitted that granting of interim relief would amount to virtually granting the petition at this stage, which is not permissible in eye of law. The applicants have in fact been informed time and again for compliance with the provisions for making them eligible and continuing being its affiliated but page-38 would see that as many as three communications i.e. 10.05.2012, 12.06.2012 and 13.06.2012 have not been complied with in any manner. The counsel for respondents invited this court s attention to page-19 and submitted that as the college did not comply with the procedure and provisions and standard for affiliation, the decision was taken and communicated to the college and in light of the Apex Court decision, no interim relief be granted.
At this stage, learned counsel appearing for applicants submitted that he shall see to it that the requisite undertaking from the aforesaid Trustee as well as 29 students, who are seeking admission in the examination shall be filed individually within 10 days from today saying clearly that if the court permits them to appear in the examination, students or college will not claim any equity on that basis nor would they be entitled to claim any right of having the result to be declared and therefore, their appearance in the examination would be governed by the further order that may be passed in the main matter.
The Court is of the view that the Civil Application is required to be partly allowed in view of the unequivocal statement came forward from the learned counsel for the applicant College, as the direction to the university for permitting 29 students to take the examination is expressly going to be made subject to the result of main petition and further order that may be passed in the main matter and the students will not claim any right of having the result to be declared. No hardship or loss is likely to be caused to the university by the direction of permitting the students to appear in the examination, as against that, if no permission is given to the students, then, irreparable loss is likely to cause to the students. Therefore, balance of convenience persuade this court to pass an interim direction for permitting the 29 students to be undertaken the examination without creating any right in their favour or equity, beside they are also to file undertaking as stated hereinabove.
The reason for granting such relief are as under:
The Court is of the view that the Apex Court decision would have to be understood and applied in a case where the facts are aptly applicable of being covered by that case. In the instant case, the Court cannot loose sight of the fact that College is recommended for affiliation since 2008 and the students, who have been admitted in the college, has also been affiliated by the university for examination that was conducted by the university. The fact remains to be noted that the communication taken on record namely the report of Dean, which is sought to be made basis for Syndicate decision dated 18.4.2012, is also not communicated to the applicant nor has there been any clear communication to the applicant asking it to provide or fulfill specific requirement, to be made up by the college for continuing the affiliation and/or provisional affiliation, so to say the least. Therefore, if the limited relief is not granted at this stage, as it is stated hereinabove, irreparable injury is likely to cause to the students, whose enrollment fees and forms were accepted even by the university even after the decision of the Syndicate, as could be seen from the aforesaid discussion. The return of examination forms and examination fees and not returning the enrollment fees would clearly indicate that no irreparable harm is likely to cause to the university if the students are permitted to undertake the examination with aforesaid clear undertaking.
Before parting with this order, the Court is at pain to note that entire act in question does not recognize any provisional or temporary affiliation nor there can be any affiliation which is periodical affiliation. The entire exercise undertaken by the University or omission on the part of State, betrays miserably lack of due care and caution dealing with the education. The institution also ought to have been prompt in sending compliance report to all concerned. Be that as it may. Today, by granting such limited relief, in fact an attempt is made to balance the equity without further creating any equity in favour of any parties, hence, it is hereby directed to the University to accept the forms of those 29 students in whose case the result are not to be declared and as assured by learned advocate for the applicants, the examination fees of said 29 students will be paid to the concerned authority before the office hours i.e. before 4-00 PM today itself and accordingly, the university is directed to issue admission card in favour of said 29 students and complete all the formalities as required. The Trustee as well as 29 students are also directed to file undertaking as stated hereinabove within 10 days from today.
Learned advocate appearing for respondents stated that the result of second year and third year have already been declared and in view of said statement, learned advocate for applicants is not pressing other relief.
Civil Application is partly allowed. Rule is made absolute to the aforesaid extent. Direct service permitted today. Registry is directed to give copy of this order forthwith to learned counsel for the respondents for onward communication.
(S.R.BRAHMBHATT, J.) pallav Page 6 of 6