1. Heard Shri Lalit Kishore Tiwari, learned counsel for petitioners, Shri Raj Baksh Singh, learned Additional Chief Standing Counsel for opposite party No. 1 and Shri Savitra Vardhan Singh, learned counsel for the opposite party Nos. 2 to 4 through video conferencing.
2. This petition has been filed for the following prayers:-
"(i) to issue, a writ, order or direction in the nature of MANDAMUS thereby commanding/ directing the opposite parties to exempt the petitioners from depositing examination fees of candidates of their respective institutions if exams are not conducted due to Covid-19 pandemic.
(ii) to issue, a writ, order or direction in the nature of MANDAMUS thereby commanding the opposite parties not to compel the petitioners institutions to deposit examination fees till examinations are physically conducted and further not to adopt any coercive measures in the event of non deposition of examination fees.
(iii) to pass any other suitable order or direction which this Hon'ble Court may deem fit, just and proper in the interest of justice.
(iv) to award the cost of the writ petition."
3. Learned counsel for the petitioners submits that the petitioners are the degree colleges affiliated to Chhatrapati Shahuji Maharaj University, Kanpur, up to the present academic year, under the Universities Act, 1973 and are self financed colleges. He submits that in the year 2020 due to Covid-19 pandemic and lockdown imposed by the Central Government extended from time to time, the educational institutions were closed. Regular classes were not physically conducted, but online educational system was introduced. The Government decided to promote the students to the next higher classes to prevent the spread of Covid-19 pandemic. The opposite parties decided to conduct examination of the final year courses, but for the students of the other years it was decided that they would be promoted to the next higher classes on the basis of their previous qualitative merits.
4. Shri Lalit Kishore Tiwari, submits that the Registrar, Chhatrapati Shahuji Maharaj University, Kanpur-opposite party No. 3 issued office order dated 31.08.2020 for conducting examination of final years for the academic session 2019-2020 and the petitioners deposited examination fees in respect to all the enrolled students, but the examination of only final year was conducted and the students of other years were given promotion to the next higher class. In the year 2021, in view of the second wave of Covid-19 and the lockdown imposed, the education institutions were closed and physical classes were not being conducted and education was being imparted through online. He further submits that the petitioners are charging minimum fee from the students and due to Covid-19, special concession in the fee has also been granted. He submits that the opposite parties vide order dated 19.03.2021 have directed the colleges to deposit examination fee fixing the date for such deposit which has been extended from time to time.
5. The submission of the learned counsel for the petitioners is that they be not compelled to deposit examination fee if the examinations are not physically conducted. He submits that the petitioners have submitted a representation to the Vice Chancellor of the University-opposite party No. 2, to the effect that the examination fee be charged from those students whose examinations are to be conducted and for the other students only processing fee may be charged and not the examination fee, if those students are to be promoted on the basis of qualitative merits.
6. Shri Savitra Vardhan Singh submits that out of the petitioner institutions, eight institutions, have collected examination-fee from the students, of which challans have also been generated, but they have not deposited that fee with the University. He submits that most of the colleges affiliated to different Universities have already deposited the examination-fee with their respective Universities, including some other colleges affiliated to the the Kanpur University.
7. Shri Savitra Vardhan Singh further submits that the State Government has constituted a committee for making recommendation for conducting or not conducting the examination of the students, other than the final year students, which committee has submitted the report to the State Government, but the State Government has yet not taken any decision. He submits that even if the decision is taken not to conduct the examination, other than the final year examination, for the current academic session, still preparations are made for conducting examination in which lot of expenses are incurred and consequently, only because the examination is not conducted it cannot be that any examination fee cannot be charged from the petitioners. In such a case also the petitioners would be liable for depositing examination fee. He submits that the Competent Authority to take decision with respect to the grievance of the petitioners is the opposite party No. 1.
8. Shri Raj Baksh Singh, learned Additional Chief Standing Counsel submits that the matter as regards conducting or not conducting the examination of students other than final year, is pending before the State Government, with respect to which the Committee constituted by the State Government has submitted its report. He further submits that the petitioners have not made any representation to the competent authority-State Government, but have made their representation to the Vice Chancellor-opposite party No. 2, and a copy thereof has been forwarded to the Principal Secretary, Higher Education, Government of U.P.
9. Shri Lalit Kishore Tiwari submits that the petitioners would represent their cause to the State Government-opposite party No. 1.
10. Be that as it may, there is unanimity that the grievance of the petitioners can be considered and appropriate decision may be taken by the Competent Authority, opposite party No. 1- Principal Secretary, Higher Education.
11. This Court is of the considered view that the matter, if the examination fee is or is not to be charged from the petitioners and if it is to be charged, what should be the amount, in case the examinations, other than final examination, are not conducted by the University, due to Covid-19 reasons, pertains to the policy decision, which at the first instance be taken, on consideration of various aspects, by the competent authority-opposite party No. 1. The policy decision is open to judicial review but let there be, first, a decision by the competent authority.
12. In view of the aforesaid, with the consent of the parties, this petition is being disposed of finally, but without entering into the merits, directing the petitioners to make a fresh representation to the Principal Secretary, Higher Education, Government of U.P.-opposite party No. 1 within a period of 15 days from today, raising their grievances, and if such a representation is made the opposite party No. 1 shall consider and decide the same and take appropriate decision within a further period of one month.
13. It is clarified that this Court has not made any observation on the merits of the petitioners' case.
14. It is further clarified that there is no stay on the orders directing deposition of examination-fee, but any deposition of the examination fee, in pursuance of those orders shall remain subject to the final orders to be passed by the opposite party No. 1 on the petitioners' representation.
15. With the aforesaid observations/ directions this writ petition stands disposed of finally.
Order Date :- 26.5.2021 Mustaqeem