Heard Sri Manish Kumar, learned counsel for the petitioner and learned Standing counsel as well as Sri Waseequddin Ahmed and Sri Shishir Jain on behalf of the respondents.
Sri Manish Kumar, learned counsel for the petitioner for the purpose of interim relief submits that the petitioners namely (a) Saraswati College of Professional Studies Ghaizabad (b) Shiva Institute of Management Studies, Ghaziabad and (C) Vijay College of Education, Ghaziabad were initially granted recognition by the National Council for Teacher Education (NCTE) for running B.Ed. Course and the seats which were allotted for the B.Ed. Course by the concerned respondent to the petitioners are as follows:- (a) 100 (b) 100 and (c) 200 respectively. He further submits that as a matter of fact on record against the said allotment only 80, 92 and 168 students had joined the institution of the petitioners respectively. In view of the abovesaid facts, some seats remained vacant in the institutions.
On 22.05.2009, O.P. No. 4 published information in the Newspaper for the second counseling, scheduled to take place from 27.05.2009 and also mentioned that no further counseling shall take place thereafter. In spite of the said facts, the vacant seats in the petitioners' institutions were not filled up, as such having no other alternative before them, they made a representation to the Universities and when no heed was paid in the matter in question they admitted the students against the vacant seats for the academic session 2008-09 for pursuing B.Ed. Course along with the regular students provided through counseling. The said students thereafter started their studies so entitled for appearing in the final examination of B.Ed. for academic session 2008-09.
It is further submitted by learned counsel for the petitioner that on 01.04.2010, petitioner No. 1 made a representation to the respondent-university for depositing the fees as well as examination form of all 100 students including 80 students allotted through counseling and 20 students admitted by the petitioner against the vacant seats. However respondents-universities in an arbitrary and illegal manner does not accept the examination fees and examination form of the 20 students who were admitted by the petitioner against the vacant seats.
In view of the abovesaid facts, the petitioners' institutions submitted a representation before the O.P. No. 1 praying therein that the necessary direction be issued to O.P. Nos. 2 and 4 to permit the students admitted by the petitioner to appear in the examinations scheduled to be commenced from 10.11.2010 but no heed has been paid for redressal of the grievances.
Sri Manish Kumar, learned counsel for the petitioner submits that the action on the part of the universities (O.P. Nos. 2 and 4) thereby not allowing the students who are admitted by the petitioners against the vacant seats in the B.Ed. course is an action contrary to the Government Order dated 20.08.2008 for academic session 2007-08. He further submits that in identical situation and circumstances this Court in Writ Petition No. 2645 (MS) of 2010 Ateesh Kumar Yadav and others has passed an interim order on 06.05.2010, the relevant portion relied by him is as under:-
"The petitioners are seeking permission to appear in the B.Ed. Examination of the Academic Year 2008-09, which commenced from 6th of May, 2010 as a regular students,on the ground that they are duly admitted students by the College being fully covered under the terms of Government Order dated 12th of August, 2008, but since the same was restricted only for the academic year 2007-08 they are not being permitted to appear in the present academic session. The position is the same, but till date for the academic session 2008-09 the Government has not taken any decision."
In addition to the abovesaid facts, counsel for the petitioner also submits that the impugned action on the part of the respondent Nos. 2 and 4 is contrary to the law as laid down by Apex Court in the case of Association of Management of Unaided Private Medical & Dental College Vs. Pravesh Niyantran Samiti and others (2005) 13 SCC 704, has held has under:-
"We have heard learned counsel. There can be no doubt that whatever procedure is followed, the admissions must be only on the criteria of merit and merit alone. Without further going into the details of submission and accusations made, one way or the other, for the present Academic Year 2005-2006, we modify the order dated 13.5.2005 and direct that the centralised admissions in respect of management quota seats shall be conducted though not by the State Government but by the Association of Management of Unaided Private Medical and Dental Colleges on the basis of same selection process which is given in para 10 of the brochure issued by the Government seats for the year 2005-2006."
Accordingly, Sri Manish Kumar, learned counsel for the petitioner submits that the students who are admitted by the petitioner against the vacant seats in the course in question may be allowed provisionally to appear in the examination scheduled to take place from 10.11.2010 by the respondent-university.
Sri Waseequddin Ahmed, who has put appearance on behalf of the respondent Nos. 2 and 3 has raised a preliminary objection that the relief as claimed by the petitioner thereby directing the respondent-university to allow the students admitted by the petitioners' institution in the examination in question cannot be granted as the said respondents-universities are situated in District Meerut and Agra and the petitioners' institutions are situated in District Ghaziabad, so this Court has no territorial jurisdiction to grant interim relief as claimed by the petitioner. In support of his argument he has placed reliance on the law as laid down by the Apex Court in the case of Nasiruddin Vs. State Transport Appellate Tribunal AIR 1976 SC 331 and by this Court in the case of Nitya Nand Tewari Vs. State of U.P. and others (FB) 1994(12) LCD 1181.
Sri Waseequddin Ahmed, further submits that the action on the part of the petitioners to admit the students against the vacant seats is contrary to law as laid down by this Court in Full Bench decision of Tuples Educational Society and another Vs. State of U.P. and others 2008 (26) LCD 687.
It is further submitted on behalf of the contesting respondent that the State Government vide Government Order dated 04.06.2010 directed all the State Universities that all the vacant seats for the B.Ed. Course shall be filled up through counseling and even if the students under NRI quota are not available even then than the seats shall be filled up through counseling. In the instant case admittedly the petitioner institutions admitted the students directly and the admissions made by the petitioner institutions are illegal and the university is not bound to hold the examination of those students which were admitted by the petitioner's institution directly. So, the petitioner is not entitle for any relief.
I have heard counsel for the parties who are present today for the purpose of interim relief and gone through the record.
Undisputed facts of the present case are that for the academic session 2008-09 Common Entrance Test and the students who were allotted to the petitioners institution through counseling by O.P. No. 4 are 80, 93 and 168 in number respectively against the sanctioned seats of 100, 100 and 200 respectively. As a result of which 20, 7 and 32 number of seats in the petitioners' institutions remained vacant. Accordingly, the petitioners-institutions admitted students against the vacant seats for B.Ed Course for academic session 2008-09 and they started pursuing their course.
Preliminary objection as raised by Sri Waseequddin Ahmed, learned counsel for respondents that in view of the relief as claimed by the petitioner in the present case that the said students may be provisionally allowed to appear in the B.Ed. Examination scheduled to take place from 10.11.2010 is concerned, admittedly, in the present case after admitting the said students against the vacant seats, the petitioners made a representation to the O.P. No. 1 on 01.04.2010 (Annexure-4) with the prayer that the respondent-university may be directed to accept the fees as well as examination forms of the said students who were admitted by the petitioner but till date no heed has been paid by the said respondent. So, in view of the said facts, cause of action has arisen partly to petitioners to file the present writ petition before this Court. As such the preliminary objection raised by Sri Waseequddin regarding the maintainability of the writ petition before this Court for want of territorial jurisdiction has no force and accordingly rejected.
So far as the relief claimed by the petitioner that the students who were admitted by the petitioner against the sanctioned vacant seats may be allowed to appear provisionally in the examination in question is concerned cannot be granted in view of the settled provisions of law as laid down by the Apex Court in catena of decisions that by way of interim order, the students should not be permitted to appear provisionally in the examination as the same will be detrimental to the education and its efficient management. As a matter of course, such interim orders should not be passed, as they are aberrations and it is subversive of academic discipline.
Further in respect to provisional admission, the Apex Court in the case of Regional Officer, CBSE v. Sheena Pethambaran, [(2003) 7 SCC 719], has observed:
"6. This Court has on several occasions earner 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 had been declared, the matter deserves to be considered sympathetically. It results in very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions".
In the case of C.B.S.E. & Anr. v. P. Sunil Kumar & Ors. [(1998) 5 SCC 377], the institutions whose students were permitted to undertake the examination of the Central Board of Secondary Education were not entitled to appear in the examination. They were, however, allowed to appear in the examination under the interim orders granted by the High Court. In that context the Supreme Court observed as under:
"4......But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students."
In the case of Guru Nanak Dev University v. Parminder Kr. Bansal [(1993) 4 SCC, 401] the Supreme Court observed that such interim order is subversive of academic discipline. The relevant observations are as under:
"7.......We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates ... The courts should not embarrass academic authorities by themselves taking over their functions."
In State of Maharashtra v. Vikas Sahebrao Roundale (1992) 4 SCC 435], it was held that the students of unrecognized and unauthorized educational institutions could not have been permitted by the High Court on a writ Petition being filed to appear in the examination and to be accommodated in recognized institutions and it has been held as under:
"12. Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education."
In the case of Sunil Oraon (Minor) through Guardian and others Vs. CBSE and others (2006) 13 SCC 673, the Apex Court had again held that by way of interim protection, the student should not be allowed to appear provisionally in examination and held as under:-
"Time and again, therefore, this Court had deprecated the practice of educational institution admitting the students without requisite recognition or affiliation. In all such cases the usual plea is the career of innocent children who have fallen in the hands of the mischievous designated school authorities. As the factual scenario delineated against goes to show the school has shown scant regards to the requirements for affiliation and as rightly highlighted by learned counsel for the CBSE, the infraction was of very serious nature. Though the ultimate victims are innocent students that cannot be a ground for granting relief to the appellant. Even after filing the undertakings the School non-challantly continued the violations."
In view of the abovesaid facts and taking into consideration the fact that the students who were admitted by the petitioners' institutions against the vacant seats without any approval and authority rather the said exercise on the part of the petitioner is contrary to law as laid down by this Court in the case of Tuples Educational Society and another Vs. State of U.P. and others 2008 (26) LCD 687. The argument as advanced by the learned counsel for the petitioner that in view of the Government Order dated 12.08.2008 and the interim order dated 06.05.2010 passed by this Court in the case of Ateesh Kumar Yadav (Supra), the students of the petitioners institution may be permitted to appear in the examination in quesiton cannot be granted and further the same is also wholly misconceived as the said Government Order dated 12.08.2008 was issued for the academic session 2008-09 and for the present academic session i.e. 2009-10.
Further from the case law cited by the learned counsel for the petitioner i.e. Association of Management of Unaided Private Medical & Dental College Vs. Pravesh Niyantran Samiti and others (2005) 13 SCC 704 does not deal with the issue in question, as such the petitioner cannot derive any benefit from the same for the purpose of interim relief.
For the foregoing reasons, the interim relief as claimed by the petitioners in the present case to direct the O.P. Nos. 2 and 3 to allow the said students to provisionally appear in the examination scheduled to take place from 10.11.2010 cannot be granted. Accordingly, the application for interim relief is rejected.
However, the O.P. No. 1 is directed to decide the representation submitted by the petitioners in respect to their grievances expeditiously if possible within a period of four weeks from today.
Learned counsel for the respondents pray for and are granted four weeks time to file counter affidavit. Two weeks thereafter is granted to the petitioner for rejoinder affidavit.
List thereafter.
Order Date :- 9.11.2010 Ravi/