Court No. - 36
Case :- WRIT - C No. - 42765 of 2018 Petitioner :- Shanshah Respondent :- Bundelkhand University Jhansi And 5 Others Counsel for Petitioner :- Ashutosh Pandey Counsel for Respondent :- Brajesh Datta Pandey
Hon'ble Ajay Bhanot,J.
Heard Sri R. K. Pandey, learned counsel holding brief of Sri Ashutosh Pandey, learned counsel for the petitioner and Sri Sanjay Kumar Mishra, learned counsel holding brief of Sri Brajesh Datta Pandey, learned counsel for the respondent University.
The admission schedule and date line for the B.Ed. course run by various universities in the State of U.P. was provided by the Hon'ble Supreme Court in the case of College of Professional Education and others Vs. State of U.P. and others, reported at 2013 (2) SCC 721. The judgement of the Hon'ble Supreme Court in the case of College of Professional Education (supra) pertains to the B.Ed. course of the academic session 2011-12.
Learned counsel for the petitioner, however, fairly admits to the submission of the learned counsel for the respondent-University that the time schedule provided by the Hon'ble Supreme Court in the case of College of Professional Education (supra) is applicable to all subsequent academic years.
The Hon'ble Supreme Court in College of Professional Education (supra) provided for a meticulous time schedule along with other aspects of admission for the academic session. The relevant parts of the judgement of the Hon'ble Supreme Court in the case of College of Professional Education (supra) are extracted hereunder:
"3. In regard to admissions for 2011-12, the following time schedule was agreed, as recorded in the interim order dated 11.3.2011:
1. Publication of Advertisement 10.03.2011
2. Sale of Application Forms From 21.03.2011 to and their submission 10.04.2011
3. Date of Entrance Examination 02.06.2011
4. Declaration of Result 05.07.2011
5. First Counseling From 14.07.2011 to 27.07.2011
6. Admissions (after first counseling) Upto 31.07.2011
7. Second Counseling if required From 03.08.2011 to 07.08.2011
8. Admissions (after second counseling) Upto 10.08.2011
9. Commencement of Academic session From 01.08.2011
4. In regard to admissions for academic sessions 2012- 2013 and subsequent academic years, the institutions and the state government have arrived at a broad consensus regarding the procedure, the terms of which have been set out in the affidavit filed by Dr. R.K. Gupta, Associate Professor, Department of Higher Education, Government P.G. College, Noida on behalf of the state of U.P. The terms agreed are as under:
(i) To ensure that all seats in the colleges are filled through counseling pursuant to Entrance Examination, the Colleges are required to update their websites daily and display the number of students admitted as well as the number of seats vacant. For this purpose, each college shall have an official websites giving the details of total sanctioned seats, bank account etc. During the course of counseling, they will update their official website on day to day basis regarding vacant seats after admissions. The colleges shall also communicate the said particulars on daily basis to the Registrar of concerned University (Examination conducting body) through e- mail/telephone/Fax.
(ii) Every college will display its Bank Account Number and its name on its website and also provide to the concerned University (the examination conducting body). Any student, who is allotted to a particular college through counseling after the B.Ed. Joint Entrance Examination, will deposit his fees directly with the CBS Branch of the said Bank Account of the college to which he is allotted, within three days from the day of counseling. Subsequently, the said student will make available the copy of the proof of fee deposited to the concerned college and the concerned University. The concerned college will display the same on its website along with the details of the students. If any student faces any difficulty in depositing of the fee in the CBS account of the college to which he is allotted, he can immediately contact the University, the college and if required then concerned District Magistrate.
(iii) The schedule for admission for the academic session 2012-13 and subsequent years, shall be as under:
1. Publication of Advertisement 01.02.2011
2. Sale of Application Forms and 10-2-2012 to 10-3-2012 their submission
3. Date of Entrance Examination 20.04.2012 to 25.04.2012
4. Declaration of Result 25.05.2012 to 30.05.2012
5. Commencement and completion of counselling 01.06.2012 to 25.06.2012
6. Last Date of Admissions after counseling 28.06.2012
7. Commencement of Academic session 01.07.2012 [Note : for subsequent years, the same dates and months will apply]
(iv) From 2012-13, there will be only one counseling, which will continue for a period of 25 days. During the counseling, if it is found that a candidate/s allotted to any college do not turn up to take admission, the college shall inform the Counseling Authority and upon receipt of such information, another set of candidates will be sent to such colleges after counseling. The said counseling will be continuous to expedite the procedure of admission till closure of admission, without any second or third round of counseling.
(v) As per the schedule agreed for the year 2011-12, as per order dated 11.3.2011 of the Supreme Court, the admission process will be completed by 31.07.2011 after the first counseling. Subsequently, any vacant seats ascertained, will be filled up through second phase of counseling conducted from 03.08.2011 to 07.08.2011. Thus, the whole process of admission to all the seats of B.Ed. course shall be completed by 14.08.2011.
(vi) After that date (14.08.2011) if any seat remains vacant in a private college then to fill up the same the following course may be followed to ensure filling up all the vacant seats through counseling only:-
(a) A waiting list in the form of pool of about 5000 candidates will be prepared. The waiting list may be enlarged as per the requirement to fill up the vacant seats. The candidates registered with the pool will have to give an undertaking to the effect that they can be sent to any college having vacant seat for admission and they will have no objection. The candidates registered with the pool/waiting list will be arranged as per merit and will be allotted the colleges having vacant seats in their subjects according to their merit. This option will be exercised only after the end of counseling and be adopted only on the request of the colleges for filling up their remained vacant seats within three days from the last date of admission.
In such circumstances, the concerned university will provide the students from waiting list accordingly to fill up the seats but the entire process will be completed within 10 days, i.e. by 24.08.2011 for the session 2011-12 and 8th of July for the next consecutive years.
The wait listed pool candidates, shall along with the undertaking, deposit the fees with the University concerned and in case the candidates fails/refuses to join the allotted college as per his undertaking then the fee deposited with university will be remitted to the account of the college immediately, to which the students has been allotted by the university provided that the seats remained vacant during that academic session.
(b) After the counseling is over, the concerned University will continue to allot the candidates from the above mentioned waiting list against the vacant seats till all the seats in the colleges are filled up. It is further submitted that the organizing university will provide students only to the existing B.Ed. College and all those B.Ed. Colleges which will get affiliation up to dated 07.07.2011 will not be considered for counseling to the year 2011-12 and for the next consecutive years and onward the colleges which will be get affiliated on or before 10th of May of that year, would be considered for counseling.
(c) The organizing University will start online help service through which the complaints of the candidates will be redressed. All the colleges concerned will also provide their helpline separately and after receipt of the complaints the organizing university will forward the same to the concerned college for redressal, failing which the organizing university will seek the explanation from the college concerned and if any default or omission is found on the part of the college, then the same would be forwarded to the government for necessary actions against such college.
(d) The state shall take all endevour to ensure admissions only through counseling after holding State Level Entrance Examination against all the seats sanctioned in self-financing institutions running B.Ed. Course.
(e) That in case any unforeseen difficulty arises regarding filling up vacant seats in the concerned colleges despite strictly following the procedure agreed, even after 24.08.2011, the colleges will be entitled to approach, for filling up their vacant seats, to Principal Secretary/Secretary of the Department of Higher Education, Government of UP who will arrange to provide selected candidates from the wait-list pool within 3 days from receipt of application to fill up those vacant seats.
(f) The same procedure will mutatis mutandis apply for the academic years 2012-13 and thereafter.
(vii) The state government will adopt similar procedure in regard to filling of any vacant seats for the admission for the academic year 2012-13 and subsequent years.
The State Government will endeavour to formulate the above in the form of appropriate admission procedure rules. Until the State Government makes such rules, the above procedure will be applied."
An interlocutory application no. 109 and 110 of 2013 was filed in Civil Appeal No. 5914 of 2010 (College of Professional Education case) upon which following orders were passed by the Apex Court on 25th of November, 2013:-
"We have not been granting any further relief to any party in case of admission for the academic session 2013-2014 after 16th September, 2013. These interlocutory applications are also dismissed.
It will however, be open for the applicant to move the concerned Court including this Court for further relief for the academic session 2014- 2015"
The issue thereafter was once again examined by the Apex Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of Uttar Pradesh, reported at (2013) 2 SCC 617. The schedule in College of Professional Education (Supra) was taken note of and following directions were issued:-
91.1. The schedule stated in the case of College of Professional Education (supra) and in this judgment in relation to admissions, recognition, affiliation and commencement of courses shall be strictly adhered to by all concerned including the NCTE, the State Government and the University/examining body.
91.2. In the event of disobedience of schedule and/or any attempt to overreach or circumvent the judgment of this Court and the directions contained herein, the concerned person shall render himself or herself liable for proceedings under the Contempt of Courts Act, 1971 and even for departmental disciplinary action in accordance with law.
91.3. We hereby direct the NCTE/ State Government/ Examining or affiliating body to consider the applications and pass appropriate orders granting or refusing to grant recognition/affiliation to the petitioner institutions within three months from today.
91.4. If the institutions are aggrieved from the order passed by the authorities in terms of clause ''C' (supra), they will be at liberty to challenge the same in accordance with law.
91.5. NCTE shall circulate the copy of this judgment to all Regional Committees, concerned State Governments and all affiliating bodies and also put the some on its website for information of all stakeholders and public at large.
91.6. The interim order dated 27th September, 2012 is made absolute.
92. All the writ petitions and appeals are accordingly disposed of, however, leaving the parties to bear their own costs."
It is not in issue that last date for grant of admission in the Academic Session 2013-14 has not been extended by the Apex Court after 16th of September, 2013. Applications filed to extend the period has been rejected by the Apex Court.
A writ petition No. 36072 of 2014 i.e. Jyoti Mishra and 6 Others Vs. State of U.P. and Others was filed for permitting candidates admitted after 16.09.2013 to appear in the B.ed. Examination. The writ petition was dismissed on the ground that any extension of time, beyond what is specified by the Apex Court would amount to an act of disobedience of the orders of the Apex Court rendering the concerned person liable to contempt proceedings as also disciplinary proceedings in accordance with law. The same view was reiterated in The C/M Mariahu Snatkottar Mahavidyalaya and another Vs. The State of U.P. and others Writ Petition (C) No.59712 of 2013 while dismissing the writ petition on 02.08.2014. The order passed in The C/M Mariahu Snatkottar Mahavidyalaya (supra), as also in Jyoti Mishra (supra), is not shown to have been interfered with by the Supreme Court. In view of the observations made above, the fixation of last date under the orders of the Supreme Court was duly acknowledged and made the basis for adjudication by this Court.
It is admitted to the parties that the above extracted schedule of admissions declared by the Hon'ble Supreme Court is being adhered to in the State of U.P. and was followed in the academic year 2013-14, to which the instant controversy relates.
However, it appears that the Principal Secretary, Higher Education by order dated 26.09.2013 extended the last date for obtaining admission to the B.Ed. for the academic session 2013-14. The consequential order was passed on 08.10.2013. The decision to extend the last date of admission to the B.Ed. course for the academic session 2013-14 was taken to fill up the vacant seats in the B.Ed. course for the academic session 2013-
14. Admittedly the orders dated 26.09.2013 and 08.10.2013 were unilateral decisions of the State Government without taking permission from the Hon'ble Supreme Court. The orders dated 26.09.2013 and 08.10.2013 were contrary to the judgement of the Supreme Court in College of Professional Education (supra). The Government Order dated 26.09.2013 fixed 15.10.2013 as the last date for obtaining admission to the B.Ed. for the academic session 2013-14.
The petitioner took admission in the B.Ed. course for the academic session 2013-14 on 07.10.2013 on the foot of the Government Order dated 26.09.2013.
However, despite having taken admission the petitioner and many similarly situated individuals were not permitted to appear in the B.Ed. examination for the academic session 2013-
14. The aforesaid students so aggrieved approached this Court by instituting writ petitions. Petitions were also filed before the Lucknow Bench of this Court. Interim orders were passed in such petitions permitting the aforesaid students to provisionally appear in the B.Ed. examination for the academic session 2013-
14. The petitioner was also permitted to appear in the B.Ed. examination for the academic session 2013-14 pursuant to such orders passed by this Court.
The petitioner has instituted the writ petition seeking the relief to declare the result of the B.Ed. Examination-2014.
Certain facts essential to judge the claim and legal rights of the petitioner are beyond the pale of dispute. The petitioner was admitted to the B.Ed. course in the academic session 2013-14 much after the cut-of-date for admission prescribed by the Hon'ble Supreme Court in the College of Professional Education (supra). The State Government had taken a decision to extend the cut-of-date provided by the Hon'ble Supreme Court in the case of College of Professional Education (supra), unilaterally and without taking permission from the Hon'ble Supreme Court. The order of the State Government was in the teeth of the law laid down by the Hon'ble Supreme Court in the case of College of Professional Education (supra). That being admitted position of facts, the petitioner had no right to be admitted to the B.Ed. Course in the session 2013-14 nor does any right accrue to the petitioner merely by virtue of his appearing in the examination on the strength of interim orders passed by this Court.
Learned counsel for the respondent-University submits that this controversy has been decided by this Court in a number of cases. He relies upon the judgements of this Court rendered in the cases of Garima Mishra Vs. State of U.P. and others instituted in Writ-C No.47320 of 2014, Smt. Renu Shah and others Vs. State of U.P. and others instituted in Writ-C No.57977 of 2014, Jainul Abdeen Vs. State of U.P. and others in Writ-C No.28073 of 2018, Jyoti Mishra and others Vs. State of U.P. and others in Writ-C No.36072 of 2014 and Neetu Patel Vs. State of U.P and others in Writ-C No.20615 of 2018.
Learned counsel for the petitioner does not dispute the applicability of the said judgements to the facts of this case.
In the cases of Garima Mishra (supra) and Smt. Renu Shah (supra) this Court considered the same controversy regarding grant of admission to B.Ed. course after the cut-of-date prescribed by the Hon'ble Supreme Court in the case of College of Professional Education (supra). This Court also considered the validity and the consequences of the action of the State authorities in acting contrary to the guidelines laid down by the Hon'ble Supreme Court in the case of Garima Mishra (supra) and Smt. Renu Shah (supra).
In the case of Garima Mishra (supra) this Court held thus:
"To grant the relief of declaration of result would necessarily involve and or have the effect of modifying the scheme/time schedule laid down by the Supreme Court. Once the result is declared, nothing would remain from treating the petitioner at par with a student who had been admitted in accordance with the scheme/ time schedule provided by the Supreme Court.
In this regard, I find the judgment of the Supreme Court is the complete law governing the procedure for granting admissions to B.Ed. course for the session 2013-14. There is no provision in the law thus laid down by the Supreme Court, to leave open to the High Court, to in any circumstance to either modify the scheme or to extend the time-lines fixed by it. More so, when that scheme and those time-lines had been fixed by the Supreme Court on basis of proposal on affidavit made by the State Government itself, it is difficult to understand the source of Government Order dated 26.9.2013 itself, which is at the root of the present situation.
It may also be noted that the fact of the Government Order dated 26.09.2013 has also been considered in the case of Marihu Snatkottar Mahavidyalaya and another (supra), wherein this Court has held as below:-
"So far as the ground taken in the impugned order is concerned, the guidelines issued by the Apex Court in the case of College of Professional Education and Others (supra) are binding and have to be followed as would be clear from a subsequent decision in the case of Maa Vaishno Devi Mahila Mahilavidhyalaya v. State of U.P. and others : 2013(2) SCC 617 where, in paragraph 91.1 and 91.2, it has been observed as follows:-
"91.1.The schedule stated in the case of College of Professional Education (supra) and in this judgment in relation to admissions, recognition, affiliation and commencement of courses shall be strictly adhered to by all concerned including the NCTE, the State Government and the University/examining body.
91.2. In the event of disobedience of schedule and/or any attempt to overreach or circumvent the judgment of this Court and the directions contained herein, the concerned person shall render himself or herself liable for proceedings under the Contempt of Courts Act, 1971 and even for departmental disciplinary action in accordance with law."
A perusal of the observations made by the Apex Court in Maa Vaishno Devi Mahila Mahilavidhyalaya (supra) would reveal that the time schedule fixed by the Apex Court in the case of College of Professional Education and Others (supra) had to be strictly adhered to not only by the University / Colleges affiliated thereto /N.C.T.E, but also by the State Government.
Heavy reliance has been placed by the learned counsel for the petitioner on clause 4 (vi) (e) of the apex court's judgment in College of Professional Education and Others (supra). This Court is of the view that the power, which the State Government has, to extend the deadline prescribed by the Apex Court, by invoking paragraph 4 (vi) (e) of the Apex Court's judgment, is to be exercised sparingly on existence of unforeseen difficulty and that too with utmost expedition when such difficulty is brought to the notice of the authority concerned. A perusal of the record reveals that the Government Order dated 26th September, 2013 enabling admissions up to 15th October, 2013 was issued on the basis of a report dated 10th September, 2013 submitted by the State Nodal Officer, Joint Entrance Examination B.Ed., 2013. It is thus clear that the difficulty was brought to the notice of the State Government on 10th September, 2013. The direction contained in paragraph 4 (vi) (e) of the Apex Court's judgment in the case of College of Professional Education and Others (supra) provides that the State Government on being apprised of such unforeseen difficulty would take action within three days to fill up those vacant seats. In view of the above, if the State Government was apprised of the unforeseen difficulty by the State Nodal Officer, Joint Entrance Examination B.Ed.-2013 through its reference letter dated 10th September, 2013, the State Government was under an obligation to take immediate action so that the time schedule fixed by the Apex Court was not violated. However, the State Government instead of giving immediate attention to the report of the State Nodal Officer reacted on the report with a delay of over 10 days and further allowed admissions up to 15th October, 2013 which, apparently, was beyond the time schedule provided by the Apex Court.
In a similar matter i.e. Writ C No. 36072 of 2014, which was decided by this court, vide order dated 28.07.2014, this Court was apprised of an order dated 25th November, 2013 passed by the Apex Court in IA NOS.
109 and 110 of 2013 in Civil Appeal No. 5914 of 2011 (College of Professional Education and others v. State of U.P. and others, which reads as follows:-
"We have not been granting any further relief to any party in case of admissions for the academic session 2013-14 after 16th September, 2013. These interlocutory applications are also dismissed.
It will however, be open for the applicant to move the concerned Court including this Court for further relief for the academic session 2014-15."
Relying on the above order as also the time schedule provided in the case of College of Professional Education and Others (supra), which was affirmed in the case of Maa Vaishno Devi Mahila Mahavidyalaya (supra), this Court dismissed Writ C No. 36072 of 2014. As the guidelines given by the Apex Court with regards to the admission to the B.Ed course are binding and even the State Government could not have bypassed the same, the admissions made by the petitioners' institution beyond the period fixed by the apex court cannot be recognized for the academic session 2013-14. Therefore, no relief can be granted to the petitioners' institution. The writ petition is dismissed."
(emphasis supplied) In view of the above, I am of the opinion that specific directions issued by the Supreme Court fixing the cut of dates for making admission, it was neither open to the State Government to prescribe different dates without leave of the Supreme Court nor any benefit could flow from the fact that such admissions were allowed to take place and examinations held without such prior permission or modification by the Supreme Court, solely on the strength of the Government Order. Admission having been obtained after the cut of date 07.07.2013, as declared by the Supreme Court, it is not open to this Court to grant the relief of declaration of petitioner's result."
In the case of and Smt. Renu Shah (supra) this Court decided the controversy in the following terms:
"This Court finds substance in the contention advanced on behalf of the university that the facts of the present case are squarely covered by the judgment dated 28.7.2014. This Court is in respectful agreement with the view expressed in the aforesaid judgment inasmuch as once the cut-off date had been fixed by the Apex Court, any admission granted thereafter would not be treated to be a valid admission in the eyes of law, and therefore, denial of right to appear in the examination cannot be treated to be arbitrary. This Court also finds no force in the contention advanced on behalf of the petitioner that the Apex Court had permitted the parties to approach the concerned court for further relief inasmuch as the observation made in this regard is in the context of fresh admissions to be considered for the session 2014.15 and such liberty cannot be construed in the context of admission for the session 2012-13. The placing of reliance upon the interim order by the Lucknow Bench of this Court is also of no help to petitioners inasmuch as the law is settled that what is binding upon the Court is the final judgment and not the interim order.
The Court can express its sympathy but no effective relief can be granted. The writ petition fails and is dismissed, accordingly."
In this manner, this Court settled the rights of students similarly situated to the petitioners who had taken admission after the cut-of-date prescribed by the Supreme Court in the B.Ed. course for the academic session 2013-14. The claim of such students was rejected by this Court. The petitioner does not deserve any better treatment.
The writ petition is, accordingly, dismissed.
Order Date :- 20.12.2018 Dhananjai