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Reserved Judgment
Special Appeal No.1212 of 2009
Committee of Management, Dau Dayal Mahila P.G. College,
Firozabad Vs. State of U.P. & others
Connected with :
Special Appeal No.1293 of 2009
Usha Devi and others Vs. State of U.P. & others
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Hon’ble R.K. Agrawal, J
Hon’ble A.P. Sahi, J
These two appeals arise out of a common judgment in two writ
petitions, one filed by the Management of the institution and the other
by the students in relation to admission in M.Ed. courses conducted by
the institution. The institution, having failed to receive any direction
from the University for making admissions, had filed a writ petition in
the year 2006 itself being Writ Petition No.49255 of 2006. Interim
orders were granted by this Court under which admissions were made
by the institution and the students subsequently filed Writ Petition No.
9693 of 2009 for a mandamus to enable the University to allow them to
appear in the exams. Both these writ petitions have been dismissed by
the learned single Judge on 16.7.2009, hence this Appeal.
The dispute relates to admission in M.Ed. courses of Dau Dayal
Mahila P.G. College, Firozabad, affiliated to the Agra University. The
institution appears to have been granted permission/affiliation by the
Chancellor His Excellency the Governor vide order dated 10.6.2004 for
admission against 25 seats. As a consequence of this permission, the
College contends that it started running the courses and that admissions
were to be made in accordance with the U.P. State Universities
(Regulation of Admission to Course of Instruction for Degree in
Education in affiliated, associated and constituent Colleges) Order 1987.
Chapter-III of the said provisions is quoted below:-
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“CHAPTER III
ADMISSION TO M.ED. CLASSES
15.Introductory.– The provision of this Chapter shall apply for
admission to a course of instruction in M.Ed. classes only in
any college.
16.No person shall be admitted in any college unless he has
passed an examination for the degree of B.Ed. conducted by
a University established by law or an examination for the
diploma of recognised B.T. or L.T.
17.Only those applications for admission to M.Ed. will be
considered where the candidates, according to the statutes
of the concerned University, fulfil all other qualifications
except M.Ed., for appointment as a Lecturer in B.A.
(Education) or in the B.Ed., department in the degree
colleges of the State.
18.Admission according to merit.– Candidates shall be
admitted strictly in order of merit on the basis of percentage
of marks obtained in the B.Ed. or its equivalent other
recognised examinations. Full marks obtained in the theory
and fifty per cent marks obtained in the practical
examination shall be considered in calculating the
percentage.
Illustration.–If a candidate has secured 240 marks out of
500 in the theory and 140 marks out of 200 in the practical
examination then for the sake of calculation, the full marks
obtained by him will be 240+(140/2 or 70) = 310 and his
percentage will be 44.28 (310 x 100)/700.
19.Application of Orders of Chapter II.– The provisions of
paras 4, 5, 6, 11, 12, 13 and 14 shall mutatis mutandis
apply to admission under this Chapter also.”
The University was requested to process admissions according to
the said permission granted in the Session 2004-05 but having failed to
receive any response, the Management filed Writ Petition No. 55847 of
2005. A counter-affidavit was filed in the said writ petition and it was
indicated therein that only 2 candidates had been recommended by the
University and according to the conditions imposed, 50% of the seats
are to be filled up from the candidates recommended by the University.
It was pointed out by the Management that the University having failed
to fill up 50% seats, the entire session 2004-05 would go waste and, as
such advertisement had been issued by the College for filling up the
seats. The Court found that the scheme was a self financing scheme and
accordingly directed the University to scrutinize the admissions and take
suitable steps for admission.
Thereafter, for the session 2005-06 entrance examinations were
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held but the results were not declared. Consequently, the University did
not continue with the admission process of the Session 2006-07. It is,
therefore, clear that the University, which had to hold the entrance
examination for admission to the M.Ed. courses, had not been able to
hold the examinations. The reason given by the University for not
processing the admissions for 2006-07 is delayed session. In the
aforesaid background, the College had come up before this Court for an
appropriate direction.
Upon entertaining the writ petition, this Court passed an order on
3.10.2006 to the following effect:-
“University is directed to provide 50% of the M.Ed. students
for the academic session 2006-07 in the institution of the
petitioner or show cause by the next date.”
The matter was taken up on 12.10.2006 where an order was
passed to the following effect:-
“Learned counsel for the respondents states that he
has received instructions but as the Registrar of the
University has been placed under suspension of 4.10.2006,
the counter-affidavit could not be filed.
As agreed, list/put up on 18.10.2006 for compliance of
the order dated 3.10.2006.
Sd/- Hon. Vineet Saran, J
Dt. 12.10.2006″
Subsequently, when the University failed to provide the students,
this Court passed the following interim order on 5.12.2006:-
“On 3.10.2006 this Court had directed the
respondent- University to provide 50% of the M.Ed.
students for the academic Session 2006-07 in the institution
of the petitioner or who cause by the next date and
12.10.2006 was the date fixed. On the next date, on a
statement made by the learned counsel for the respondent-
University mentioning that he had received instructions but
as the Registrar of the University had been placed under
suspension, the counter-affidavit could not be filed, as such,
the matter was adjourned. Thereafter, on several dates the
case was passed over on the illness slip sent by the learned
4counsel for the respondent-University. The case has thus
come up today but till date no counter-affidavit has been
filed.
Learned counsel for the petitioner has submitted that
till date the respondent-University has not provided 50% of
the M.Ed. students for the said Session.
In the aforesaid circumstances, it is directed that in
case if within ten days from today the students are not
provided to the petitioner-institution, the institution shall be
at liberty to admit students and fill up the remaining seats,
in accordance with law, after ten days.
Let this matter be listed on 20.12.2006.
Let a certified copy of this order be issued to the
learned counsel for the parties, within 24 hours, on payment
of usual charges.
Sd/- Hon. Vineet Saran, J
Dt. 5.12.2006″
The University contends that a short-counter-affidavit had already
been filed on 22.12.2006 and, as such, the sentence reciting that no
counter-affidavit has been filed on behalf of the University was incorrect
and, accordingly, a recall application with a detailed counter-affidavit
was filed on 2.1.2007. The said recall application was disposed of on
2.11.2007 by the following order:-
“A short counter-affidavit without giving any reply to the
averments made in this writ petition had been filed by the
respondent-University on 22.11.2006. Another detailed
counter-affidavit has been filed on 2.1.2007 along with an
application with the prayer for recalling the interim order
dated 5.12.2006. In my view, the interim order dated
5.12.2006 does not require to be recalled. The said
application be treated as an application for vacating the stay
order.
List before the appropriate Court immediately after
two weeks by which time the petitioner may file rejoinder-
affidavit.
Sd/- Hon. Vineet Saran, J
Dt. 2.11.2007″
Thus, it is evident that the aforesaid interim orders were passed from
time to time and the Management contends that admissions were taken
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thereafter.
The students filed the subsequent Writ Petition No. 9693 of 2009
alleging that they have been admitted in accordance with the interim
directions of this Court. This writ petition was filed in February 2009 in
which the University filed a counter-affidavit to which a reply has been
filed by the University. The students contend that they have been
admitted and, therefore, for no fault of theirs, the University should be
commanded to allow them to appear in the exams.
On behalf of the University, Sri Sanjay Kumar Singh contends that
the Affidavits filed in support of the recall application and the
subsequent Affidavits filed in both the writ petitions, it is absolutely
clear that the institution has proceeded to admit students on its own
without there being any order of the University and without compliance
of any of the procedure including the guidelines framed by the National
Council for Teachers Education and regulations framed for admission to
M.Ed. classes in accordance with Statute 11.01. Sri Singh submits that
Statute 11.01, which is reproduced below, entails that the qualifications
has to be the same as that of a Lecturer in Education except for the
Masters degree. The Statute 11.01 is quoted below:-
“11.01. (1) In the case of Faculties of Arts, Commerce
Science and Home Science the minimum qualifications for
the post of a lecturer in the University shall be Master’s
degree or an equivalent Degree of a Foreign University in
the relevant subject with at least 55 per cent marks or its
equivalent grade and consistently good academic record.
(2) In the case of Faculty of Education the minimum
qualifications for the post of a lecturer in the University shall
be Master’s degree or an equivalent degree of a Foreign
University in Educations (that is an M.Ed. degree) with at
least 55 per cent marks or its equivalent grade and
consistently good academic record.
(3) ………………………………………..
(4) ………………………………………..
(5) (a) ……………………………………
(b) A candidate for Lecturer ship in the Faculty of Education
having obtained either 55 per cent marks in B.Ed. degree
examination and second class in any other Bachelor’s
degree examination or 50 per cent marks in each of the two
examination separately is said to have consistently good
6academic record;”
Sri Singh contends that even these qualifications are not fulfilled
by the students including the eligibility of 55% marks for admission in
the courses. Sri Singh further submits that the grant of interim order by
this Court was also against the law inasmuch as the University was not
obliged to grant admission as a matter of compulsion. He further
submits that the entrance examinations could not be conducted for
processing the admissions as the session was late and, therefore, in the
Meeting held by the University – Authority on 3.6.2008, it was decided
to declare the Session of 2006-07 to be a Zero session. This fact has
been brought on record through the counter-affidavit filed in the
subsequent writ petition and it is stated that in view of the aforesaid
position of the University, there is no occasion to permit the students to
appear in the exams.
This matter was heard on several occasions and the learned
counsel for the appellant was directed to demonstrate before the Court
as to even if the admissions had been made under the interim orders
quoted herein above, what was the procedure followed by the College to
finalize admissions. Sri Ranjit Saxena, learned counsel for the appellant,
has produced the record and has also filed Affidavits. The norms and
standard for M.Ed. Degree Programme as prescribed by the National
Council for Teachers Education has been appended along with the
supplementary-affidavit dated 23.2.2010. Another supplementary-
affidavit has been filed on 25.2.2010 annexing therewith the list of the
students, who had applied and the list of the admitted students. Sri
Saxena contends that the aforesaid basic norms had been complied with
and, therefore, the admissions were validly conducted by the College in
accordance with the norms prescribed.
Having heard learned counsel for the parties and in view of the
aforesaid facts that emerge from the pleadings, it is evident that the
College was not granted permission by the University to take admission
for the session 2006-07. The University has not conducted any entrance
test and has come up with a plea that the session has been declared to
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be a Zero session. It is worth noting that the resolution dated 3.6.2008
passed by the University in the Meeting of the Examination Committee
fails to take notice of the interim orders passed by this Court in relation
to the admissions of the present institution before proceeding to declare
the entire session to be a Zero session. The University, while proceeding
to do this, was obliged to take notice of orders passed in the year 2006-
07. This having not been done, the University, in our opinion, was not
justified in taking a decision to declare the session to be a Zero session
on account of the delay of session of the University itself. To this extent,
the College cannot be said to be at any fault. This aspect of the matter,
in our opinion, had not been noticed by the learned single Judge while
proceeding to dismiss the writ petition. The interim orders granted by
this Court, therefore, permitted the institution to take admissions.
The next question which falls for consideration is that the
procedure of admission of 25 students who are the petitioners in the
second writ petition, the documents of which had been filed, indicate
that 2 lists were prepared, one indicating the number of applicants who
were 63 and the other a list of 25 students who were ultimately
admitted and who are the petitioners in the second writ petition. The
Affidavits filed do indicate some process having been adopted but there
is nothing on record to demonstrate as to how these admissions were
processed after calculating the minimum eligibility marks of the
students. The marks of every student calculated according to the norms
prescribed have not been indicated in the 2 lists. Learned counsel
contends that some students, who were higher in merit, did not turn up
and, as such, they were issued intimations as to whether they would
like to still seek admission or not. It is contended that in view of the fact
that 25 students, who were admitted, turned up according to the notice
issued and no other candidate staked a claim for admission, the
admissions were finalized.
Learned single Judge, therefore, in our opinion, rightly arrived at
the conclusion that in the absence of any such material it would be
difficult to uphold the admissions. The conduct of the institution,
therefore, in proceeding to take admissions was not according to
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conditions of recognition and the University cannot be said to have
extended any such permission to the institution to go ahead with the
admission. The University must have delayed the session yet it appears
that the University had taken measures to rectify the same by declaring
the session to be a Zero session. The University might have been
compelled to do so but in our opinion, the Management of the institution
had no occasion to proceed to take admissions without following the
procedure and without bringing anything on record to indicate that the
admissions were held in conformity with the procedure prescribed in
law. This has resulted in an awesome injury to the students, who bona
fidely approached the institution for admission. The Management
having not followed a genuine procedure as prescribed under law, has
acted in violation of norms and in our opinion it is the Management
which has created this confusion which has been worst confounded by
the absence of any demonstrable procedure having been adopted by the
College in accordance with law. The learned single Judge, therefore, in
our opinion, was right in arriving at a conclusion in respect of the
conduct of the institution.
There is yet another aspect of the matter. The appellants cannot
plead estoppal as the University had nowhere on its own volition
extended some promise on the basis whereof any legitimate claim can
be set up on behalf of the students. The institution also could not have
under the existing provisions compelled the University to allow it to take
admissions without the involvement and participation of the University.
Nonetheless, the University also was obliged to take into account the
various factors in relation to the conduct of such courses before
proceeding to declare the Session as zero session. The University also,
therefore, did not take action promptly and in the year 2008 passed a
resolution for declaring the session to be a zero session. Under Section
28 of the State Universities Act, there is a provision for statutory
Admissions Committee which functions subject to the superintendence
of the academic council. It is the Admissions Committee which lays
down the policy for admission to various courses of studies in the
University. The criteria and method of admission, therefore, has to be
provided by the University. Under Section 29 of the Act, there is a
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Statutory Examinations Committee which is entrusted with all functions
of examination except those of autonomous Colleges where under
Section 42 of the Act, the University has the authority to grant
permission in the manner prescribed to run a particular course of study
and hold an examination. The determination of such matters is left to
the University. It is, therefore, clear that there is a direct control over all
such matters of the University and hence the University is under a legal
obligation to discharge its function, more so when the College had been
making repeated requests and the litigation was going on from the
session 2005-06 itself. Thus, the Institution, the University and the
directions issued by this Court have all led to a situation where the
students are standing on the brink of their career. It is pointed out by
Sri Saxena that all the 25 students have completed their courses but
they have not been permitted to take up the exams. He further submits
that all the students being female candidates are in search of
employment and looking to their capabilities, they would be contributing
towards the educational system of the Society without causing any
harm to the system.
In view of the aforesaid facts, let the University permit the
petitioners of Writ Petition No.9693 of 2009 to appear in the exams for
the session 2006-07 for which the University shall take steps at the
earliest. We are passing this order also because of the fact that no other
student or candidate has put any challenge to the procedure adopted by
the College in selecting the candidates for admission.
We may, however, make it clear that this order has been passed
in the peculiar facts and circumstances of the present case as noted
herein above and this order shall not be a precedent for any other
course or any other session. The College is hereafter warned not to seek
any admissions except with the approval of the University in accordance
with rules and after complying with the procedure prescribed in law. Any
such further attempt by the College shall be viewed seriously and the
University shall recommend appropriate action against the Management
of the institution in the event any such default is located being
deliberately attempted by the institution at the cost of the students.
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The Special Appeal stands disposed of and the order passed by
the learned single Judge to that extent would stand modified
accordingly.
Dt. August 6, 2010
Irshad