ORDER
1. Since all these writ petitions involve common questions of law and facts, they are clubbed together and disposed of by a common order.
2. The petitioners in Writ Petitions Nos. 13470 to 13483 of 1989 are students who have completed the B.Ed. degree course. They have prayed for a mandamus directing the Bangalore University to publish and announce the results of the petitioners relating to the B.Ed, degree course of the Bangalore University for the academic year 1988-89 and also for a direction to the Bangalore University to issue certificates in respect of those petitioners who have successfully completed the B.Ed. degree course. The remaining writ petitions are preferred by various colleges seeking similar reliefs against the concerned University.
3. Statement of objections has been filed by respondents 3 to 5 who are the State of Karnataka, the Bangalore University and the Controller of Examinations, Bangalore University, respectively in Writ Petitions Nos. 13470 to 13483 of 1989. Similarly, in the remaining writ petitions also the statement of objections has been filed. Writ Petition No. 7774 of 1989 is the writ petition filed by Srishaila College of Education, Harihar, against the Kuvempu University, Shimoga. Respondent 1 which is the State of Karnataka has filed the statement of objections.
4. The following are the material facts:–
Petitioners in W. P. Nos. 13470 to 13483 of 1989 were admitted by the Sarvajna College of Education. Nagarabhavi Road, Vijaya-nagar, Bangalore, in excess of the fixed intake of 100 students. The admission of these students was disapproved by the Bangalore University as is evident from Annexure Rl dated 30-9-1988. In the said communication served on the Principal of College, the college was informed that the admissions beyond 102 shall become invalid under S.53(10)(b) and (c) of the Karnataka State Universities Act, 1976 (‘the Act’ for short) and the college was asked to discharge the candidates mentioned therein from the college forthwith after due notice to them under intimation to the Registrar of Bangalore University. The said communication was sent to the college within 45 days from the date of receipt of the list of admitted students from the college for approval. The petitioners have not challenged the order of discharge in the writ petitions. The college also filed W.P. No. 4602/89 seeking approval of the admission of the petitioners and others. In the said writ petition, the college obtained an interim order enabling the petitioners herein and others to take the B.Ed. degree examination for the year 1988-89. The college certified that the admissions made by it for the B.Ed. degree course for the year 1988-89 was within the intake prescribed by the University. For the year 1987-88, the college had admitted 150 students to the B.Ed. course. It is not disputed that only for the year 1987-88, the enhancement of the intake strength from 100 to 150 had been duly authorised by the competent authority. It is stated by the petitioners in so far as the Bangalore University is concerned, that the petitioners came to know for the first time that the college was authorised to admit only 100 students for the year 1988-89 when the Bangalore University declined to issue hall tickets to the petitioners and other students in all consisting of 50. It is stated that the petitioners joined the course in July, 1988 and since all the necessary supporting documents for admission had been forwarded to the Bangalore University by the College, the Controller of Examinations is deemed to be aware of the fact that the college had admitted in excess of the authorised intake. But it is not disputed that it is only on account of a direction issued by this Court during the pendency of the writ petitions that hall tickets were issued to the petitioners by the Bangalore University. Contrary to the expectations of the petitioners, the results of the B.Ed. degree examination announced by the Bangalore University did not disclose the results of the petitioners and others numbering 50. The results were announced on 31-5-1989. It is stated that earlier on 18-7-1988 a letter was addressed by respondent 2 college to the erstwhile Minister for Higher Education Dr. Jeevaraj Alva who, according to the petitioners, had called upon the Education Secretary to the Government of Karnataka on 12-7-1988 to issue orders enhancing the intake of students by 50 for the year 1988-89. It is alleged that whereas the Government of Karnataka had issued favourable orders in respect of various other colleges enhancing the intake of students exceeding the allotted quota, in so far as respondent 2 college is concerned, no such order was passed. Thus the petitioners became aggrieved. The learned counsel appearing for the petitioners submitted that principles of equitable estoppel warrant that the petitioners should be prevented from suffering manifest injustice. The grievance of the petitioners is that for the previous year 1988-89, 150 students were admitted to the course and that they had no knowledge that for the year 1989-90, the intake would be restricted to 100 students and that the petitioners were not kept informed even to this day of the authorised intake and, therefore, they were justified in expecting that they would be entitled to take the examination after successful completion of the course and also that in the ordinary course their results would be announced by the Bangalore University. The second contention is that there is discrimination which has adversely affected the petitioners since enhancement of intake was extended to several colleges, but not to respondent 2 college. The third contention is that apart from non-communication of the prescribed intake for the year 1989-90 by the University, there is also unreasonable delay in the decision taken by the University detrimental to the petitioners. The last contention is that on considerations of equity and fairness, the results of the petitioners deserve to be announced and certificates issued as otherwise the prospects of the petitioners would be in jeopardy for no fault of their own and that the non-publication of the results is violative of Arts. 14 and 19(1)(g) of the Constitution. The learned counsel appearing for the petitioners in all the other cases have adopted a common stand.
5. The learned counsel appearing for the petitioner Institution in W.P. No, 7774 of
1989 tried to distinguish the case of the petitioner from the rest of the writ petitions. This institution is affiliated to Kuvempu University and it was previously affiliated to the Mysore University. It is stipulated that up to the year 1990 the examinations would be conducted by the Mysore University and not by Kuvempu University. The authorised intake is 100 students and since according to the petitioner running the college with 100 students apart from 10 seats for the Primary School in service teachers was not economical and viable, the petitioner requested the State Government for increase of the intake from 100 to 150 students by addressing a letter dated 10-8-1988. The letter was addressed to the Minister for Higher Education, Government of Karnataka. It is stated that in respect of applications filed by some other colleges, the State Government sanctioned additional seats varying from 20 to 50 by issuing Government Orders in that behalf and for the year 1987-88 also enhancement of seats was extended to some of the colleges in the State. It is stated that the Minister for Higher Education, when approached by the petitioner, promised that the college would be given additional seats and that the college could admit the students in anticipation of the sanction of the additional seats. It is asserted that based on the oral assurance given by the Minister, the petitioner admitted 133 students before the last date for admission fixed by the University expired. Thereafter, the college submitted the list of students admitted to the Mysore University within the prescribed time limit. It is stated that though the petitioner admitted 29 students for the academic year 1988-89 as additional intake, in anticipation of approval and had sought for rectification of the same, request had been made by the petitioner for enhancement of the intake by 40 seats. According to the petitioner, all the students have completed their course of study in B.Ed. and that the application of the petitioner for sanction of additional intake is still pending before the State Government. It is also stated that for the previous year the petitioner was permitted to increase the intake of students by 30 seats and since the petitioner had applied for enhancement of the intake in August, 1988 itself, the petitioner believed that it would be permitted to increase the intake by 40 students in due course and such a permission would be granted as was done in the case of some other colleges. It is further slated that not only in respect of the petitioner college, but also in respect of all such colleges who had sought for additional seats, the erstwhile Minister for Higher Education Dr. Jeevaraj Alva had assured that the increase sought would be sanctioned. In fact, according to the petitioner, direct formal orders were issued by the Government and in respect of some of the colleges the Minister issued the formal orders for the increase of intake. But in any case the petitioner did not get any response either from the Minister or from the State Government in writing. Since the State Government has not sanctioned the increased intake, the Mysore University had not taken any action in regard to the admission of 29 students in excess of the prescribed intake.
6. The learned counsel for the petitioner, while adopting the contentions urged by the learned counsel appearing for the petitioners in the other writ petitions, has highlighted the assurance given by the erstwhile Minister for Higher Education. It is vehemently contended that the State Government has failed to perform its duty by not issuing a formal order despite the direction and order made by the erstwhile Minister when the petitioner had admitted 29 students in excess on the expectation that an order would be issued by the Stale Government in accordance with the direction of the Minister. In para 19 of the writ petition, it is stated that the students of the petitioner college have already taken the practical examination and that the theory examination was scheduled to commence on 28-4-1989 and in spite of these facts the University has neither approved the admission of the students, nor has it declined and, therefore, the petitioner college is kept in a sorry predicament.
7. On behalf of the Bangalore University, the learned Standing Counsel submitted that the admission of the students by the colleges concerned to the B.Ed. degree course for the academic year 1988-89 is undisputedly beyond the authorised intake of 100 and admissions made in excess of the fixed intake were disapproved by the University under An-nexure Rl which was communicated to the concerned colleges within 45 days from the date of receipt of the list of admitted students from the colleges for approval. It is submitted that the petitioners are aware of the order of discharge issued under Annexure Rl; but have not challenged the same in the writ petitions and, therefore, the writ petitions are not maintainable in law. It is submitted that the petitioners are not entitled to the announcement of the results since their admission by the college is in violation of S. 53(10)(b) of the Act and the eligibility of the petitioners was not at all examined by the University since their admissions were disapproved by the University as they were beyond the authorised intake and also since the students cannot be called as validly admitted students. It was contended that the colleges had falsely certified in the statement of admissions submitted by the colleges to the University that the admissions made by the colleges for the B.Ed. degree course for the year 1988-89 was within the authorised intake as could be seen from Annexure R2. The learned counsel maintained that the respondent colleges had played fraud on the University by false certification that the students admitled by the college are within the stipulated intake. It was submitted that the students being the beneficiaries of fraud, are not entitled to invoke the equitable and discretionary remedy under Art. 226 of the Constitution. It was submitted that the students had full knowledge that their admissions were beyond the permitted intake and they relied on the previous approval of excess admission for the previous year and took the risk of joining the college at their own peril.
8. The learned counsel described as absolutely false the contention of the students that they have successfully completed the B.Ed. degree course and that they are entitled to appear for the B.Ed. degree examination since their admissions had been disapproved and the disapproval was communicated to the colleges at the beginning of the academic year within a reasonable time and further that the students are not students of B.Ed. degree course in the eye of law. It was strongly urged that the petitioners are deemed to have knowledge of the Regulations of the Bangalore University and that they cannot take advantage of the unauthorised and illegal admissions made by the colleges in violation of S.53(10)(b) of the Act. It was further contended that there is no provition for increasing the intake once it is fixed under S. 53(2) of the Act.
9. On behalf of the Bangalore University, it was also contended that Annexure G which is a note from the Minister to the Education Secretary is not an executable order and it is only an internal correspondence between the Minister and the Secretary concerned.
10. Lastly it was contended that the writ petitions cannot be maintained on the basis of any concession given to certain colleges by the State Government. It was submitted that the same arguments hold good in respect of the writ petitions filed by the colleges.
11. In W.P. No. 7774 of 1989, the learned High Court Government Pleader appearing on behalf of respondent 1 while substantially adopting the arguments advanced by the learned standing counsel appearing for the Bangalore University, contended that the Government has not communicated any order to the petitioner either with an assurance to approve the excess intake or approving the excess intake itself and, therefore, the petitioner cannot admit in excess to the quota fixed without due approval of the Government and that the admission made by the petitioner is unauthorised. It was contended that the policy of the State Government was not to open new B.Ed. colleges till the end of 7th Five Year Plan i.e. 31-3-1990 and that the said policy was upheld by this Court in W.P. No. 10005/87 and other connected cases, decided on 20-7-1988, and also in W.A. No. 78/89 and other connected appeals deeided on 6-9-1989. It was emphasised that the Government of Karnataka hsa not approved any excess admission over and above the prescribed quota fixed subsequent to 13-7-1988 and, therefore, there was no discrimination. As regards the oral order Supposed to have been given to the petitioner by the erstwhile Minister, it was submitted that such an oral direction could be termed only as an internal order to the department. According to the learned Government Pleader, the petitioner is precluded from admitting in excess to the quota fixed in the absence of a Government Order and its communication to the petitioner. It was pointed out that the petitioner’s request as could be seen from para 17 of the writ petition for sanction of excess intake emanated in the month of August, 1988, whereas the Government had stopped sanction of additional intake much earlier to that date and, therefore, the question of discrimination does not arise. It was categorically stated that the Government had not sanctioned any excess intake subsequent to 13-7-1988. Therefore, it was submitted that the respondent University was justified in not allowing the students of the petitioner institution admitted in excess of the authorised intake, to take the examination and withholding the results of such students who had already taken the examination. It was lastly contended that if any additional seats are granted to the petitioner, it is as good as granting permission to a new college in effect and that is contrary to the policy of the Government.
12. The point for determination is whether the petitioners are entitled in the facts and circumstances of the case for a direction to the respondent Universities to publish and announce the results of the students in respect of the B.Ed. degree course examination for the academic year 1988-89.
13. Some of the material facts which are beyond dispute would narrow down the discussion for the determination of the point in issue. The educational institutions which are the petitioners in some of the writ petitions were granted affiliation and recognition subject to the conditions embodied therein. The affiliation granted to the said institutions reveals that the intake stipulated and authorised by the Bangalore University was 100. The institutions cannot deny knowledge of the stipulated intake nor have they done so. Nevertheless they have violated the condition and admitted students beyond the prescribed intake. The institutions are manned by knowledgeable and responsible Principals apart from other persons who are in-charge of the management. It is to be reasonably expected that they would respect and abide by the condition imposed. If more persons than authorised are admitted to the colleges, the presumption is that there is a wilful defiance of the prohibition imposed on them impliedly to the effeet that they should not admit students in excess of the intake. A circular has been brought to my notice by the learned Standing Counsel appearing for the Bangalore University clearly instructing the colleges to notify the authorised intake and the number of admissions made which would caution the students aspiring for admissions as to whether seats are available for the purpose of admission. If there is non-compliance with the instruction issued by the Bangalore University by the concerned colleges, it is these institutions which have to be blamed and held responsible by the affected students and not the University. The University has discharged its duly of care by communicating the standing instruction to the colleges in this regard and it is not possible to accept the contention that apart from instructing the colleges the University should have notified the students also. After coming to know that the colleges has violated the condition imposed on them, the University in the course of legitimate exercise of its power disapproved admissions made in excess of the authorised intake which is evident from Anncxure R1. It is also significant to note that the disapproval was intimated to the colleges within a period of 45 days from the date of receipt of the statement of admissions submitted by the colleges for the approval of the University. The time taken by the University cannot be described as unreasonable by any means. The argument that no such communication was directly issued to the students affected by the University does not hold water since neither the Act nor the Rules contemplate such a notice to the students. The scheme of the Act envisage the control and supervision of the colleges by the University which, in turn, would have a regulatory control in regard to the matter of admission of students to the colleges affiliated to the Bangalore University. In none of the writ petitions the order of disapproval passed by the University is challenged except for a belated attempt seeking amendment of the writ petitions by the learned counsel Sri B. Vecrabhadrappa appearing for some of the petitioners seeking to challenge the order of disapproval issued by the University at a stage when arguments were in progress and after Sri M. N. Seshadri, the learned counsel appearing for the Bangalore University had taken the stand that the writ petitions deserve to be dismissed on the threshold since the order of disapproval has not been challenged in any of the writ petitions.
14. The contention of the learned Standing Counsel for the University that the petitioners are not entitled for announcement of the results of the students who have taken the examination on the ground that admissions were made in violation of S. 53(10)(b) of the Act commends acceptance. Non-approval of the admissions would render the status of the students who are in excess of the approved intake not only questionable but also unfit for the privileges and rights which are available to the students who come within the permitted intake. Such students do not have any legal right to enforce in these writ petitions. The colleges have falsely certified as could be seen from the statement of admissions submitted by the Principals of the Colleges that the admissions made for the B.Ed. degree course for the year 1988-89 were within the authorised intake whereas, in fact, admissions have been made by them in excess of the authorised intake. In this regard it was submitted by the learned counsel for the University that the colleges have played fraud on the University by falsely certifying and, therefore, since the. students and the colleges are beneficiaries of the fraud, they are not entitled to invoke the equitable and discretionary remedy under Art. 226 of the Constitution of India. This argument deserves to be accepted becasue the colleges have played fraud not only on the University but also on the students unless the students knowingly joined the college despite |the ban imposed on excess intake. On behalf of the University, it was submitted that the students as well as the institutions had full knowledge that admissions made were beyond permitted intake but they took the risk of admission for reasons which do not stand legal scrutiny. One of the reasons given is that in regard to some of the colleges during the previous year approval had been granted by the competent authority for excess admission made and, therefore, it was anticipated that similar approval would be granted for the year 1988-89 also. I do not think for a moment that such an anticipation is either reasonable or legitimate. Grant of approval of excess admission made is left to the discretion of the competent authority and cannot be construed as a matter of right. Risking the career based on speculation cannot confer any justiciable right either on the colleges or on the students. Merely because the students were permitted to continue their course and take the examination by virtue of the interim orders granted by this Court, the petitioners have no legal right and are not qualified for the B.Ed. degree examination. If the admission is ab initio void, interim orders of the Court during the pendency of the writ petitions and subject to the ultimate result of the writ petitions would not render the admissions valid. Neither the colleges, nor the students, can escape the legal consequences on the ground that they had no knowledge of the regulations of the Bangalore University and that the students secured admission innocently and unknowingly.
15. Strong reliance has been placed by the petitioners particularly in W. P. Nos. 13470 to 13483 of 1989 and in W.P. No, 11221 of 1989 and connected writ petitions on a note made by the erstwhile Minister for Higher Education Dr. Jeevaraj Alva dated 12-7-1988. The said note reads as follows :–
“Please find herein enclosed a letter received from the Secretary of Sree Sarvajna Education Society, Bangalore, requesting to enhance the intake of seats in respect of Sree Sarvajna College of Education, Bangalore.
The Education Secretary may please issue orders enhancing the intake of students by fifty for the year 1988-89.”
It is the contention of the petitioners that the aforesaid note of the Minister instructing the Education Secretary to issue orders enhancing the intake of students by 50 for the year 1988-89 in respect of Sree Sarvajna College of Education, Bangalore, entitles the students to approval of excess admissions but also to all the privileges and rights of students admitted to the colleges in accordance with law. It was also submitted on behalf of the petitioners that when once approval of the excess admission is granted to one institution, similar approval should be made available to all similarly situate institutions and students and that there can be no discrimination in violation of Art. 14 of the Constitution.
16. The point to be considered is whether the note put up by the Minister on 12-7-1988 would amount to a Government Order. According to the note, a letter was received from the Secretary of Sree Sarvajna Education Society, Bangalore, requesting for enhancement of the intake of seats in respect of Sree Sarvajna College of Education, Bangalore, and, therefore, the Education Secretary was instructed by the Minister to issue orders enhancing the intake of students by 50 for the year 1988-89. This note is signed by the Minister and it is addressed to the Education Secretary for issue of orders. In other words, it is an intra-departmental note from the Minister to the Education Secretary. This note is not marked for being endorsed either to Sree Sarvajna Education Society or to Sree Sarvajna College of Education, Bangalore. However, the petitioners have managed to take a copy of this note and have produced it before the Court. When I questioned the learned counsel appearing for the petitioners as to how a copy of the note came into their custody and as to how they had access to the note, there was no satisfactory explanation except stating that the petitioners were able to secure a copy of it. After this note was given to the Education Secretary by the Minister, the Education Secretary did not issue any order. On the other hand, the note was shelved. The order never saw the light of the day. Within a short period thereafter the Minister went out of office and that marked the end of the hopes of the colleges and the students. It is from this note which never fructified that the petitioners are seeking to derive strength for their contention that the note put up by the Minister is as good as an order issued by the Goverment and, therefore, the admissions made in excess of the authorised intake arc deemed to have been approved by the competent authority.
17. I cannot subscribe to the views of the learned counsel appearing for the petitioners that a mere note, not acted upon and not communicated in accordanec with law by the Statc Government, would amount to a Government Order granting approval of the excess intake. In fact, the conduct of the petitioners in having managed to secure a copy of the note reflects on the petitioner and the petitioners are not either morally or legally justified in basing their claim on the note of the Minister. I am of the opinion that the petitioners cannot sustain their claim of due approval of the excess admissions made by the colleges on the basis of a note issued by the Minister.
18. In regard to the college affiliated to the Mysore University, reliance is placed on an assurance held out by the same Minister. The case of the petitioner therein is much worse than the case of the petitioners who are relying on the note issued by the Minister.
19. In the course of the arguments contentions which do not form part of the pleadings were raised by the learned counsel appearing for the petitioners and I do not think such contentions could be raised beyond the pale of the averments made in the writ petitions. Permitting such contentions would be inappropriate and impermissible under the rule of pleadings.
20. The learned counsel appearing for the University further con tended that none of the petitioners has challenged the order of affiliation fixing the intake of students for admission and, therefore, through these writ petitions they cannot be permitted to go behind the conditions of affiliation and directly or indirectly attack the stipulation of the intake by the University apart from the fact that none of the petitioners has challenged the order of disapproval passed by the University. These contentions have to be allowed since they are based on facts which are not controverted.
21. In A1 Ameen Education Society v. State of Karnataka, ILR 1989 Kant 2715, a Division Bench of this Court held as follows : —
“In this context, provisions of S. 53(10)(b) may be noted. No affiliated college can admit students beyond the intake strength fixed by the University or the Government. This is necessary to preserve the excellence in the standard of education; equally, it is necessary to have a ceiling fixed, so that the total output in the Slate may not exceed the reasonable number of graduates having regard to the various relevant factors, such as job opportunities available to them.
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The principle of equality enshirned in Art. 14 of the Constitution is not a rigid and inflexible rule, having mathematical precision. The Court has to examine the reasonableness of the law or the action of the State having regard to all the relevant circumstances, while testing the validity of the law and the State action, under Art. 14 of the Constitution. Equality has to be amongst those who are really equal, with reference to the subject matter of the law or the State action. Further, every marginal deviation from the propounded policy would not give rise to a similar right in others to whom the benefit of such deviation is not given by the State. If the State permitted a few more students to be admitted by a few existing affiliated educational institutions, a new entrant to the field of education cannot make it a ground to seek affiliation to its educational institution. Similarly, the relevant facts pertaining to these three new colleges, permitted by the State as explained which make them different from the petitioners, for the purposes of affiliation. The Court has accepted the policy of the State against starting of the new affiliated/recognised Institutions, as a valid policy. In fact, the State has traced this policy to the Directive Principle enunciated by Art. 41 of the Constitution. In such a circumstance, if further new colleges are to be permitted by issuance of any writ by this Court, such ajudicial action will be destructive of the accepted principle behind the said valid policy. Court cannot contribute to the negation of the law or the policy, found by it and accepted by all, as advancing an ameliorative measure. As observed by the Supreme Court in Coromandet Fertilisers Ltd. v. Union of India, , a wrong decision by the Government authorities in favour of any particular party would not entitle any other party to claim the benefit on the basis of the wrong decision.
Hence this contention of the petitioners also has to fail, because, (i) the respondents have explained the reasons for enhancing the intake strength of a few colleges, as also for granting affiliation to the three colleges, and (ii) assuming that the affiliation granted to these three educational institutions and enhancement of intake in other colleges, contravened the policy decision of the Government, same would not create a right in favour of the petitioners, for a similar benefit.”
In Nerendra Bahadur Singh v. Gorakhpur University, , it was held (Para I):–
“….. The Gorakhpur University will also take care to ensure that no College affiliated to it shall give admissions to the students more than the prescribed number, because the students who are admitted in excess of the prescribed number suffer in the process and it is the duty of the University to take care to see that the students are not duped by the Colleges. The University must take steps against the erring College with a view to protect the students. It is surprising that immediately after the admissions are over the University has not taken care to cheek whether any of the Colleges had admitted students in excess of the prescribed numbers. To wake up at the last moment and then to rely on the legal provision would cause great hardship to the students. We hope and trust that the University will be more careful in future and try to ensure the welfare of the students, a task in which the University in the present case has failed.”
In State of Maharashtra v. Minoo Noazer Xavarana, , it was observed (at p. 1515 of AIR):–
“There is considerable force in the contention of Mr. Ramaswamy that the High Court was also not justified in directing creation of additional seats. The additional seats can be created only if the Indian Medical Council approves of such creation. In the instant case, the Indian Medical Council has vehemently opposed before us the creation of the additional seats. There is also the question of bearing the cost of creation of additional seats. The High Court, in our opinion, should not have directed the creation of additional seats. In exceptional circumstances and for ends of justice, the Court may direct the creation of one or two seats after giving the Indian Medical Council an opportunity of being heard, but surely the Court should not direct the creation of so many additional seats when neither the Government nor the Indian Medical Council consents to such creation. In the circumstances, it is difficult to sustain the impugned judgment of the High Court ”
In Achchey Lal v. Vice-Chancellor, Gorakhpur University, , the observations made by the Court with which I am in respectful agreement are as follows (at pp.4 to 6 of AIR):–
“The position in the present case is that the admissions which were initially made by Dr. P. K. Singh and Sri R. N. Singh were found upon an enquiry instituted by the University to have been made in breach/disregard of the criteria prescribed by the Admissions Committee of the University. The number of students admitted by the two principal also exceeded the prescribed limit of 180. That being so, the University was well within its right in virtue of sub-section (6) of Section 28 not to permit the petitioners to take up the examination, their admissions having been made in contravention of the criteria prescribed by the Admissions Committee of the University.
It is well settled that there can be no estoppel against law particularly where the legislative mandate is so clear and emphatic, namely, that no one admitted in contravention of the provisions of S. 28 shall be permitted to appear at the examination. We are fortified on this aspect by a Division Bench decision of this Court in the case of Sukhpal Singh Sharma v, Vice-Chancellor, Gorakhpur University, Gorakhpur reported in i982 UPLBEC 603 : (1982 All LJ 1021) in which a similar argument to the one canvassed before us based on the plea of estoppel was repelled and it was observed thus :–
‘It is settled and needs no elaboration that there can be no estoppel against law. If, therefore, the Sakaldiha College acted illegally and against the directions of the Gorakhpur University, which has been demonstrated above, the Gorakhpur University cannot be compelled by a direction to declare the result of the petitioners by treating their admission as lawful’.
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Further, in the present case, we find that at no point of time did the University which is the final authority in regard to the admissions and grant of permission to the students to appear at the examinations held by it, directly or by any act or omission or even by implication made any representation to the petitioners or led them to act to their detriment believing any such supposed representation so as to attract the principle of estoppel. Whatever was done in the present case was the result entirety of admissions granted by the two principal to the petitioners in disregard/breach of the criteria laid down by the University.
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We have given the above contention serious thought but we are unable to accept the contention. In the first place, while there may be power in the University to extend the number fixed by it, was cannot compel the University to increase the strength in every case where such a situation as the one in hand may arise, in the exercise of our powers under Art. 226 of the Constitution of India. Secondly, even in the case of Punjab Engineering College (supra) his Lordship the Chief Justice Chandrachud speaking for the Court sounded a note of caution and observed as follows (at p. 582) :
‘Laws are meant to be obeyed, not flouted. Some day, not distant, if admissions are quashed for the reason that they were made wrongly, it will have to be directed that the names of the students who are wrongly admitted should be removed from the rolls of the institution.’
In that case, however, their Lordships directed the increase in the limit fixed by the authorities on the ground that a note of warning may be sounded before adopting the course of quashing admissions illegally granted. Their Lordships had, however, not laid down any inflexible rule of universal application that in each case wherever the Court finds that the admissions were wrongly granted to the petitioners it must issue a writ of mandamus directing the authorities to increase the number of students. Still further it appears to us that the Punjab Engineering College which admitted the students was acting as an accredited agent of the State which is not the case here. It may also be noted that even in the case of Punjab Engineering College (supra) their Lordships had not directed the authorities to treat the petitioners as validly admitted. What their Lordships did was to issue a direction to the authorities to increase the number of seats and thereafter to throw them open to all the applicants for admission and select only the candidates in order of merit. For all these reasons, we cannot accept the prayer of the petitioners that directions be issued to the University straightway to treat the petitioners as validly admitted by a mere increase in the sanctioned strength.”
In Kedar Nath v. State of Punjab, , the Supreme Court laid down (at p. 226 of AIR) :–
“Considerable reliance has been placed by the appellant on the Chief Minister’s minute dated February 13, 1958, on the Minister’s recommendation dated February II. 1958. The Minister stated in his minute that he considered that the “adverse entries made against him (Bahl) should be expunged and he should be confirmed on the completion of his probation”. That led to the following order of the Chief Minister dated February 13, 1958:–
‘I agree with R. M. but he may kindly arrange to assign requisite staff to the Landscape Architect so that his services may be fully utilised by the Capital Project Administration in the preparation and execution of Landscape Plans.’
The appellant could justifiably argue that what the Chief Minister had agreed to was not only the expunction of the adverse entries, but also the Minister’s proposal for his confirmation, and that an order should have been issued accordingly. But the fact remains that order was not issued for his confirmation and, on the other hand, when the Minister concerned sent the case back to the Chief Minister on October 24/28. 1958, with the proposal to review the earlier decision for expunction of the adverse entries, and to abolish the post of Landscape Architect and to revert the appellant to his parent department, the Chief Minister passed the following order on October 29, 1958,–
‘It would not look proper to modify the orders already passed by the previous Minister about expunging of the remarks, and agreed to by me. I agree regarding reversion of Shri Bahal to his parent Dept. with immediate effect,’
It is therefore quite clear that after the matter had been examined further in consultation with the officers concerned, the Chief Minister modified his earlier order dated February 13, 1958 and passed an order for the appellant’s immediate reversion to his parent department. It was therefore permissible for the department to issue orders accordingly. At any rate, the earlier order of the Chief Minister dated October, 13, 1958 could not give rise to any right in favour of the appellant as it was not expressed in the name of the Governor as required by Art, 166 of the Constitution and was not communicated to the appellant. As has been held by this Court in Bachittar Singh v. State of Punjab, it was only a provisional order which was open to reconsideration by the Chief Minister and did not bind anyone. Nothing could therefore turn on the Chief Minister’s order dated February 13, 1958. when it was specifically rescinded by his subsequent order dated October 29. 1958. There could in fact be no question of appellant’s confirmation as Landscape Architect as it was a temporary post all through until it was allowed to lapse on November 4, 1958.”
In Rajalakshmiah v. Slate of Mysore, AIR 1967 SC 993, the Supreme Court held (at p. 996 of AIR):–
“There is some force in some of the contentions put forward on behalf of the State of Mysore. It is not necessary to test them as we find ourselves unabie to uphold the contention of the appellants. No doubt some concession had been shown to the first batch of 41 persons and the batches of persons who had come in after the batch of 63 persons also received some concession, but after all these were concessions and not something which they could claim as of right. The State of Mysore might have shown some indulgence to this hatch of 63 persons but we cannot issue a writ of mandamus commanding it to do so. There was no service rule which the State had transgressed nor has the State evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from Surveyors. The indulgence shown to the different batches of persons were really ad hoc and we are not in a position to say what, if any, ad hoc indulgence should be meted out to the appellants before us.”
The principle laid down in the above decisions support the contentions advanced on behalf of the Univeisity.
22. Even assuming that, in respect of some institutions, the Government had granted on earlier occasions approval of the excess admissions made, it does not follow that the petitioners have a right to the grant of approval because grant of approval of excess intake is at best a concession and not a recognition of any right. If there has been any executive excess in doling out favours in stray cases in approving excessive intake, it does not follow that the petitioners are entitled to similar patronage.
23. The Court’s task as I understand is to lend meaning and purpose to the accepted public values and adjudication is the process through which the meaning is manifested. The task remains incomplete if the Court fails to impart concrete meaning to constitutional values. As rightly said, “the social conscience just as the individual conscience may usefully serve as the launching pad of moral judgment”.
24. The remedy of the unwary students is against the colleges if they had made them gullible entrants because such errant institutions do not enjoy dispensation either from the law of tort or the law of contract in the absence of statutory protection. It is only where there are large unchartered areas unoccupied by legislation that the Court could exercise its discretion. The Court can hardly brook institutionalised administrative deviance. The epidemic which is rapidly spreading in the hallowed sphere of education and learning, must he halted in time. In the context of unedifying conduct, the principle cannot be better stated than what learned Hand articulated:–
“Law represents a compromise achieved by competing interests. If the compromise was made in the strictly political forum of the legislature, the statute embodying the agreement (consensus of the legislators) is merely to be interpreted, not altered one jot, by the Judge. To substitute the Judge’s supposed sagacity or sympathy is an arbitrary, despotic intrusion.”
25. The Act enjoins upon the University the duty to supervise and regulate the working of the affiliated colleges in the matter of providing standardised education, ensuring discipline in the academic sphere. The rule of law would suffer a grievous blow if not a fatal one, when educational discipline and good order are broken down by institutionalised vagaries and, therefore, the Court cannot afford to remain insensitive to the situation. I am reminded of what Cardozo had to say in another context :
“The vestiges of organs atrophied by misuse and abuse will become centres of infection if allowed to remain within the social body.”
26. The frequency of excess intakes, veritable malpractises and many similar evils having become endemic, the much aspired evolution of rising expectation is gradually giving way to the undesirable evolution of rising frustration in the academic sector. If the rot has to be stemmed in time, there can be no place for unregulated or misplaced benevolence. The University regulations are not meant to be pious platitudes. The University will be failing in its statutory duty if it allows these colleges to go with impunity in spite of Regulation 4 of the University Regulations which lays down that admissions shall be made in accordance with the University orders and within the intake fixed by the Vice-Chancellor or University from time to time.
27. The purging of gate-crashers from the colleges is a well-intentioned measure to insulate against subversion of the rule of law and particularly since the repeated warnings administered by the University against excess intakes have fallen on deaf ears.
28. Application of equity varies from the facts of one case to another and cannot be rigidly uniform. The petitioners cited several decisions of the Supreme Court and this Court highlighting the sympathy shown to the students despite legal infringements. But I am not impressed by the entreaties to exercise sympathetic consideration in these cases. The decision of the Supreme Court in Narendra Bahadur Singh v. Gorakhpur University, which is staring in the face being the only direct decision on the question of excess intake, is binding on me and I am not inclined to extend relief based on equity. The question whether the students have approached this Court with clean hands is not free from serious doubt. Despite the well-known regulations forbidding excess admissions, despite repeated warnings of the University and despite litigation each year with clock-like regularity, unauthorised admissions above the approved intake have become recurring annual Feature and I am, therefore, reluctant to be a party to the perpetuation of the evil.
29. It is high time to give a quietus to infiltration and subversion haying due regard to the larger interests of society, societal values and more than all the quality of education, especially at a time when the judiciary is supposed to be the anointed mediator of public values within the political system and when the public social services arc mandated by public values. During the present period of institutional decadence, the really critical role of the judiciary is to be alive to the tide of events, and the mores of the day and to display resurgence in insisting upon the principal issues and to compel society to focus on the value needs. The role of creating or implementing public values is no less important. That there is a complex interaction between courts and legislature in which the judges and legislators shape the means in order to achieve the articulated societal objectives, has to be recognised.
30. Whether the law is constitutional or statutory, the ultimate aim is the realisation ol socially derived objectives which the sociology of law admits, since the judges are seen as enforcing rules the origins of which are empirical subjects of sociological inquiry.
31. In pragmatic instrumentalism what is expected is that the judge who, makes the decision should understand and identify the social objectives which underly a particular rule of law and test the rule of law as a means to accomplish those objectives. Can there be a higher social objective than promotion and preservation of quality of education?
32. Considering the nature of fraud committed by the colleges by falsely certifying that there are no excess admissions while forwarding the statement of admissions to the University, as rightly pointed by the learned Counsel appearing for the University, the student; to whom ignorance is no ‘bliss, became beneficiaries of fraud allowing no scope for considerations of equity. On the other hand, flagrant violation of the intake condition which was imposed at the time of grant of affiliation and wilful mutilation of regulatory standards, may be — for collateral considerations do not commend sympathy or equity. As the dictum goes :–
“Law’s discretionary element shall not be at the expense of its rule element”
33. I have considered the other decisions cited at the Bar by the learned Counsel for the petitioners, but I find that they are not attracted to the facts of these cases and to the points arising out of the pleadings. Hence, I have not adverted to them individually. I hey are of no assistance to the petitioners.
34. In the result, these writ petitions fail and are, therefore, dismissed.
35. Petitions dismissed.