Sanjeev Kumar v. State of Bihar — 1999 DIGILAW 736 (PAT)

Order In CWJC No. 6973/1998: Raushan Rishu and another Vs. State of Bihar and others (A.I.R. 1999 Patna 99 : 1999(2) PLJR 24 ) this court had before it two students of the Maulana Azad College of Engineering and Technology, under the Magadh University. They were in the 1996-2000 session of the Bachelor of Science (Engineering) course and due to the failure of the University to hold their 2nd year examination in time, they were still in the second year at the time of the filing of the writ petition in August, 1998. They made a grievance before this court that due to the failure of the University authorities to complete their annual session and hold the examinations in time, they were already made to suffer the loss of about one year and at that rate their four years' course which was supposed to be over in the year 2000, would not be complete before 2003 and they would thus lose three years even before they took up their careers as Engineering graduates. 2. In that case after hearing counsel for the petitioners, the University and the Dean, Faculty of Engineering on a number of dates and after carefully considering the affidavits filed on their behalf, this court by order dated 3.2.1999 laid down a schedule for holding of examinations for the students of the 1996-2000 sessions so that their course should be completed by November 2000. Also, extending upon some directions earlier given by a division Bench, this court gave further directions for the restoration and preservation of purity of the examination process. In the order passed in that case the schedule of examinations was fixed for the batch of 1996-2000 but in so far as the other directions were concerned it was said that though mainly intended for the future sessions, those would also apply in so far relevant to the batch of 1996-2000. Nothing was said in respect of the students of the earlier sessions who were yet to complete their courses and in retrospect it appears that that omission was a mistake because the University seems to consider it a sufficient excuse to refuse to hold their examinations and it takes the stand that the directions given in CWJC No.6973/1998 are not binding on it in so far as the students of the sessions prior to 1996-2000 are concerned. If one thinks that the stand taken by the University is unbecoming of it, more is still to follow. 3. The refusal of the University to hold the examinations of the students of the earlier session, though long overdue has forced two students of the earlier sessions to move this court with the prayer that the directions given to the University in CWJC No. 6973/1998 be extended to cover their cases as well and the University be directed to hold all pending examinations of the engineering course without any further delay and to publish the results of those examinations within a reasonable time. The petition filed by them is registered in this court as MJC No. 2172/1999. Sanjeev Kumar, petitioner no. 1 in this M.J.C. is a student of 3rd year in the Maulana Azad College of Engineering and Technology and Vishal Sharma is a student of 4th year (final year) of the same college. They claim to have filed this petition in a representative capacity, i.e., on their own behalf as well as on behalf of the other students of their respective batches. 4. From this petition it appears that the delay in holding the examination by the University has reduced the students of those sessions to a sorry plight. It is stated by them that the Dean, Faculty of Engineering made a recommendation to the University for holding the overdue examination of the students of 3rd year and 4th year from 20.5.1999. He did not get any response from the University and then he made another recommendation for holding the examination from June 2, 1999 but the University authorities were maintaining complete silence and were simply sitting over the matter. In the mean while the students were losing precious time for no fault on their part. In para 10 of this petition a number of instances are cited where students of the final year got job offers from Governmental and non-Governmental organisations, including the Indian Air Force but they missed those opportunities as their course was not completed due to the University's failure to hold the examination in time. In those circumstances this petition was filed making the prayers as indicated above. 5. A rejoinder affidavit on behalf of respondents 2 to 4 (the Vice Chancellor, the Registrar and the Controller of Examination, Magadh University) was filed on 26.7.1999 resisting the reliefs prayed for by the two petitioners. In those circumstances this petition was filed making the prayers as indicated above. 5. A rejoinder affidavit on behalf of respondents 2 to 4 (the Vice Chancellor, the Registrar and the Controller of Examination, Magadh University) was filed on 26.7.1999 resisting the reliefs prayed for by the two petitioners. In this affidavit it is stated that as on date the Maulana Azad College of Engineering & Technology was not an affiliated unit of the Magadh University and hence, there is no question of holding examinations for its students in the 3rd and 4th years of the course or for that matter for any of its students. In course of submissions it was conceded that the examination schedule and the direction given in the case of Raushan Rishu (CWJC No. 6973/1993) in connection with the students of 1996-2000 batch and the future batches continue to be fully binding upon the University. It is, however, stated that in terms of the schedule fixed by the court, the University was not required to do any thing at the moment and it cannot, therefore, be held to be violating any directions of the court; so far the 3rd and 4th years students were concerned, they were not covered by that order and hence by refusing to hold their examination the University again could not be said to be violating any direction given by this court. 6. The highly curious and extra ordinary manner in which this plea comes to be raised on behalf of the University for the first time in this controversy will be evident from following. 7. In CWJC No. 6973/1998 (hereinafter referred to as the main case') the same respondents had filed a counter affidavit and a supplementary counter affidavit. In those affidavits, the respondents fully owned the responsibility to hold the examinations for the students of the college but simply tried to explain the reasons for the delay in holding the examinations. In para 6 of the counter affidavit, it was stated as follows : "6. That the Magadh University has got two engineering college viz. Maulana Azad College of Engineering and Technology, Patna and Patna Institute of Technology, Patna. Both the aforesaid engineering colleges are merely affiliated to the Magadh University." 8. In paras 11 and 12 of the counter affidavit, it was further stated as follows : "11. That the Magadh University has got two engineering college viz. Maulana Azad College of Engineering and Technology, Patna and Patna Institute of Technology, Patna. Both the aforesaid engineering colleges are merely affiliated to the Magadh University." 8. In paras 11 and 12 of the counter affidavit, it was further stated as follows : "11. That it is stated and submitted that if the Engineering College where the petitioners are studying cooperate and complete their syllabus at an early date and if the Dean of Faculty of Engineering sends the proposal for conducting the examination for 2nd year, the University may hold the examination at an early date as fixed by this Hon'ble court. "12. That having regard to the facts stated above, this Hon'ble court may pass appropriate orders in the matter of regularising the academic sessions of the two Engineering Colleges of the Magadh University." 9. In para 6 of the supplementary counter affidavit, it was stated as follows : "6. That it is stated and submitted that this Hon'ble court may pass appropriate order in the matter of regularising the academic session of the two Engineering Colleges of the Magadh University and in the matter of conducting the University examination which shall be adhered to." 10. It was in view of the aforesaid pleading on behalf of the University that this court did not treat the main case as an adversarial litigation between the parties and deemed it appropriate to lay down the examination schedule. It also proceeded to give directions to maintain purity of the examination process as it was specifically urged to do so not only in the pleadings made on behalf of the University but also in course of the oral submissions both by Mr. Shivendra Kishore, appearing for the University and by Mrs. Sheema Ali Khan, appearing for the Dean, Faculty of Engineering. This fact may be found recorded in para 13 of the order dated 3.2.1999 passed in the main case. 11. In the face of those unequivocal averments made earlier the University now seeks to turn around and say that it was not obliged to hold the examinations as the college was not granted affiliation. 12. Further, it is to be noted that for modification of the order dated 3.2.1999, a petition was filed on behalf of respondents 2 to 4 on 20.4.99. 12. Further, it is to be noted that for modification of the order dated 3.2.1999, a petition was filed on behalf of respondents 2 to 4 on 20.4.99. In this petition the University did not disown its responsibility to hold examinations for the students of the college nor did it seek any change in the examination schedule fixed by that order. The modification that was sought was in respect of the directions contained in para 13 (iv), (v), (vi), (viii) and (x) which pertained to the examination procedure. The question of affiliation was nowhere raised in this petition nor did the University take the stand that the entire order, dated 3.2.1999 passed in the main case was fit to be recalled as examination could not be held because the college was not granted affiliation. The prayer for modification of certain directions in that order, as indicated above, was made on the plea that those directions were at variance with the provisions of the Act inasmuch as by virtue of those directions, the Dean, Faculty of Engineering was clothed with powers and functions not assigned to him in the Act and other University authorities, e.g., Examination Board, the Vice Chancellor, etc. were deprived of their powers under the Act. 13. Arguments in support of this petition filed on behalf of the University were heard on a number of dates, in the course of which further affidavits were filed on behalf of the University; a supplementary affidavit on behalf of respondents 2 to 4 was filed on 4.5.99; a supplementary affidavit on behalf of respondent no. 2, (the Vice Chancellor) was filed on 22.6.99 and finally an affidavit on behalf of respondent no. 3 (the Registrar) was filed on 14.7.1999. In none of these affidavits it was stated that it was not possible to hold examinations for the students of the college because the college was not granted affiliation. It may be noted here that in course of arguments on the University's petition for modification, this court pointed out to the senior counsel appearing for it that in any event the provisions of the Bihar Universities Act (e.g. Section 30) were being violated for the past many years for holding the examinations by the University. It may be noted here that in course of arguments on the University's petition for modification, this court pointed out to the senior counsel appearing for it that in any event the provisions of the Bihar Universities Act (e.g. Section 30) were being violated for the past many years for holding the examinations by the University. On 7.7.1999 the court asked the University to file an affidavit stating whether regulations for holding examinations were framed in terms of Section 29 of the Act and whether examination were held on dates fixed by the State Government in terms of Section 30 of the Act. It was in response to that order that the affidavit was filed on behalf of respondent no. 3 on 14.7.1999 but when the matter came up for further heading on 19.7.1999 the Senior counsel appearing for respondents 2 to 4 stated that he was instructed not to press the petition for modification of the order passed in the main case. The petition filed on behalf of the University was accordingly dismissed. 14. Now it is very important to note that the University in its endeavour to seek modification of certain directions given by this court pertaining to the examination process filed four affidavits in none of which it took the stand that it was not possible to hold examinations for its students as the college was not granted affiliation. If that was the position, a two paragraph affidavit simply stating that as the college was not affiliated to the University, it was not possible to hold any examinations would have sufficed for making the prayer for the recall of the entire order passed in the main case. When this aspect of the matter was pointed out to the counsel appearing for the University in the petition in hand, learned counsel stated that the statements concerning affiliation were made in paras 3 and 4 of the last affidavit filed on 14.7.1999. The submission made by the counsel is quite incorrect. It is noted above that the affidavit dated 14.7.1999 was filed in pursuance to the court's order to state before it whether any regulations for holding examinations were framed under section 29 of the Act. In that connection it was stated in paras 3 and 4 of that affidavit that in pursuance of the decision of the State Government to hold 1st year B.Sc. In that connection it was stated in paras 3 and 4 of that affidavit that in pursuance of the decision of the State Government to hold 1st year B.Sc. (Engineering Examination) 1993 of the students of the college, communicated to the University by letter dated 26.9.1992, transitary regulations were framed by the Vice- Chancellor as the academic council was not in session at that time. Those transitary regulations received the assent of the Chancellor under Section 39(2) (ii) of the Act. Learned counsel for the University is, therefore quite incorrect in his statement that in the affidavit dated 14.7.1999 any objection was raised against holding of examinations on the grounds that the college was not affiliated. 15. Thus, the position that emerges is that in the counter affidavit filed in the main case the University expressly admitted that the two Engineering Colleges, including the Maulana Azad College of Engineering & Technology were affiliated to it. Later, when it came seeking modification of certain directions given in that order it did not raise any objection against holding examinations on the grounds of affiliation, though hearing on its petition for modification spread over a period of three months in the course of which four affidavits were filed on its behalf. 16. It is only now that in order to resist the prayers made on behalf of the students of 3rd and 4th years, the University takes the stand that it was not possible to hold examinations because the college was not affiliated to it. In the light of the foregoing the refusal of the University to hold examinations on the grounds of the college not being affiliated rather puts the University and its authorities in a poor light. The question whether a college is affiliated or not is no such a question which should require great efforts or research for its ascertainment. This position would be known to the University and its officials from the very beginning and such a plea could have been raised at the earliest stage in this controversy. Such a plea was not raised either at the first or the second stage for the simple reason that the University realised that in the attending facts and circumstances of this case the refusal to hold examination would be wholly unjustified, unreasonable and unfair. Such a plea was not raised either at the first or the second stage for the simple reason that the University realised that in the attending facts and circumstances of this case the refusal to hold examination would be wholly unjustified, unreasonable and unfair. This would be evident when we proceed here-in-after to examine the plea of the University on its merit. 17. In the affidavit filed on 26.7.1999 in opposition to the prayer made in the petition in hand, it is stated; with reference to the various provisions of the Act that the power to grant affiliation rests with the University and it has not granted affiliation to the Maulana Azad College of Engineering and Technology. It is further stated that on 16.5.1999 a general notice (Annexure-B) was published in the daily 'Hindustan' at the instance of the University informing all concerned that no examinations will be held in technical/professional courses, including engineering till the institutions running those courses fulfilled the statutory provisions, rules and regulations regarding affiliation and other related matter. In para 17 of the affidavit, it is stated that the notice was issued following the directions given by the Chancellor as contained in letter dated 20.4.1999 issued by the Secretary to the Governor. This is evidently incorrect because the notice clearly said that it was being issued prusuant to the decision of the Examination Board taken in its meeting held on 7.4.1999 whereas the letter containing the directions from the Chancellor is dated 20.4.1999. 18. The affidavit next refers to directions given by the Chancellor in the aforesaid letter (Annexure A). The letter was issued on the subject of alleged irregularities in affiliation and enhancement in in-take capacity of professional courses and it was addressed to all the Vice Chancellors of the Universities of Bihar. The letter stated about it coming to the notice of the Chancellor that a large number of professional courses were granted affiliation and enhancement in in-take capacity by different Universities in utter violation of the norms and procedures prescribed for granting affiliation. It was further stated in that letter: "The affiliation ultimately has to be granted by the State Government after the cases undergo rigorous screening on the anvil of individual merit with force of law by various bodies including the Syndicate and Senate at the University level." 19. It pointed out that the grant of affiliation in case of B.Sc. It was further stated in that letter: "The affiliation ultimately has to be granted by the State Government after the cases undergo rigorous screening on the anvil of individual merit with force of law by various bodies including the Syndicate and Senate at the University level." 19. It pointed out that the grant of affiliation in case of B.Sc. Engineering was governed by a Central Act, namely, A.I.C.T.E. Act, 1987 and a State Act being the Bihar State Engineering & Pharmacy Education Ins. (Regulation & Control) Act, 1987. The letter went on to direct the Vice Chancellors to reappraise all cases of affiliation and enhanced capacity in respect of the professional courses named in the letter and to report to the Chancellor's office, latest by May 3, 1999, cases of grant of affiliation to courses/institutions which did not meet the statutory requirements. It is further stated in the affidavit filed on behalf of the University that following the Chancellors' direction, notices were issued under the signature of the Inspector of Colleges (Arts & Commerce) on 15.6.1999 (the Chancellor had asked for the report latest by by 3.5.1999) to all such institutions including the college in question. Through that notice the college authorities were informed that on the basis of the report of the two members' enquiry committee, constituted by the Vice Chancellor, the College was called upon to explain its stand "with regard to affiliation, recommended to college/institution and to explain why appropriate step be not taken to de-affiliate your institution". Although it is stated in the affidavit that a notice was issued to the two Engineering Colleges, including the Maulana Azad College of Engineering & Technology, the copy of notice (Annexure C) enclosed in support of the averment is addressed to the Secretary, Budha Institute of Dental Science, Kankarbagh, Patna. It is finally stated that the University was ready to conduct examinations of those colleges which were• affiliated to it but as the two Engineering Colleges were either not affiliated or affiliated but not in accordance with the legal procedure, the University was unable to conduct examinations of students of those two colleges. 20. It is to be noted that the Chancellor's letter is in general terms and it does not refer to any particular college or colleges. 20. It is to be noted that the Chancellor's letter is in general terms and it does not refer to any particular college or colleges. On the basis of that letter, however, the University proposes to hold an enquiry on the question of affiliation of the two Engineering Colleges and till the completion of the enquiry every thing must be put on hold regardless of the other facts and circumstances and oblivious of the loss of time to the students. 21. Coming now to the other side of the story it is stated in the affidavit filed on behalf of the College that on the basis of the report submitted by a high level inspection team, the State Government took the decision to allow the holding of examination of 1st year B.Sc. (Engineering) examination, 1993 of the students of the college. The Government's decision was communicated to the Pro Vice Chancellor, Magadh University by letter no.2775, dated 26.9.1992. Following the Government decision the University on 13.1.1993 framed the transitary regulations for holding the examinations which received the assent of the Chancellor and necessary intimation in this regard was communicated to the Magadh University by letter dated 11.2.1993. The University then held the examination in which the students of the Maulana Azad College of Engineering appeared. It is further stated that the State Government by its letter dated 16.4.1994 (Annexure A/3) asked the University to grant affiliation to the College for the years 1993-94 and 1994-95. The University by its letter dated 26.4.1995 granted affiliation to the college for the aforesaid years in accordance with letter no.134131, dated 7.1.1994 from the Deputy Secretary, All India Council of Technical Education, New Delhi. As letter of affiliation for the subsequent years was not issued by the University the college sent to it reminders in that regard. The University asked for a letter from the State Government which was issued by the Secretary to the Government in the Science & Technology Department on 26.3.1998 (Annexure A/8) asking the University to complete the formalities for grant of affiliation to the college for the years 1995-96, 1996-97 and 1997-98. The University then asked the college to deposit the inspection fee and the college deposited a sum of Rs. 15,000/- as demanded by the University on 9.8.1998. The University then asked the college to deposit the inspection fee and the college deposited a sum of Rs. 15,000/- as demanded by the University on 9.8.1998. Thereafter, the University by its letter dated 28.1.1999 (Annexure A/9) constituted a committee of three persons by designation requesting them to inspect the college without specifying any date and without making any arrangement for their stay, travelling allowance etc. The committee consisted of persons who were neither obliged nor willing to comply with the request made by the University with the result that the proposed inspection of College never took place and in that regard the matter rests at that stage. It is stated that the delay in the affiliation of the college is not due to any fault or laches on its part but due to the cavalier and indifferent attitude of the University. 22. It is further stated in the counter affidavit that even without a formal letter of affiliation issued by the University it has taken more than a dozen and a half examinations for the students of this co 1lege, with their results duly published, the details of which are given in Annexure A/II. It is further stated that students were admitted to the college on the basis of the selection test held by the State Government for admission to technical and professional courses. 23. Lastly and most importantly it is stated that the college has received upto date approval from the All India Council for Technical Education for running the courses of students with the number of in-takes duly indicated in the approval letters. The A.I.C.T.E. by letter dated 7.1.1994 (Annexure A/1) accorded conditional approval to the college to conduct the following degree courses during academic years 1993-94 and 1994-95 : Course In-take Duration (1) Civil Engineering 30 4 years. (2) Mechanical Engineering 30 4 years. (3) Electronic Engineering 30 4 years. (4) Computer Science & Engineering 30 4 years. 24. By letter dated 27.4.1995 (Annexure A/4), the A.I.C.T.E. extended the approval for the year 1995-96 for the same courses with the same annual intake. By letter dated 20.4.1996/26.7.1996 (Annexure A/5) the A.I.C.T.E. further extended its approval until 1996-97 and also allowed slight increase in the in-take in Electronics Engineering (in-take 45) and Computer Science and Engineering (intake 45). 24. By letter dated 27.4.1995 (Annexure A/4), the A.I.C.T.E. extended the approval for the year 1995-96 for the same courses with the same annual intake. By letter dated 20.4.1996/26.7.1996 (Annexure A/5) the A.I.C.T.E. further extended its approval until 1996-97 and also allowed slight increase in the in-take in Electronics Engineering (in-take 45) and Computer Science and Engineering (intake 45). Again by letter dated 23.12.1997 (Annexure A/6) the approval was extended for 1997-98 and by letter dated 10.3.1999 (Annexure A/7) till 1999-2000. Again an increase in the in-take in Electronic Engineering and Computer Science Engineering (60 each) was approved by the A.I.C.T.E. by its letter dated 29.6.1999 (Annexure A/10). It is stated in the affidavit that approval was accorded by the A.I.C.T.E. on the basis of inspection made by its team which also include members of the State Government and the University and hence the college authorities believed that the University being satisfied with those inspection did not wish to make a separate inspection on its own. 25. Be that as it may, the question concerning the predominant role of the authority (A.I.C.T.E.) constituted under the Central Act now stands settled by the decision of the Supreme Court in State of T.N. & Another vs. Adhiyaman Educational & Research Institute & others (1995) 4 S.C.C. 104 . In that case it was held that in case an institution obtains approval from the A.I.C.T.E. on satisfying the standards and norms laid down by it, it is no longer open to the State or the University to de-recognise or dis-affiliate it for not satisfying the standard or requirements laid down by them. Following the decision in Adhiyaman a learned Judge of this Court in Chas Bokaro Vikas Samiti and another vs. The Union of India and others, 1998 (1) All PLR 290 : 1998(1) PLJR 138 laid down that the State Government and the University cannot lay down norms and guidelines which may be in conflict or inconsistent with or higher than those laid down by the Council constituted under the Central Act. The Judge went on to hold that non-issuance of no objection by the State Government cannot and shall not be a ground for the Council to wait for the grant of final approval to the Institute for imparting technical education. 26. The Judge went on to hold that non-issuance of no objection by the State Government cannot and shall not be a ground for the Council to wait for the grant of final approval to the Institute for imparting technical education. 26. The uptodate approval granted by the A.I.C.T.E. puts the college on very firm grounds and it lends great substance to the submissions made on behalf of the students and the college that the stand of the University in refusing to hold examinations though long overdue on the plea that its enquiry/inspection regarding grant of affiliation to the college was yet not complete was quite unreasonable, unjust and unfair. In the foregoing facts and circumstances I find little merit in the University's refusal to hold examinations on the ground that the college was not granted affiliation by it. I further find that the University's refusal to hold examination is causing serious prejudice to the petitioners and a case has been made out for an intervention of this court in this matter. 27. The University authorities are accordingly directed, both collectively and severally to arrange to hold the examinations of the 3rd and 4th year students of the B.Sc. Engineering course so as to commence the examinations by August 31, 1999. The examinations shall be held following the directions given in the order dated 3.2.1999 passed in the main case. Its results must be prepared and finalised by October, 15, 1999. In the meanwhile the University must complete its enquiry and take the decision concerning the grant of affiliation to the college for the relevant years. The publication of the results of the examinations will be made after the process of affiliation of the college is completed in accordance with law within the time specified above. 28. The M.J.C. petitions stand disposed of with the aforesaid observations and directions.