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2003 DIGILAW 234 (PAT)

Baibhaw Kumar Mishra v. State Of Bihar

2003-02-26

NARAYAN ROY

body2003
Judgment 1. Heard Mr. Y. V. Giri, learned senior counsel for the petitioners, Mr. Tuhin Shankar, learned counsel for the respondent Kameshwar Singh Darbhanga Sanskrit University and Mr. Arup Kumar Chongdar, J.C. to Additional Advocate General II for the State. 2. This writ application has been filed on behalf of the students of Dayanand Ayurvedic Medical College, Siwan (hereinafter referred to as "the College") for issuance of a direction upon the respondent- Kameshwar Singh Darbhanga Sanskrit University (hereinafter referred to as the "University") to hold examination of Bachelor of Ayurvedic Medicine and Surgery (B.A.M.S.), Ayurvedacharya Course of the College in question for different Semesters of Sessions beginning from 1996 to 2001. 3. It is submitted by learned counsel for the petitioners that some of the petitioners and other students of the College were allowed to appear in First and Second Semesters and results were also published and when the petitioners applied for their appearance in Third Semester, the Vice-Chancellor of the University raised certain objections and in this regard Vice- Chancellor, respondent no. 4, requested the Divisional Commissioner, Chapra vide communication as contained in Annexure- 3 as to whether the College in question is realising capitation fee from its students. The Divisional Commissioner in response to the communication made by the Vice- Chancellor as contained in Annexure-3 got the matter enquired by the Director of Accounts, Administration and Self-Planning Siwan and the report was communicated to the Vice-Chancellor. Learned counsel further submits that from the report of the Divisional Commissioner, it would appear that the College in question used to charge fee amounting to Rs. 1,01,000/- from each student towards fees for the entire sessions and no capitation fee is charged from the students and still then the Vice- Chancellor is not allowing the students of the college in question to appear in Third Semester examination. 4. Counter affidavit and also supplementary counter affidavit have been filed on behalf of the State. A counter affidavit has also been filed on behalf of the University. 5. The counter affidavit filed on behelf of the respondent-University proceeds on the assumption that the College in question is charging capitation fee from its students and it amounts to commercialisation of the institution and thus, the College is acting beyond the law prescribed in the case of Unni Krishnan, J.P. and others V/s. State of Andhra Pradesh and others [(1993)1 Supreme Court Cases 645]. The State in its affidavit has stated that holding of the examinations is concern of the University and so far as framing of the Rules is concerned, as per direction of the Apex Court in the case of Unni Krishnan (supra), steps have been taken and the matter is pending consideration but till date rules have not been framed. 6. Mr. Giri, learned counsel appearing on behalf of the petitioners, submitted that restriction put in the case of Unni Krishnan (supra) has been examined by the Constitutional Bench of the Apex Court in the case of T.M.A. Pai Foundation & others V/s. State of Karnataka & others [2003 (1) PLJR (SC) 1] and the Constitutional Bench held :- "In view of the discussion hereinabove, we hold that the decision in Unni Krishnans case, insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, Medical Council of India, Central and State Governments, etc. are overruled." 7. Mr. Giri submitted that the restriction put in the case of Unni Krishnan (supra) should not be adhered to in view of the ratio laid down by the Constitutional Bench of the Apex Court in the case of T.M.A. Pai Foundation (supra) and the respondent-University should arrange examinations of the students of the College including the petitioners for various Semesters, as prayed for. 8. From the materials on record and pleadings of the parties, it appears that the Vice-Chancellor in all its sincerity tried to find out as to whether the College in question is charging capitation fee and thus, it is commercialising the institution. The action of the University in withholding the examination for some time, thus, cannot be said to be unreasonable nor in violation of the Statutes of the University. 9. It is true that students of the College in question did appear in some of the Semesters and results of the examinations were also declared. It is also admitted fact that the College in question is recognised one and its students are being allowed to appear in different examinations held by the University. 10. 9. It is true that students of the College in question did appear in some of the Semesters and results of the examinations were also declared. It is also admitted fact that the College in question is recognised one and its students are being allowed to appear in different examinations held by the University. 10. Under the circumstances, I am of the view that respondent-University should examine the matter afresh in the light of the judgments, as referred to above, and pass necessary orders for appearance of the petitioners in the examination of different Semesters. 11. The learned Vice-Chancellor will examine the cases of Unni Krishnan and T.M.A. Pai Foundation (supra) which directly deal with the issue in question and thereafter shall pass necessary orders in the matter in accordance with law. Since it relates to the examination of the students of the College in question, decision, if any, must be taken by the learned Vice-Chancellor within a period of four weeks from the date of receipt/production of a copy of this order. 12. With the aforesaid directions and observations, this application is disposed of.