Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 2371 (RAJ)

Kiran Malviya v. State of Rajasthan

2005-09-07

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-There is no dispute so far as claim of the petitioner is concerned as the petitioner is a student of Diploma Course of Nurse/Compounder in/Ayurveda as she is duly qualified and she has been given admission in the said course for the Session 2001-2002. The petitioner since admitted in the Government Ayurveda Nurse/ Compounder Training Centre, Punjla, Jodhpur, the college which was affiliated with the Rajasthan University, Jaipur, she was eligible to appear in the examination which was to be conducted by the Rajasthan University, Jaipur for all the students of the Rajasthan University, Jaipur including the students of all affiliated colleges for the said course. In the ordinance framed under the Rajasthan University Act, the complete procedure for admission to the course as well as examination is given in Ordinance 329-N-31. 2. For the purpose of ensuring efficient and systematic instructions, teaching, training, research and development of Ayurved, Unani, Naturopathy, Homeopathy, Siddha and Yoga system of medicines, the State of Rajasthan enacted the Rajasthan Ayurved University Act, 2002 (for short “the Act of 2002”) and established Rajasthan Ayurved University at Jodhpur. The above Act of 2002 came into force with effect from 24.05.2003. by virtue of Section 6 of the Act of 2002, all institutions educating in the field of imparting instructions, teaching, training, research and development in the subjects referred above stands affiliated with the Rajasthan Ayurved University, Jodhpur and affiliation of all the colleges imparting such education was withdrawn from Rajasthan University, Jaipur by the Act of 2002. Because of this reason only, the petitioners college-respondent No. 4 Government Ayurved Nurse/Compounder Training Centre, Punjla, Jodhpur, by operation of law became affiliated to Rajasthan Ayurved University, Jodhpur (respondent No. 2) (in short Ayurved University, Jodhpur). It will be worthwhile to mention here that all existing educational institutions of Indian system for medicines and which has already obtained affiliation and recognition from any University in the State of Rajasthan stand affiliated to the newly established Ayurved University, Jodhpur and not only this but as per Sub-section (1) of Section 6 of the Act of 2002, a bar has been created against getting association in any way and against seeking admission to any privileges of any other University in the State of Rajasthan for the above mentioned subjects of Ayurved, Unani, Naturopathy, Homeopathy, Siddha and Yoga. .3. .3. Since, the Act was enacted in the year 2002 and the petitioner was already admitted for the course referred above in the year 2001, her college affiliation stands transferred to the Rajasthan Ayurved University, Jodhpur during currency of the Session w.e.f. 24.05.2003. By that time, the examination for the courses referred above already started under the affiliation of the colleges with the Rajasthan University. It was difficult for the Ayurved University, Jodhpur to conduct examination as there was no time left for this, therefore, by exercising power Section 61 of the Act of 2002, the State Government issued a Notification on 13.06.2003 (Annexure-1) and ordered that the examination for .the academic Sessions 2002-03 shall be conducted by the Rajasthan University, Jaipur and the Rajasthan University, Jaipur shall award the degrees to the successful candidates for the academic Session 2002-03 in accordance with the provisions applicable to the Rajasthan University, Jaipur. In view of the Notification of the State Government dated 13.06.2003 (Annexure-1), it appears that a temporary arrangement was made which was necessary to overcome the difficulties which came in way in conducting the examination of a particular year because of paucity of time and because of the fact that examination for the said course have already started and the Ayurved University, Jodhpur was not in a position to conduct the examination. The petitioner, unfortunately because of her illness could not appear in the examination in the year 2003. The petitioner, therefore, requested respondent No. 4 College, fro allowing her to appear in the examination when the supplementary examinations for the petitioners course were to take place. One more student, Kaman Narayan, who though appeared in the examination for the Sessions 2002-2003 held in the month of December, 2003 but he failed, therefore, he was also eligible to take examination in the supplementary examination. The petitioners college, in turn, wrote a letter on 08.09.2003 to the Registrar, Rajasthan University, Jaipur to hold examination for the petitioner as she is regular student of respondent No. 4 college. The letter was not replied by the Rajasthan University. Then, respondent No. 4 college again sent a letter to the Registrar Rajasthan University, Jaipur on 110.2004 and requested that two students are suffering serious mental agony because their examinations are not being taken by the University. The letter was not replied by the Rajasthan University. Then, respondent No. 4 college again sent a letter to the Registrar Rajasthan University, Jaipur on 110.2004 and requested that two students are suffering serious mental agony because their examinations are not being taken by the University. Yet third letter was sent to the Registrar, Rajasthan University by respondent No. 4 college on 111.2004 pointing out that respondent No. 4 has already written two letters and those letters have not been responded. It was also pointed out that even no instructions have been issued to respondent No. 4 with respect to the two students who were originally had enrollment with the Rajasthan University. In this letter dated 111.2004, the College requested that Ayurved University, Jodhpur is about to conduct the examination from 10.12.2004 to 212.2004 and, therefore, the said two students may be permitted to appear in the said examination which are to be conducted by the Ayurved University, Jodhpur. It was further pointed out that the college of both the students is at Jodhpur and both the students are also at Jodhpur and duly constituted University is also at Jodhpur, therefore, it will be just and proper to allow these two students to take examination from Ayurved University, Jodhpur. 4. The Deputy Registrar (Examinations), Rajasthan University, Jaipur responded to the respondent No. 4 college letter dated 111.2004 and informed the respondent No. 4 college that college may contact with the Registrar, Ayurved University, Jodhpur for permitting respondent No. 4s two students to appear in the supplementary examination from Ayurved University, Jodhpur. The copy of this letter was forwarded to the Registrar Ayurved University, Jodhpur. In response, the Controller of Examinations of the Ayurved University, Jodhpur informed the Deputy Registrar (Exam.), University of Rajasthan, Jaipur vide letter dated 211.2004 that in view of the ordinance issued by the Government of Rajasthan dated 18.05.2004, all examinations of all the students admitted in 2002 and enrolled at University of Rajasthan, Jaipur are to be conducted by the University of Rajasthan only. 5. 5. In the above facts, the petitioner was left in lurch as the Ayurved University constituted for specific purpose, refused to allow the petitioner to take examination and she was the only student in entire Rajasthan for whom according to Ayurved University, Jodhpur, the Rajasthan University should conduct the examination despite the fact that the subject specialty University was established by the State Government by enacting the Rajasthan Ayurved University Act, 2002 containing a provision of not only establishing the Ayurved University but it puts a restriction against seeking any admission in any other University for the course of Ayurved, Unani, Naturopathy, Homeopathy, Siddha and Yoga within the State of Rajasthan. The plea of the Ayurved University, Jodhpur is that the State Government by Notification dated 18.05.2004, by exercising power under Section 61 of the Act of 2002, directed the Rajasthan University, Jaipur to continue with the examinations for the students who were enrolled in the Rajasthan University and further directed that the degrees to those students will be awarded by the Rajasthan University. .6. As stated above, there is no dispute that the petitioner is eligible student, got the admission in the course, she is eligible to take examination and the respondents are under obligation to make all arrangements for examination. The question is that who will conduct the examination for one student whose college is situated at Jodhpur and the University was established for awarding degree in the subject of the petitioner at Jodhpur and by the same Act by which the Ayurved University was .established, the power to grant degree in the said subject from other Universities has been withdrawn. The dispute is inter se between the two Universities and the State Government is watching. The college Principal (Respondent No. 4) tried his best to forward the matter to both the Universities and both the Universities made the petitioner a shuttle-cock. The petitioner apprehending that since the respondents are not in position to decide what to do in the matter of conducting the examination for the petitioner and she may not be allowed to appear in the examination, therefore, the petitioner preferred this writ petition before this Court without any delay and this Court while issuing notice for final disposal directed respondent Nos. 2 and 4 (Ayurved University, Jodhpur and petitioners college-Government Ayurveda Nurse/Compounder Training Centre, Punjla, Jodhpur) to allow the petitioner to take her examination of D.A.N.C.T. Part 1st which was scheduled from 10.12.2004 and because of this interim order only, the petitioner could appear in the examination. 7. None of the respondents looked into the matter even after notice of the writ petition seriously as usually happens as the State or other authorities get alibi for not applying mind on the ground that “matter is pending in Court” and during pendency of litigation, the State and other authorities cannot accept just claim of the petitioner. The petitioner was allowed to appear in the examination in pursuance of this Courts interim order dated 012.2005. Her result was not declared, therefore, the petitioner on 17.02.2005 submitted an application for getting her result declared. Again the writ petition was listed in Court on 02.03.2005 and on 28.03.2005 and thereafter, on 30.03.2005. On 30.03.2005, this Court after hearing Counsel for the parties took note of the fact that there were only two students left out whose examinations are not being conducted by any of the Universities despite the fact that so far as the eligibility of the students is concerned, None of the University is disputing. Not only above but in the changed circumstance, only the petitioner remained eligible student to appear in the examination. This Court, therefore, after recording facts, passed the following order on 30.03.2005, the relevant portion of which is quoted herein below:- “In these circumstances, the student, who is eligible has been given admission, has been made to suffer because of the order passed by the persons sitting above and issued directions to the Rajasthan University and to the Rajasthan Ayurveda University, Jodhpur time to time, but now they are not deciding who will take examination for one girl student. It may be possible that since it was a case relating to one student, it may have escaped the notice of the State authorities, but the petitioner preferred the writ petition before this Court in the month of December., 2004 the interim order was passed by this Court on 012.2004 and petitioner was permitted to take examination of DANCT Part 1st, which was going to be held from 10.12.2004. The petitioner appeared in the examination and is now seeking relief of declaration of her result so that in case she succeeds in the examination she may get the admission in higher class. It appears that Rajasthan Ayurved University, Jodhpur is satisfied that despite giving them authority to award degree in Ayurveda subject for entire area of State of Rajasthan, for one student exams be conducted by one University in which there is no faculty. Neither Rajasthan University nor the Rajasthan Ayurved University, Jodhpur could pursue the matter of the petitioner nor could the State authority assess what the State has done to petitioner. If the order would not have been passed by this Court, the career of the student might have been ruined by person competent to decide the matter. The above facts in detail only reveal that an eligible student is searching the authority who will take her examination and will grant the degree and the person sitting on the helm of affairs have shown their total inability to decide this question whether the Rajasthan University should set paper for one student for one course and keep the student with them till she gets either degree or may fail fighting the case in Court. There is no dispute that Rajasthan University as well as Rajasthan Ayurveda University, Jodhpur both are taking help of the orders passed by the State Government. This Court feels that there are no feelings or touch of sentiments for a student left and the authorities like Universities cannot convince themselves or to State that what will be proper; whether for one student Rajasthan University continue the course or Ayurveda University, Jodhpur can accommodate one more student with all other students. Whether migration of one student from one University to another in consequence of orders passed by the State is impossible? The matter could have been decided by the authorities, who issued one after another order taking away right of the Rajasthan University of granting degree in the subjects involved in this matter and authorized the Rajasthan Ayurveda University, Jodhpur to grant degree and who issued the order of relaxation time to time, but are not ready to decide themselves for one student. Since, the petitioner appeared in examination only because of the intervention of this Court for DANCT Part 1st, purpose is saved for the time being. Since, the petitioner appeared in examination only because of the intervention of this Court for DANCT Part 1st, purpose is saved for the time being. So far as her eligibility is concerned, there is no dispute, therefore, it is directed that the State Government shall pass appropriate orders for this one petitioner so that she need not to seek any further relief from this Court in this matter and in case, the State Government feels that they cannot decide, they should file affidavit in writing that despite various orders passed by them in the matter of awarding degree in the subjects for which an independent Rajasthan Ayurveda University, Jodhpur has been established by them, the State Government cannot solve the problem created by their orders. The copy of this order be sent to the Chief Secretary, Government of Rajasthan, Jaipur as well as to the Secretary, Ayurveda Department, Jaipur”. 8. In compliance to the order of this Court dated 30.03.2005 copy of the order dated 30.03.2005 was sent to the Chief Secretary, Government of Rajasthan, Jaipur and the Secretary, Ayurveda Department, Jaipur on 31.03.2005 by the office. Thereafter, the reply has been filed by the State on 11.04.2005. The stands taken in the reply was so shocking that the Court had to pass yet another order in detail and copy of this subsequent order dated 12.04.2005 was also sent to the Chief Secretary and he was directed to remain present in Court on 25.04.2005. The reply of the State is a good example of total not only carelessness in dealing with the problems by the administrative officers working in the State of Rajasthan but shocking example of dealing in conducting cases even at the level of High Court. All facts also show that how high one may be, his letter can (rather usually) be ignored by the other high authority. Meaning thereby, what to say of giving heed to grievance of public by the administrative authorities, they are least concerned with the issues raised by the persons holding high position in the Universities and in the Government. Before saying anything more, it will be worthwhile to quote the order dated 12.04.2005 which will make clear that why the Courts are flooded with unnecessary litigation. Before saying anything more, it will be worthwhile to quote the order dated 12.04.2005 which will make clear that why the Courts are flooded with unnecessary litigation. The order dated 12.04.2005 passed by this Court is quoted herein below:- “This Court after hearing learned Counsel for the parties including learned Counsel for the State passed a detailed order on 30.03.2005 and this Court directed as under: “So far as her eligibility is concerned, there is no dispute, therefore, it is directed that the State Government shall pass appropriate orders for this one petitioner so that she need not to seek any further relief from this Court in this matter and in case, the State Government feels that they cannot decide, they should file affidavit in writing that despite various orders passed by them in the matter of awarding degree in the subjects for which an independent Rajasthan Ayurveda University, Jodhpur has been established by them, the State Government cannot solve the problem created by their orders.” The copy of the order dated 30.03.2005 was sent to the Chief Secretary, Government of Rajasthan, Jaipur by this Court. After all above, the reply to the writ petition has been filed on 11.04.2005 by the State admitting that the petitioner attended the classes regularly after taking admission in Part 1 of the Diploma Course and petitioner since was sick, therefore, could not appear in the examination of Part-1 of the Diploma Course conducted by the Rajasthan University, Jaipur for the year 2003 and she submitted her illness certificate, which was issued by the authorized medical officer. After supporting all the pleas taken by the petitioner so far as her eligibility is concerned, her right to take examination for the course is concerned and on declaring pass, her right to get Diploma in the subject is concerned, the State requested this Court to dismiss the writ petition with costs. The reply has been filed to demonstrate that the efforts have been made for persuading the Rajasthan University, Jaipur to allow the petitioner to take examination and despite above plea of the State, the States request is that the writ petition be dismissed with costs. The reply has been filed to demonstrate that the efforts have been made for persuading the Rajasthan University, Jaipur to allow the petitioner to take examination and despite above plea of the State, the States request is that the writ petition be dismissed with costs. After admitting petitioners case on merit and after knowing the interim order passed by this Court on 012.2004 and after complying with the interim order of this Court dated 012.2004 for which this Court in its order dated 30.02.2005 observed as under: “Since, the petitioner appeared in examination only because of the intervention of this Court for DANCT Part 1st she is saved for the time being.” The State prayed that the stay petition filed by the petitioner be dismissed, at the cost of repetition, after submitting that the Rajasthan University, Jaipur should take the examination for the petitioner. This is how the State Government is functioning even after when the orders of the Courts are sent to the Chief Secretary, Government of Rajasthan Jaipur. How the replies are filed before the High Court where anguish of the Court in dealing with the students by the State Government is more than apparent from the order itself , though may not be conveying full anguish, which was shown and is being shown in open Court by the Court.” and thereafter it was observed:-“It will be worthwhile to consider the reply filed by the State. There is a dispute (artificially created) between the Rajasthan Ayurveda University, Jodhpur and Rajasthan University, Jaipur. But for the orders passed by the State Government and but for enacting the Rajasthan Ayurveda Act, 2002, there was no problem for the petitioner and despite this fact, the reply has been filed by the State by appointing officer incharge, who is one of the respondent and pursuing his own stand and wants to shift burden upon other. In the reply, the State could have disclosed the stand of the State and should have disclosed the efforts made by the State whereas the reply contains what the respondent No. 4 did to pursue his cause as a Principal of the Government Ayurveda Nurse/Compounder Training Centre, Punjla Jodhpur. In the reply of the State through such officer incharge only it has been given out what the non-petitioner No. 4 has done. In the reply of the State through such officer incharge only it has been given out what the non-petitioner No. 4 has done. It will be worthwhile to quote few lines from the reply: “Page No. 41 Humble answering non-petitioner No. 4 wrote several letters to the Rajasthan University, Jaipur for conducting the supplementary examination for these two students.” “Page No. 41 However, Rajasthan University Jaipur has written letter dated 211.2004 to the Humble answering non-petitioner No. 4 in response to the several letters sent by the answering non-petitioner No. 4 and suggested to contact the registrar, Ayurved University, Jodhpur for permitting the candidates to appear at the supplementary examination for the above two students including the petitioner.” “Page No. 41 Humble answering non-petitioner No. 4 also wrote letter dated 30.11.2004 to the non-petitioner No. 2 and requested that these two students may be permitted to appear in the examinations......” “Page No. 42 Humble answering non-petitioner No. 4 also wrote letter dated 012.2004 to the non-petitioner No. 3 (Rajasthan University, Jodhpur) and made request that for saving the educational career of both the students, appropriate steps may be taken.” Question arises whether State acted or was total dependent upon respondent No. 4 Question arises whether it was just and proper for the Government to demonstrate that the Government helplessly pleaded before Rajasthan University to conduct examination for one student and the Rajasthan University is not ready to oblige the State Government? In entire reply there is no mention of any fact relating to the action taken by the State. Obvious reason may be the officer incharge who had his own interest, therefore, he explained what he did. Such officer incharge may not have even access to the Government record and, therefore, from reply it nowhere appears that what is the reply of the State to the contentions raised by the petitioner in the writ petition. Except writing that reply is on behalf of respondent No. 1 (State) and on behalf of the respondent No. 4, there is not a single word for the State in the reply. Except writing that reply is on behalf of respondent No. 1 (State) and on behalf of the respondent No. 4, there is not a single word for the State in the reply. It appears that the order of this Court was looked into even when those were sent to learned Chief Secretary to Government of Rajasthan the State Government demonstrated that the State Government cannot take decision much less in time, even after such a long period looking to the total period available to the petitioner for pursuing her studies for a diploma course of two years. The question which emerges out even after the reply as submitted on behalf of respondents No. 1 and 4 whether it will be just and proper for the Rajasthan University, Jaipur to conduct the examination for one student from entire Rajasthan because of the reason that this fact is not in dispute that the stand as taken by the respondent-State, the Rajasthan University, Jaipur should take examination for one student from entire Rajasthan. This Court in its order dated 12.04.2005 again reproduced the Courts observations in order 30.03.2005 as under: “This Court in its order dated 30.03.2005 constrained to observe as under “The above facts in detail only reveal that an eligible student is searching the authority who will take her examination and will grant the degree and the person sitting on the helm of affairs have shown their total inability to decide this question whether the Rajasthan University should set paper for one student for one course and keep the student with them till she gets either degree or may fail fighting the case in Court. There is no dispute that Rajasthan University as well as Rajasthan Ayurveda University, Jodhpur both are taking help of the orders passed by the State Government. This Court feels that there is no feelings or touch of sentiments for a student left and the authorities like Universities cannot convince themselves or to State that what will be proper; whether for one student Rajasthan University continue the course or Ayurveda University, Jodhpur can accommodate one more student with all other students. Whether migration of one student from one University to another in consequence of orders passed by the State is impossible? Whether migration of one student from one University to another in consequence of orders passed by the State is impossible? The matter could have been decided by the authorities, who issued one after another order taking away right of the Rajasthan University of granting degree in the subjects involved in this matter and authorized the Rajasthan Ayurveda University, Jodhpur to grant degree and who issued the order of relaxation time to time, but are not ready to decide themselves for one student. In view of the above facts, this Court finds no assistance from the State Government and this Court constrained to observe that State must have courage to contest the cases, if they have any courage left with them, but should not wear a mask of humbleness and should not show false sympathy to the students, which has been projected in the reply filed on behalf of the State by mentioning as under: "Humble non-petitioner are having all the sympathy for petitioner for the purpose of saving and encouraging the educational career of a woman student and already issued various above-mentioned letters in this respect. It is shocking that in the same paragraph, next line is as under: “However, issuing above referred letters will not create any right much less then fundamental right in favour of the petitioner;” All above created a un-precedent situation before this Court and, therefore, it will be necessary to direct the Chief Secretary, Government of Rajasthan, Jaipur to appear personally before this Court to explain their working in dealing with the Court order and dealing with the cases and the manner in which the officer incharges are appointed to conduct the cases and all other matters, which may come up for consideration in this writ petition and of which note has been taken by this Court in detailed order in its order dated 30.03.2005. The copy of this order be sent to the chief Secretary, Government of Rajasthan Jaipur and the Chief Secretary, Government of Rajasthan Jaipur is directed to remain present in Court on 25.04.2005 The respondent No. 2 Rajasthan Ayurveda University, Jodhpur is directed to declare the result of the petitioner and permit her to attend the classes of next year course if she is declared passed.” 9. It appears that when the copy of the order dated 12.04.2005 reached to the Chief Secretary, as sent by the office of this Court on the next date on 13.04.2005, the officers started applying mind but it appears that that was for the purpose to avoid harassment to the Chief Secretary of the Government of Rajasthan and, therefore, an application was submitted on 19.04.2005 stating therein that the State has passed the order canceling the enrollment of the petitioner from Rajasthan University and the Ayurveda University, Jodhpur has been directed to enroll the petitioner from 2003 and now the relief has been granted to the petitioner, therefore, the writ petition may be disposed of as having become infructuous in view of the State Governments order dated 13.04.2005 and the Court may please to dispense with the personal presence of the Chief Secretary. In this application dated 19.04.2005, the State unequivocally admitted that the order dated 30.03.2005 was not understood in its correct perspective. This plea appears to has been taken to avoid embarrassment but at this stage also, the State officers could have submitted before this Court in the light of Courts observation about conducting the case before the High Court whether any step will be taken or still in the opinion of the Government, there is no need to look into all aspects of Government working in Court cases. The learned Chief Secretary was not called because without his presence the Court could not have granted relief to the petitioner. The relevant portion from Para No. 2 of the application is quoted, which reads as under:- “However, it is submitted that the order dated 30.03.2005 was not understood in its correct perspective and, therefore, while filing reply, the true import of the order was not properly understood. Thereafter, the Honble Court passed order on 12.04.2005.