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2009 DIGILAW 224 (JK)

Vijay Kumari v. State Of J. &K.

2009-05-15

NISAR AHMAD KAKRU

body2009
1. These petitions involving similar nature of controversy shall stand disposed of vide this common order. The facts which are not in dispute are as under: - 2. Respondents-Board of Professional Entrance Examination (here-in-after referred to as the Board) invited applications from eligible candidates for B.Ed. course for the year 2006-07. Vide notification No. 48-BPEE of 2006 dt. 25th of Aug06. The petitioners being eligible, submitted their applications for admission to the said course and were allowed to appear in the entrance examination which was conducted by the Board on 18th of Sept06. Vide notification No.80-BPEE of 2006 dt. 7th of Oct06, the Board, issued a provisional select list in which the names of the petitioners also figured and they were recommended to be admitted in Government B.Ed. College, Jammu. The petitioners after completion of the requisite-formalities appeared before the respondent No. 6 and deposited the fee also for undergoing the said course. Subsequently, the admission of the petitioners was cancelled and the respondent Board vide notification impugned No. 87 BPEE of 2006 dated 18th of Oct06, issued a revised select list of B.Ed, candidates for the said session in which the names of the petitioners did not figure. The said select list was issued on the plea that there was a mistake in applying key to the series. It is this action of the respondents which is the subject matter of challenge in the present writ petitions. 3. Along with the writ petitions, the petitioners moved CMPs seeking interim direction on the ground that as the petitioners have already been selected and have also deposited the requisite fee, therefore, they may be allowed to attend their classes. 4. When these petitions along with CMPs, came up for hearing on 21st of Nov06, this court taking into consideration the fact that in case the petitioners succeed, they will not be able to appear in the examination due to shortage of lectures, passed following order in the CMPs:- Petitioners have already been admitted on the basis of the recommendation made by respondent No.2. In case the petitioners succeed in these petition, then they will not be able to appear in the examination as there will be shortage of lectures as per the norms fixed by the University. Therefore, respondent No. 6 is directed to allow the petitioners to attend the classes. In case the petitioners succeed in these petition, then they will not be able to appear in the examination as there will be shortage of lectures as per the norms fixed by the University. Therefore, respondent No. 6 is directed to allow the petitioners to attend the classes. Petitioners accordingly have attended the classes and fulfilled the criteria as fixed by the University for appearing in the B.Ed. course examination. Respondent No.6 however, did not allow the petitioners to fill up the forms, therefore, this court vide order dt. 1st of Aug07, passed following order: - ......... The petitioners are allowed to fill up the forms. On filling up the forms, the Principal, Government B.Ed. College, Jammu, will send the same to the University for appearing of the petitioners in the examination. This will be subject to the result of the writ petitions and will not confer any right upon the petitioners..... 5. Learned counsel for the petitioners submitted that after the petitioners participated in the selection process initiated by the respondent Board, they were declared successful and their candidature was recommended by the Board for admission to the said course. It is submitted that in pursuance to the said recommendation, the petitioners also deposited the requisite fee for undergoing the Course. It is submitted that once the petitioners have been shown to be the selected candidates and they having been admitted in the course have attended their classes and as the petitioners are not at fault, therefore, their candidature for admission to the B.Ed. course cannot be cancelled subsequently by the Board. 6. On notice, respondent Board has filed objections stating therein that after the issuance of the select list in which the names of the petitioners were shown as have been successful, number of representations were received by the Board through electronic as well as print media whereby dis-satisfaction was shown by some candidates about the selection of petitioners. Keeping in view the said representations, the Board took up the matter with the Result Processing Agency and on conducting an enquiry into the matter, it was found that the Result Processing Agency applied Series A of OMR sheet correctly whereas Series B, C and D" of the OMR answer sheets were not correctly applied due to oversight. Keeping in view the said representations, the Board took up the matter with the Result Processing Agency and on conducting an enquiry into the matter, it was found that the Result Processing Agency applied Series A of OMR sheet correctly whereas Series B, C and D" of the OMR answer sheets were not correctly applied due to oversight. It is stated that on noticing this error in the result generation process, the Board kept in abeyance the provisional select list vide notification No. 11th of Oct06. It is thus stated that as it was an inadvertent error, the same was rectified by issuing the second notification dated 18th of Oct06. The Board has also placed on record a document showing the total intake capacity as 400 out of which 250 candidates are to be admitted as freshers and 150 as Government deputies who are in service. The number of fresh students which have been shown to be admitted is 240 and 137 have been admitted as in service candidates totaling 377. 7. Learned counsel for the respondent Board submitted that as per Clause IX(4) of the Information Brochure, the Board has the right to rectify any bonafide error which is brought to its notice before the completion of the selection process and the selection list can be amended accordingly. It is further stated that as per the intake capacity, only 250 candidates could be admitted as fresh candidates and this number cannot be increased. 8. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and also perused the record. 9. As per Clause IX(4) of the Information Brochure, no doubt, the respondent Board has a right to rectify the mistake, but this can be done before the completion of the selection process as has been prescribed in the aforesaid clause of the Information Brochure. In the present case, the Board completed the selection process, issued the select list and recommended the names of the petitioners to respondent No.6 for being admitted in the Course. In pursuance to the said recommendation, the petitioners also, deposited the requisite fee and have attended the classes though on the directions of this court. In the present case, the Board completed the selection process, issued the select list and recommended the names of the petitioners to respondent No.6 for being admitted in the Course. In pursuance to the said recommendation, the petitioners also, deposited the requisite fee and have attended the classes though on the directions of this court. Therefore, the aforementioned Clause on which reliance has been placed by the learned counsel for the Board, cannot come to its rescue as it has taken action against the petitioners after the completion of the selection process. When there is a mistake on the part of Board, then for the said mistake the petitioners cannot be made to suffer. As indicated above, the Board initiated the selection process in which the petitioners participated and they were declared successful. Thereafter on the recommendation of the Board, the petitioners were given the admission after depositing of the requisite fee. They have studied regularly and now fulfilled the norms as prescribed under the University Stature for appearing in the examination. Thus, as indicated above, the petitioners at this stage cannot be made to suffer due to the fault committed by the respondent Board. In AIR 1976 SC 376, Shri Krishan Vs. The Kurukshetra University, Kurukshetra, it has been held as under: - ...The last part of this statute clearly shows that the University could withdraw the certificate if the applicant had failed to attend the prescribed course of lectures. But this could be done only before the examination. It is, therefore, manifest that once the appellant was allowed to take the examination rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been Hiked into before giving the applicant permission to appear...... It is, therefore, manifest that once the appellant was allowed to take the examination rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been Hiked into before giving the applicant permission to appear...... In the present case, as noticed above, even though the Statute on which reliance has been placed by the respondent Board provides that the Board has the power to rectify the error, if any, committed, but this has to be done prior to the completion of the selection process, therefore, the Board cannot take benefit of the same after the selection process was over and petitioners were allowed to be admitted after depositing of the fee and thus they cannot be thrown out subsequently due to the mistake committed by the Board as has been laid down by the Apex Court in the aforementioned case. In AIR 1986 SC 1448, Rajendra Prasad Mathur Vs. Karnataka University and another, the condition for eligibility for admission to B.E. Degree Course was that the students seeking admission should have passed two year Pre-University Examination of the Pre University Education Board, Bangalore or an examination held by any other Board or University recognized as equivalent to it. The petitioners in the aforesaid case were not possessing the requisite qualification but were given admission to B.E. Degree course under the court orders and they pursued their studies for about four years. Their Lordships of the Apex Court while dealing with the matter observed as under: - We accordingly endorse the view taken by the learned Judge and affirmed by the Division Bench of the High Court. But the question still remains whether we should allow the appellants to continue their studies in the respective Engineering Colleges in which they were admitted. It was strenuously pressed upon us on behalf of the appellants that under the orders initially of the learned Judge and thereafter of this Court they have been pursuing their course of study in the respective Engineering Colleges and their admissions should not now be disturbed because if they are now thrown out after a period of almost four years since their admission their whole future will be blighted. Now it is true that the appellants were not eligible for admission to the Engineering Degree Course and they had no legitimate claim to such admission. But it must be noted that he blame for their wrongful admission must lie more upon the engineering Colleges which granted admission than upon the appellants....... The fault lies with the Engineering Colleges which admitted the appellants because the Principals of these Engineering Colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants. We do not see why the appellants should suffer for the sins of the managements of these Engineering Colleges..... In the cases in hand, the petitioners were eligible and were declared successful for undergoing B.Ed. Course. They were granted admission after depositing of the requisite fee. Their candidature was cancelled subsequently on noticing the error committed by the respondent Board. The petitioners have pursued their course and have fulfilled the criteria for appearing in the examination, therefore, at this stage, it would not be apt to cancel their admissions as the fault lies with the respondent Board. 10. Even otherwise, it be seen that the petitioners have not got the admission by playing any fraud or concealment of any fact from the respondent authorities. They as noticed above, being eligible appeared in the selection process and having declared successful have been recommended for admission by the Board itself. Therefore, once a candidate has not obtained admission by way of fraud or concealment of any fact from the authorities concerned, he/she cannot be made to suffer by canceling his/her admission after joining the classes for the mistake committed by the authorities as has been laid down by the Apex Court in the case of Ashok Chand Singhvi Vs. University of Jodhpur and others (1989)1 SCC 399. Reference in this case was also made to Rajendra Prasad Mathurs case (supra) and it was held as under: - Assuming that the appellant was admitted through mistake, the appellant not being at fault, it is difficult to sustain the order withholding the admission of the appellant. In this connection, we may refer to a decision of this Court in Rajendra Prasad Mathu Vs. Karnataka University. ......... In this connection, we may refer to a decision of this Court in Rajendra Prasad Mathu Vs. Karnataka University. ......... The same principle which weighed with this Court in that case should also be applied in the instant case. The appellant was not at fault and we do not see why he should suffer for the mistake committed by the Vice-chancellor and the Dean of the Faculty of Engineering.... 11. In view of the law laid down by the Apex Court in the aforementioned cases, I am of the view that the fault lies with the respondent authorities and the petitioners cannot be made to suffer for that. 12. At the hearing, Mr. Salathia, learned Additional Advocate General, appearing for respondent State, very fairly made a statement that there is no fault of the petitioners and the fault, if any, lies with the respondent Board. He stated that for the lapse of the Board, the petitioners should not be made to suffer and their admissions may be regularized by making it as a one time exception. 13. For the reasons mentioned above and in view of the statement made by the learned Additional Advocate General, these petitions are admitted and disposed of with the following directions: - 1. That the respondent authorities shall regularize the admission of the petitioners against 23 unfilled seats and also by increasing the intake capacity taking into consideration the number of left over petitioners after adjustment against 23 unfilled seats. 2. That the increase of intake capacity beyond 400 shall be treated as a one time exception so far as admission to the aforesaid Course for Session 2006-07 is concerned and shall not be taken as a precedence for future admission. 3. That the respondent authorities shall make the future admission as per the intake capacity only. 4. That the petitioners, in case, have fulfilled the criteria, then they would be allowed to appear in the examination and their results would be declared accordingly along with other candidates who are pursuing their course with them. 14. Before parting with this judgment, I would like to observe the State Government shall taken appropriate action against the erring officials of the respondent Board who have been responsible in first issuing the select list shown the names of the petitioners as selected candidates and thereafter keeping in abeyance the said list. 14. Before parting with this judgment, I would like to observe the State Government shall taken appropriate action against the erring officials of the respondent Board who have been responsible in first issuing the select list shown the names of the petitioners as selected candidates and thereafter keeping in abeyance the said list. It is also hoped that, in future, the respondent Board shall take every precautionary measures to see that mistake, if any, is rectified before the completion of the selection process and issuing of the select list as has been provided in the Information Brochure itself so that the students are not made to suffer and dragged to unnecessary litigation due to the mistake committed by the respondent Board. In case, such a mistake is committed in future also, then, it will be presumed that the same is being done with a malafide intention and serious view would be taken against the Chairman, Secretary and the Controller of Examination of respondent Board. Disposed of accordingly along with connected CMPs, if any.