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Madhya Pradesh High Court · body

2011 DIGILAW 309 (MP)

Mahesh Singh v. Barkatullah University

2011-03-07

K.K.LAHOTI, S.SHRIVASTAVA

body2011
JUDGMENT : This order shall decide W.P. No.4048/2011 [Mahesh Singh vs. Barkatullah University & others] and W.P. No. 4050/2011 [Munesh Kumar vs. Barkatullah University & others] in which facts and relief prayed are similar. It is submitted by the petitioner that the respondent No.2 submitted a list of the students admitted for B.P.Ed. Course and deposited all the fees with the respondent No.1 but the respondent No.1 is not conducting special examination for B.P.Ed. without any reason. It is submitted that respondent/University be directed to conduct special examination for the petitioners for B.P.Ed. Course, as directed by this Court in W.P. 18067/10. As the controversy is squarely covered by the decision of this Court in W.P.18067/10 (Dalchand & others vs. Barkatullah University), for ready reference relevant part of the order is quoted hereunder, we propose to dispose of this matter finally. Facts of the present case are that the respondent No.2 is running B.P.Ed. [Bachelor of Physical Education] course. The respondent No.2 institution was affiliated by the respondent No.1 on 18.11.2008 and in this regard NCET already issued a NOC on 3.9.2008. Respondent No.2 institution admitted the students of petitioner Sangh. They have attended the classes as per the norms fixed by the NCET and all the students submitted their examination forms along with the examination fees which were accepted by the respondent no.1 but the students of petitioner Sangh were not permitted to appear in the examination commenced from 16.9.2010. So far as the examination of 16.9.2010 is concerned, it has been postponed and for other papers are concerned, the examination were conducted on the scheduled date. The petitioner filed this petitioner for following reliefs on 20.9.2010 :- 1. This Hon. Court be pleased to call for the entire relevant record for kind perusal of this Hon. Court. 2. This Hon. Court be further pleased to issue a writ of mandamus, directing the respondent No.1 to allow the 50 students of B.P.Ed. Of respondent No.2 college (mentioned in the list Annexure P-3) to appear in the examination of B.P.Ed for the year 2008-09 from 20th September,2010 upto 29.9.2010. 3. 2. This Hon. Court be further pleased to issue a writ of mandamus, directing the respondent No.1 to allow the 50 students of B.P.Ed. Of respondent No.2 college (mentioned in the list Annexure P-3) to appear in the examination of B.P.Ed for the year 2008-09 from 20th September,2010 upto 29.9.2010. 3. This Hon. Court be further pleased to issue a writ of mandamus, directing the respondent No.1 to allow the 50 students of B.P.Ed of respondent No.2 college (mentioned in the list Annexure P-3) to appear in the second paper "Psychology of Physical Education" (which was held on 18.9.2010 and the said 50 students could not appear in such examination) in Supplementary Examination of such paper." The matter was taken up by this Court for hearing on 21.9.2010 on which date, this Court passed following orders :- Shri Pateria, learned counsel appearing for respondent No.1 submitted that he has received instructions from the respondents and it is submitted that because there were no classes for 180 days so the students of petitioner institution has not been permitted to appear in the examination. To this, Shri Agrawal submitted that all the students of the petitioner institution have attended the classes for more than 180 days and there is no short attendance. It is further submitted that the students of the petitioner institution may be permitted to appear in the examination and result of the students may not be declared. Though Shri Paterial appearing for the respondent No.1 opposed the prayer but he submitted that in case the result of students is withheld, then respondent University may arrange the examination of these students. However, result may not be declared. In view of the aforesaid, hearing of this case is adjourned for 4.10.2010. Meanwhile reply if any be filed within the aforesaid period. The respondents Barkatullah University, Bhopal is directed to permit the students of petitioner institution to appear in the examination if they are otherwise eligible, except on the ground of attendance of 180 days, to appear in the ensuing examination. But the aforesaid appearance shall be permitted by the respondents subject to filing of the examination form, payment of examination fees etc. However, result of all the students shall not be declared by the university which shall be subject to further orders in the matter. But the aforesaid appearance shall be permitted by the respondents subject to filing of the examination form, payment of examination fees etc. However, result of all the students shall not be declared by the university which shall be subject to further orders in the matter. Thereafter, it was submitted that the respondent No.1 has not permitted the students of the petitioner Sangh to appear in the examination and on raising such contentions order dated 28.9.2010 was passed and in compliance of the same, an affidavit is filed. Shri Pateria, learned counsel for respondent No.1 submitted that in view of the specific order passed in W.P.No.8449/2009, the students were not permitted to appear in the examination. However they are now fulfilling all the requisite eligibility criteria as has been fixed by the NCTE. Shri Gupta, learned counsel appearing for respondent No.2 supported the petitioner and submitted that all the students of respondent No.2 college who have approached this Court by filing this petition were eligible in accordance with the norms and were entitled to appear in the examination. However, they have been deprived by the respondent No.1 on incorrect pretext, of dismissal of earlier petition. In that petition a question for consideration before this Court was in respect of non permitting the students of the respondent No.2 college for B.P.Ed course for the academic session 2008-09. This Court considering the question in para 4 of the judgment found that the affiliation was granted on 18.11.2008 while NCTE granted recognition on 3.9.2008 but the respondent No.2 admitted the students between 3.7.2008 and 7.7.2008 which was before the period of grant of recognition. On the aforesaid grounds the students were not permitted to appear in the examination and the action of the respondent in not permitting the students to appear in the examination was affirmed by this Court. But now the factual position is entirely different. Learned counsel appearing for the parties submitted that for the students who were admitted in the academic session 2008-09 and 2009-2010, no examination are conducted by the respondent No.1 in so far as it relates to B.P.Ed. Course and for the first time, this examinations are conducted in the month of September,2010, for which the students of respondent No.2 college who are the petitioner were eligible to appear in the examination. Course and for the first time, this examinations are conducted in the month of September,2010, for which the students of respondent No.2 college who are the petitioner were eligible to appear in the examination. They have already attended 180 days classes which they could not attend at the time when the earlier W.P.8449/2009 was filed. But at present, for the examination, all the students were eligible to appear in the examination. On the wrong pretext of earlier dismissal of the petition, all the students were deprived to appear in the examination. Though the aforesaid action of the respondent No.1 has been defended in the return but considering the controversy involved in W.P.8449/2010, we find that the action of the respondent No.1 is not correct in depriving the students to appear in the examination. The college has been duly recognised by the NCTE and has been affiliated with respondent No.1 University. The students have already attended the classes as per the norms fixed by the NCTE and were entitled to appear in the examination. The respondent No.1 inspite of the order dated 21.9.2010 has not permitted the students to appear in the examination. Though the aforesaid action has been tried to be justified on the anvil of the judgment passed in but the aforesaid contention of the respondent No.1 has no legs to stand. The controversy in W.P.8449/2009 was entirely different and at present the students of petitioner Sangh were entitled to appear in the examination but they have been wrongly deprived to appear in the examination because of the incorrect decision of respondent No.1. Inspite of the order dated 21.9.2010 students were not permitted to appear in the examination. In these circumstances we allow this petition and direct respondent no.1 as under :- 1. The respondent No.1 is directed to arrange a separate/special examination for the petitioner students of respondent No.2 within a period of two months from today. 2. Respondent No.1 shall permit all the students to appear in the examination in accordance with law if they are otherwise eligible to appear in the examination." As agreed by the parties, this petition is also finally disposed of in terms of directions issued by this Court in Dalchand (supra). The aforesaid directions shall be applicable in the case of the petitioners as far as they are applicable. No order as to costs.