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Allahabad High Court · body

2012 DIGILAW 682 (ALL)

NITISH KUMAR v. STATE OF U. P.

2012-03-21

V.K.SHUKLA

body2012
V.K. Shukla, J. Petitioner has rushed to this Court with request to issue a writ in the nature of mandamus directing the respondents to issue admit card to the petitioner for appearing in the First Semester examination of MBA course and not to create any obstruction to the petitioner undergoing the MBA course and the petitioner be treated as lawfully admitted student in MBA course. Petitioner has passed his graduation with 49.33% marks from Agra University, Agra. Petitioner thereafter applied for getting admission to MBA course; he undertook entrance examination known as U.P. State Entrance Examination-2011. Petitioner claims that in the eligibility criteria as mentioned in the brochure of the College was as under: "3.2 ( ii) Eligibility to Appear in UPSEE-2011 for admission to first year of MBA/MCA.- for admission to first year of MCA in any institution affiliated toGBTU, Lucknow and MTU, Noida a candidate must have passed Bachelors degree course of three years or more duration from any recognized University: or its equivalent, securing 40% ( 35% for SC/ST) marks in aggregate. Candidate must have minimum 40% ( 35% for SC/ST) marks in Mathematics at 10+2 level or at Bachelor degree level." Petitioner submits that he is general category candidate and has secured 49.33% marks, as such he was eligible and entitled to claim admission in MBA course. Petitioner submits that counseling letter was sent to him and he appeared in the counseling and thereafter, he was accorded admission to Galgotia Institute of Management and Technology, Greater Noida, District Gautam Budh Nagar on 23.07.2011. Petitioner submits that at the point of time when admit card was not sent to him, then he enquired and learnt that he was ineligible, and then at this juncture, petitioner has rushed to this Court. Sri Virendra Sharma, learned counsel for the petitioner, contended with vehemence that the petitioner was not at fault and had been accorded admission as per terms and conditions of the brochure, and in view of this he ought to have been permitted to undertake the examination. Sri Virendra Sharma, learned counsel for the petitioner, contended with vehemence that the petitioner was not at fault and had been accorded admission as per terms and conditions of the brochure, and in view of this he ought to have been permitted to undertake the examination. Countering the said submissions, learned standing counsel as well as Sri Neeraj Tiwari, Advocate, contended that minimum eligibility criteria for admission as prescribed by AICT is 50% and the brochure of the University contained incorrect recital and accordingly, on 07.02.2011 Corrigendum was published in newspapers and also on the website of the University that minimum eligibility criteria for admission was 50% in graduate examination, and in the brochure it was wrongly mentioned as 40%, and the incumbents who do not fulfill the minimum eligibility criteria and have been accorded admission, they could ask for refund of their fee and further that the University had no authority to change the criteria. After respective arguments have been advanced, factual situation which has so emerged in the present case is that in the brochure of the University eligibility criteria for admission to MBA course was wrongly mentioned as 40% in graduate examination. After realizing the mistake Corrigendum was published in news papers as well as on the website of the University making it to be 50%, and it was clearly and categorically mentioned that those who were not entitled for admission after fixing the eligibility criteria as 50%, their fees would be refunded to them. Once accepted position is that the criteria prescribed by the AICT is 50% marks in the graduate examination, then as far as examining body, i.e., the University, is concerned, it has got no authority to change the criteria of 50% fixed by the AICT. The Apex Court in the case of State of Tamilnadu Vs. S.V.Bratheep reported 2004 ( 4) SCC 513 , has clearly taken the view that standard prescribed by the State Government should not be adverse to or lower than those prescribed by AICTE. State Government can prescribe standards higher or additional to those prescribed by AICTE and standards should be realistic and attainable. Relevant paragraphs of the aforesaid judgement is being extracted below: "9. State Government can prescribe standards higher or additional to those prescribed by AICTE and standards should be realistic and attainable. Relevant paragraphs of the aforesaid judgement is being extracted below: "9. Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to from an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards-laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by the AICTE. It is no doubt true that the AICTE prescribed two modes of admission - One is merely dependent on the qualifying examination and the other dependent upon the marks obtained at the Common Entrance Test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by the AICTE would allow admission only on the basis of the marks obtained in the qualifying examination the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by the AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either event, the streams proposed by the AICTE are not belittled in any manner. In either event, the streams proposed by the AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by the AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr. Preeti Srivastava's case. It is no doubt true as noticed by this Court in Adhiyaman's case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by series of decisions of this Court including Dr. Preeti Srivastava's case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education. 10. Argument advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. Preeti Srivastav's case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and that proposition is indisputable. The mere fact that there are vacancies in the colleges would not be a matter, which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE they should be admitted even if they fall short of the criteria prescribed by the State. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE they should be admitted even if they fall short of the criteria prescribed by the State. The scope of the relative entries in the Seventh Schedule to the Constitution have to be understood in the manner as stated in the Dr. Preeti Srivastava's case and, therefore, we need not further elaborate in this case or consider arguments to the contrary such as application of occupied theory no power could be exercised under Entry 25 of List III as they would not arise for consideration." Recently Hon'ble Apex Court in the case of The Registrar, Visveswaraya Technological University & Anr. Vs. Krishnendu Halder and others reported in 2011 ( 4) SCC 606has reiterated the same ratio. On the aforesaid parameter, as soon as the University came to know that publication made by the University was counter to the eligibility criteria fixed by the AICT, the University, immediately thereafter proceeded to issue Corrigendum on 07.02.2011, and then the petitioner in the facts of the case cannot derive any advantage of the said fact, once he lacked the minimum eligibility criteria prescribed the expert body AICT. In view of this, as standard fixed cannot be lowered down or altered, no relief or reprieve can be accorded to the petitioner merely because he had undertook the entrance examination. However, as far as return of examination fee is concerned, qua the same liberty is given to the petitioner to approach the Director, Galgotia Institute of Management and Technology, Greater Noida, Gautam Budh Nagar. In the event of any such claim being set up by the petitioner for refund of the fess, the said Institute shall take appropriate steps in the said direction within next four weeks from the date of application made by the petitioner along with a certified copy of this order. Writ petition stands disposed of accordingly.