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2016 DIGILAW 2292 (ALL)

Shiv Adarsh Mahavidhyalaya v. State of U. P.

2016-07-04

DEVENDRA KUMAR UPADHYAYA

body2016
JUDGMENT Devendra Kumar Upadhyaya, J. Since the facts and law pleaded in all these petitions, namely, Writ Petition Nos. 7324(MS) of 2015, 7789(MS) of 2015, 7791(MS) of 2015 and 7974(MS) of 2015 and the relief claimed therein are the same, with the consent of learned counsel for the parties, these petitions are being decided by the following common judgment and order. 2. For convenience, the Writ petition No.7324(MS) of 2015 shall be treated to be the leading petition and the facts pleaded in the said case will be referred to in this judgment. 3. Heard Sri Sidharth Dhaon, learned counsel for the petitioner, learned Standing Counsel for the State, Sri Madhur Kant Srivastava, learned counsel for Bundelkhand University, Jhansi and Sri Sudeep Seth, learned counsel appearing for Dr. B.R. Ambedkar University, Agra and perused the record. 4. The bone of contention in these proceedings as culled out from perusal of the pleadings of the respective parties is as to whether the students who have been admitted by the petitioners-institutions to pursue their B.Ed. Course in the Academic Session 2014-2015 can be permitted to be subjected to final examinations to be conducted by the affiliating University, namely, Dr. B.R. Ambedkar University, Agra, in the background of the fact that students of the petitioners-institutions have been admitted not on the basis of the councelling conducted for the said purpose by the Nodel University i.e. Bundelkhand University, Jhansi but they have been admitted by the institutions on their own. 5. Primary submission made by the learned counsel appearing for the petitioners-institutions in all these cases is that the students admitted by the petitioners-institutions are entitled to take final examination to be conducted by the affiliating University for the reason that these students were admitted after large number of seats remained vacant in the institutions even after the second counselling conducted by the Nodal University and further that these students have been admitted on the basis of merit from amongst the students who had qualified the entrance examination conducted by the Nodal University, though, they were not allotted even after completion of the second counselling. It has further been averred by the learned counsel for the petitioners that these institutions have admitted the students for imparting education in B.Ed. It has further been averred by the learned counsel for the petitioners that these institutions have admitted the students for imparting education in B.Ed. Course only against the seats which were vacant even after conclusion of the second counselling acting bonafide for the reason that no Government Order was issued for the Academic Session 2014-15 on the lines of the earlier Government Order dated 06.09.2013 which permitted filling up the vacancies in terms of the judgment and order dated 22.07.2011, passed by the Hon'ble Supreme Court in the case of Colleges of Professional Education and others Vs. State of U.P. and others, reported in (2013) 2 SCC, 721 by providing selected candidates on the wait list pool. 6. Per contra, learned counsel appearing for the respondents in unison have opposed the prayer made in these petitions and have submitted that any direction, if issued, as is being prayed for by the petitioners, will run contrary to the judgment passed by the Hon'ble Supreme Court in case of College of Professional Education and others (Supra) and the orders passed therein on various Interlocutory Applications. 7. The facts of the case as pleaded in these petitions are that the petitioners-institutions are duly recognized and approved by the National Council for Teachers Education (NCTE) with their respective capacity for specified number of seats for imparting education leading to award of B.Ed. Degree. Petitioners-institutions are also affiliated with Dr. B.R. Ambedkar University, Agra for the B.Ed. Course. 8. For holding joint entrance examination/combined entrance examination for admitting students to B.Ed. Course for the academic session 2014-15, the State Government by means of Government Order dated 30.01.2014 nominated Bundelkhand University, Jhansi as a Nodal University and advertisement was accordingly published on 01.02.2014 by Bundelkhand University in respect of joint entrance examination. The schedule as advertised, vide advertisement dated 01.02.2014 was in conformity with the schedule framed by Hon'ble Supreme Court in para-4 of its judgment rendered in the case of College of Professional Education and others (supra). However, before the entrance examination as per the declared schedule could be held, both, the State Government and the Bundelkhand University preferred Interlocutory Applications in Civil Appeal No. 5914 of 2011 (College of Professional Education Vs. State of U.P. and others) with the prayer to permit them to reschedule the joint entrance examination. However, before the entrance examination as per the declared schedule could be held, both, the State Government and the Bundelkhand University preferred Interlocutory Applications in Civil Appeal No. 5914 of 2011 (College of Professional Education Vs. State of U.P. and others) with the prayer to permit them to reschedule the joint entrance examination. Both the Interlocutory Applications were disposed of by Hon'ble Supreme Court by means of order dated 07.05.2014 rescheduling the dates in respect of the admission of B.Ed. Course for the academic session 2014-15 and accordingly entrance examination was held on 20.05.2014, result thereof was declared on 04.06.2014. As per the said order dated 07.05.2014, passed by the Hon'ble Supreme Court, counselling was scheduled from 07.06.2014 to 02.07.2014. Accordingly, a notification was issued by the Nodal University mentioning therein that off-line counselling shall take place from 07.06.2014 to 15.06.2014 and on-line counselling shall take place between 16.06.2014 to 02.07.2014. In terms of the said schedule of counselling, the counselling took place and out of 2,14,103 candidates who had appeared in the entrance examination, number of candidates called for counselling was 1,70,000, out of this number only 74,774 appeared in the counselling and 66,320/- candidates were allotted respective colleges for taking admission. In the first round of the counselling, the petitioners-institutions were allotted a very few candidates, such as, in respect of Shiv Adarsh Mahavidhyalaya (petitioner in Writ Petition No. 7324 (MS) of 2015) only four candidates were allotted. 9. It appears that since large number of vacancies (about more then 70,000 in number) remained vacant after the first counselling, an Interlocutory Application was filed by Bundelkhand University before the Hon'ble Supreme Court in Civil Appeal No. 5914 of 2011 with the prayer to permit the University to hold second counselling. The said Interlocutory Application was, however, rejected by the Hon'ble Supreme Court by means of order dated 13.08.2014. The State Government also moved another Interlocutory Application (I.A. No.115 of 2014 in Civil Appeal No. 5914 of 2011) before Hon'ble Supreme Court with the prayer to allow filling up the vacant seats for the academic session 2014-15 on suggested dates of 6th, 7th and 8th September, 2014 or any other subsequent dates. The said Interlocutory Application filed by the State was decided by the Hon'ble Supreme Court on 26.09.2014 and second counselling was permitted to be held between 07.10.2014 to 10.10.2014. The said Interlocutory Application filed by the State was decided by the Hon'ble Supreme Court on 26.09.2014 and second counselling was permitted to be held between 07.10.2014 to 10.10.2014. It was also directed that final examination be conducted by 30.10.2015. Accordingly, the Nodal University conducted the second counselling and certain number of candidates were allotted to the petitioners-Institutions in this counselling, however, even after allotment of candidates in the second counselling, large number of seats remained vacant, for example, in the first counselling in the case of Shiv Adarsh Mahavidhyalaya, 4 students were allotted and in the second counselling 41 students were further allotted making the total strength allotted to this institution 45, thus, 55 seats still remained vacant in the academic session 2014-15. 10. It has been averred by the learned counsel for the petitioners that for the academic session 2013-14, the State Government had issued a Government Order on 06.09.2013 directing therein that requisite steps be taken to form a pool of such students who were left out of the counselling and accordingly vacant seats be filled by such students. 11. Submission on behalf of the petitioners is that since no Government Order on the lines of the Government Order dated 06.09.2013 was issued and large number of seats remained vacant for the academic sessions 2014-15 even after the second counselling, the petitioners-institutions took admission on the remaining seats of B.Ed. Course on the basis of merit from amongst the students who had qualified in the entrance examination held by the Nodal University. 12. What is noticeable, however, is that the petitioners-institutions filled up the remaining seats not through counselling conducted by the Nodal University but on their own, may be, from amongst the students/candidates who had appeared in the joint entrance examination conducted by the Nodal University. 13. In the aforesaid background facts, submission of learned counsel appearing for the petitioners-institutions is that it is not that the students admitted on the remaining seats are not qualified or were not subjected to any screening for the reason that they had all appeared in the entrance examination conducted by the Nodal University, hence, they are bonafide students and act of admission of these students by the petitioners-institutions is also bonafide which was necessitated on account of the fact that the large number of seats remained vacant even after the second counselling. Thus, it would be appropriate to direct the affiliating University to allow these students to take examinations to be conducted by the University. 14. On overall consideration of the facts and various judgments and orders passed by the Hon'ble Supreme Court as well as by this Court, I am not persuaded to agree with the submission and prayer made by the learned counsel appearing for the petitioners-institutions. 15. Hon'ble Supreme Court in the case of College of Professional Education and others (supra) has already fixed a schedule of holding entrance examination, making admission and final examinations by the affiliating University. The said schedule may be altered only by Hon'ble Supreme Court in an appropriate proceedings. 16. This Court in the similar set of facts, by means of its judgment and order dated 17.10.2014, passed in Writ Petition No. 6761(MS) of 2014, Dau Dayal Mahila (P.G.) College Vs. State of U.P. and others has refused the relief prayed therein which is akin to the prayer made in these petitions by observing that in view of specific direction of Hon'ble Supreme Court, this Court is unable to grant any relief. Similarly, yet in another judgment dated 11.12.2014, passed by this Court in Writ Petition No. 7734(MS) of 2014, Vidyarthi P.G. College, Jadgishpur Bardiha Vs. State of U.P. and others, it has been observed that considering the fact that Hon'ble Supreme Court for B.Ed. Course has laid down a particular schedule, this Court is unable to issue direction that students be permitted to be admitted in the colleges against the vacant seats. 17. It is also noticeable that this Court in an elaborate judgment rendered on 20.07.2015 in Writ Petition No. 3708(MS) of 2015, Dau Dayal Mahila (P.G.) College Vs. State of U.P. and others has negatived the contention that any direction can be issued to the State Government requiring the State Universities to accept the admission made by its colleges against the vacant seats for academic session 2015-2016. Learned Single Judge in Writ Petition No. (MS) of 2015 relied upon the Full Bench Judgment in the case of Tuples Educational Societies Vs. State of U.P. and another, reported in 2008(26) LCD 687 and has held that the admission to private unaided colleges imparting education for B.Ed. Learned Single Judge in Writ Petition No. (MS) of 2015 relied upon the Full Bench Judgment in the case of Tuples Educational Societies Vs. State of U.P. and another, reported in 2008(26) LCD 687 and has held that the admission to private unaided colleges imparting education for B.Ed. Course recognized by NCTE and affiliated to a University cannot be made by any method other than by holding the common entrance test either by the State Universities or by all the Colleges of the State coming together as provided in P.A. Inamdar's case, (2005) 6 SCC 537 . It has categorically been held by this Court in its judgment dated 20.07.2015 in Writ Petition No. 3708 (MS) of 2015 that it is impermissible to permit individual institutions to fill up their vacant seats on their own on the basis of the advertisement issued by them individually. In its ultimate analysis this Court in its judgment dated 20.07.2015 has held as under: - "The question is even if after adopting the procedure prescribed in the College of Professional Education case (supra) and the Order, 2015, the seats still remain vacant and neither the State nor the University is under an obligation to provide students to the petitioner-institution whether it should not be allowed to fill up the remaining seats on its own by adhering to the triple test laid down in P.A. Inamdar's case (supra). In view of the Full Bench decision referred herein above and the dictum of the Supreme Court in College of Professional Education (supra) as well as the subsequent decisions in Maa Vaishno Devi Mahila Mahavidyalaya case (supra), all of which are in respect to B.Ed. course, it is not possible for this Court to answer in favour of the petitioner, therefore, the answer has to be in the negative. A perusal of the dictum of the Supreme Court in College of Professional Education case shows that the Supreme Court had approved a time schedule for admission based on C.E.T. and counseling, there is nothing therein to suggest that educational institutions could fill up the seats individually on their own. A perusal of the dictum of the Supreme Court in College of Professional Education case shows that the Supreme Court had approved a time schedule for admission based on C.E.T. and counseling, there is nothing therein to suggest that educational institutions could fill up the seats individually on their own. In Maa Vaishno Devi Mahila Mahavidyalaya's case (supra) the time schedule/scheme relating to admission as laid down in College of Professional Education case was reiterated and reaffirmed, in addition thereto, a time schedule was laid down regarding affiliation and recognition, all the authorities were directed to strictly adhere to the time schedule referred therein, failing which, they were held liable for proceedings under the Contempt of Court's Act even departmental disciplinary action in accordance with law. The Order, 2015 also only permits filling up the vacant seats on the basis of C.E.T., counseling and wait listed pool. It does not permit individual institutions to make admissions on their own. For the aforesaid reasons the decisions relied by Sri Prashant Chandra are of no help to the petitioner." 18. I may also refer to the observations made by Hon'ble Supreme Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of U.P. And others, reported in (2013) 2 SCC 617 wherein it has categorically been observed that the schedule stated in the case of College of Professional Education (supra) in relation to admission, recognition and commencement of courses shall be strictly adhered to by all concerned including NCTC, State Government and the University/Examining Body. It has further been observed by Hon'ble Supreme Court that in the event of disobedience of the schedule, the person concerned shall render himself liable for proceedings under the Contempt of Courts Act, 1971. The relevant paragraphs 91.1 and 91.2 made by Hon'ble Suprme Court in the said case of Maa Vaishno Devi Mahila Mahaidyalaya (supra) are quoted below: - "91.1- The Schedule stated in College of Professional Deucation and in this judgment in relation to admission, recognition, affiliation and commencement of courses shall be strictly adhered to by all concerned including NCTE, the State Government and the University/examining body. 91.2- In the event of disobedience of schedule and/or any attempt to overreach or circumvent the judgment of this Court and the directions contained herein, the person concerned shall render himself or herself liable for proceedings under the Contempt of Courts Act, 1971 and even for departmental disciplinary action in accordance with law." 19. In view of discussions made hereinabove, in the result, petitions fail and are hereby dismissed. 20. However, there will be no order as to costs.