Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 279 (JK)

Malik Mudasar Nissar v. State of J&K

2016-05-19

ALI MOHAMMAD MAGREY

body2016
JUDGMENT : 1. The petitioners had been admitted to two years’ M. Tech Course in National Institute of Technology, Srinagar (NIT), in 2008 after having been selected pursuant to the Entrance Examination conducted by the Institute While the petitioners were pursuing the aforesaid course, they were selected and appointed as Junior Engineers (Civil) Grade a vide Government order dated 17.9.2009. Though not stated in the petition, they seem to have abandoned the course and joined the service. They assert that they verbally intimated their employer that they intended to complete their M. Tech Course and sought permission from NIT for resuming and rejoining the course. It is alleged that the NIT did not initiate any process on their request. However, they continued to persuade the NIT and that the NIT ultimately passed Resolution 07/19 which has the effect of excluding them from consideration for readmission to the course. 2. It appears that the proposal relating to re-registration of some M. Tech. students in M. Tech programs of Civil Engineering was placed before the Senate of the NIT in its 15th Meeting held on 25.08.2014. These students fell under two categories: first, those who had to withdraw from admissions for medical reasons; and second, those who had got jobs in the midst of the M. Tech course. The Senate disallowed the proposal but, at the same time, advised to frame regulation for discontinuation and re-admission through a sub-committee headed by Dean, Academic Affairs. The sub-committee formulated its recommendations which were placed before the Senate in its 19th Meeting held on 27.05.2015. The Senate approved the recommendations made by the sub-committee with a rider that in case of the candidates falling in the second category, i.e., the students who get jobs midway during the 1\1. Tech course, the maximum permissible gap oetween withdrawal of admission and re-registration shall be 03 years. 3. The petitioners have challenged the aforesaid Resolution No.07/19 of the Senate of the NIT formulating and framing the Regulation to govern withdrawal of admission to M. Tech. Degree course and re-registration thereto, and have prayed for the following reliefs:— (i) By issuance of writ of certiorari, the resolution No.07/19 insofar as and in the event it denies re-registration, re-admission and completion of M. Tech. Degree course and re-registration thereto, and have prayed for the following reliefs:— (i) By issuance of writ of certiorari, the resolution No.07/19 insofar as and in the event it denies re-registration, re-admission and completion of M. Tech. Course to the petitioners, may be quashed; (ii) By issuance of writ of mandamus, the respondents may be commanded to re-register and re-admit the petitioners to the M. Tech Course undertaken by them pursuant to their selection in the year 2008 and allow them to complete the same in tune and in line with the decision taken by the respondent notwithstanding the rider of maximum permissible gap of three years between withdrawal of admission and re-registration as contained in resolution no.07/19; (iii) By issuance of writ of mandamus, respondent No.1 and 2 may be directed to formal relieve the petitioners on their re-registration and re-admission for M. Tech course so as to complete the same. 4. The respondents have filed their reply, wherein it is stated that the petitioners were admitted in the Institute in Structural Engineering Branch (Civil Engineering) in 2008 under Enrolment No.SE/3/2008 and that second semester was awaited and that the petitioners completed one semester. Meanwhile, they were appointed as Junior Engineers in Public Works Department. After their appointment, the petitioners applied for release and return of their original certificates. It is submitted that the petitioners’ admission to M. Tech Course, accordingly, got cancelled. According to the respondents, the petitioners approached the Institute in 2013 for consideration of completion of their left over course. Since the Statutes did not provide for any such option, the matter was put up before the Senate. The Senate did not allow the proposal. However, it was advised that a sub-committee headed by Dean Academic Affairs should frame regulation tor discontinuation and re-admission. The sub-committee made its recommendations to the following effect:— (i) That the candidates pursuing M. Tech Programme may be allowed to re-register on Medical grounds. The candidate will, however, have to complete the degree within stipulated time excluding the period of absence due to medical reasons certified by prescribed Medical Authority as per rules; (ii) Students, who get job midway during M. Tech course, may be allowed to withdraw admission and later on re-registered for completion of their M. Tech degree. However, the candidates should have completed at least one semester. However, the candidates should have completed at least one semester. The candidates will, however, have to complete the degree within stipulated time excluding the period of absence. The candidates will be allowed to be re-registered only on production of following documents; a. Sponsorship certificate from his employer; b. NOC from employer; c. Leave from employer for completion of course; d. All other statutory requirements for registration etc. The Senate vide its Resolution no.07119 approved the aforesaid recommendations with following amendments:— “The candidate shall seek prior approval for withdrawal and in case of the second category candidates the maximum permissible gap between withdrawal of admission and re-registration shall be 3 years.” The respondents in their reply, accordingly, contested the claim of the petitioners on the ground that there has been a gap of more than three years between the dates the petitioners had abandoned the course and the date they sought re-admission thereto and that they had taken back their original certificates. 5. It may be mentioned here that this case was initially heard on 15.03.2016 and Mr. Makroo, learned ASGI, was directed to produce the records by 17.03.2016. However, the Registry of the Court on 17.03.2016 mistakenly listed it before a Coordinate Bench of the Court. Thereafter, it was again listed before this Bench on 07.04.2016. On that date this Court ordered it to be put up on 12.04.2016 with direction to Mr. Makroo to keep records available. The matter was ultimately finally heard on 22.04.2016 and judgment was reserved. 6. While preparing the judgment and perusing the record of the writ petition, it transpired that on 11.04.2016, the petitioners had presented an application, MP No.1/20016, before the Registry of the Court seeking permission to file a supplementary affidavit. Its copy had duly been acknowledged on behalf of Mr. S.A. Makroo, ASGI, on 07.04.2016. 7. In the supplementary affidavit it is stated that one Mr. Azeem Bashir Sio Bashir Ahmd Shah Rio Amnoo, Kulgam, Kashmir, was also selected and admitted to M. Tech Course with the petitioners in the year 2008 and, while pursuing the said course, he was selected as Section Engineer in Northern Railways (R&B), Jammu, Government of India, in 2010 when he was pursuing his 4th semester. Azeem Bashir Sio Bashir Ahmd Shah Rio Amnoo, Kulgam, Kashmir, was also selected and admitted to M. Tech Course with the petitioners in the year 2008 and, while pursuing the said course, he was selected as Section Engineer in Northern Railways (R&B), Jammu, Government of India, in 2010 when he was pursuing his 4th semester. It is further averred therein that the respondents allowed the said candidate to be re-admitted and re-registered in the month of March, 2014 for completing the left over M. Tech course. Therefore, the action of the respondents, insofar as they denied identical treatment to the petitioners, was discriminatory’ and, therefore, violative of Article 14 of the Constitution, entitling the petitioners to identical treatment. The said information is said to have been gathered after filing of reply to the writ petition by the respondents. 8. The aforesaid supplementary affidavit was, in fact, referred to and relied upon by the learned counsel for the petitioners during the course of his arguments on 22.04.2016. However, having minutely gone through the records, it transpired that the said application, MP No.01/2016 bad not been taken on record as it was never listed before the Court, though it was very much placed on record of the case file. Since the averment made in the application I the supplementary affidavit and the information contained therein was thought to be vital to the determination of the grievance of the petitioners, it was allowed by order dated 03.05.2016 and the supplementary affidavit was taken on record. Mr. Makroo, learned ASGI, was given a week’s time to file his response on affidavit precisely stating therein if it was a fact that Mr. Azeem Bashir S/o Bashir Ahmad Shah Rio Amnoo, Kulgam, Kashmir, was readmitted and re-registered to the course and, if so, why was not a similar treatment given to the petitioners herein. 9. In response to the supplementary affidavit and order dated 03.05.2016, the respondents filed their reply. It is stated therein that the case of Mr. Azeem Bashir is totally different and has no relevance with the case of the petitioners as he left the Institute after completing three semesters and took his original documents/certificates back once he was appointed and that he informed the Institute about his appointment. It is stated therein that the case of Mr. Azeem Bashir is totally different and has no relevance with the case of the petitioners as he left the Institute after completing three semesters and took his original documents/certificates back once he was appointed and that he informed the Institute about his appointment. Insofar as the petitioners are concerned, it is stated that petitioner Malik Mudasir appeared in major examination held in February 2009 and after completing one semester, he took away his original documents for verification in the concerned department. While taking his original documents, he furnished affidavit dated 31.07.2009 stating therein that his admission may be cancelled if he failed to return within a period of one month. Same is stated to be the position vis-a-vis the other two petitioners. 10. It is further stated therein that in terms of the NIT Statutes, the maximum period allotted for completion of M. Tech Degree course is twice the prescribed duration of the course. The petitioners having taken the admissions in 2008, it could at best be completed by 2012. And if they are allowed to be re-registered at this stage, their course period would stretch to 10 years which win frustrate the object of the Statutes and disturb the academic calendar. 11. I have thoroughly considered the matter. 12. Ordinarily, the petitioners could not claim violation or infringement of any of their lights, since they had voluntarily withdrawn from the course and their contention that they approached the Institute in 2011 for re-admission was not supported by any document. However, the fact that the respondents in March 2014 re-registered one of the students, who had been admitted to a similar course with the petitioners in 2008 and had withdrawn therefrom midway on being appointed in Railways, has furnished a ground to the petitioners to clamour discrimination and thus has supplied an impetus to their case. 13. The respondents m their response-affidavit filed to the supplementary affidavit of the petitioners have resisted the plea of discrimination raised on this count and have sought to differentiate between the two on several factors and grounds. However, most of such factors and grounds are common between the two cases, For instance, both Mr. Azeem Bashir and the petitioners herein, having been admitted to their respective PO course. However, most of such factors and grounds are common between the two cases, For instance, both Mr. Azeem Bashir and the petitioners herein, having been admitted to their respective PO course. had left the same midway, without seeking any prior permission; both informed the Institute about the fact of they having been appointed to government service when they required the original certificates in their respective departments; and both took back the original certificates from the Institute for being produced before their respective departments. 14. However, a distinction is sought to be made to differentiate the petitioners from the case of Mr. Azeem Bashir on two grounds: first, that the petitioner Malik Mudasir Nisar, while taking tack his original certificates, filed an affidavit dated 31.07.2009 stating therein that his admission may be cancelled if he failed to return within a period of one month and that same was the position of other two petitioners; and second, that in terms of the Statutes any PG programme has to be completed in not more than the period which is twice the prescribed duration of the course and if the petitioners are allowed re-admission at this stage, it would stretch their period of course to almost ten years which would be antithetic to the Statutes. 15. So far as the aforesaid first ground is concerned, it is not the case of the respondents that pursuant to the affidavit furnished by the first petitioner, his admission was, in fact, cancelled. There is no doubt that the copy’ of the affidavit of petitioner no. 1 placed with the reply-affidavit speaks so, but there is nothing automatic and the statement made in the affidavit would not come into effect unless it was acted upon by the respondents. It was open to the respondents to have acted upon the affidavit so filed by the said petitioner and passed an order in relation thereto, cancelling his admission. Nothing has been brought on record by the respondents to show that the said affidavit furnished by the said petitioner was, in fact, acted upon and an order to that effect was passed. Mere furnishing of such affidavit by the petitioner would not amount to cancellation of his admission, for, the statement made therein by the petitioner would not amount to an order passed by the respondents. Therefore, this ground is not available to the respondents. Mere furnishing of such affidavit by the petitioner would not amount to cancellation of his admission, for, the statement made therein by the petitioner would not amount to an order passed by the respondents. Therefore, this ground is not available to the respondents. of course, the situation would have been different had they passed an order in relation thereto, but that has not been so. 16. Now, let me come to the second ground that the Statutes provide that any PG programme has to be completed in not more than the period which is twice the prescribed d ration of the course and if the petitioners are allowed re-admission at this stage, it would stretch their period of course to almost ten years which would be antithetic to the Statutes. In this regard, it is important to note that the petitioners contend that the candidate Mr. Azeem Bashir was granted re-admission in 2014. This fact is not denied b the respondents. He had taken his admission in 2008. By 2014, six years had already passed by since the date he had been admitted to the course. Therefore, the condition of four years as put forth by the respondent was not fulfilled in his case, too; and in fact his course’ period g t stretched to beyond six years. Furthermore, he had, admittedly, withdrawn from the admission in 2009 and by March 2014 five years or ore than four years’ period had already passed by. Yet the respondents re-admitted him. The condition of time gap of three years between the date of withdrawal and date of readmission, as contained in the impugned Resolution 07/19, is also not fulfilled in his case. 17. If above be the factual scenario, as it really is, the respondents cannot be heard to say what they actually are putting forth. This otherwise sounds illogical, for, the Senate in its Resolution 07/19 has approved the recommendation made by the Committee appointed by it for framing the regulation. It may be mentioned here that me Committee so appointed had recommended, inter alia, that the candidates will, however, have to complete the degree within stipulated time excluding the period of absence. Thus, the period of absence from the course has to be excluded from computation of the course period. Apart from that, if a candidate has passed three semesters, like the candidate named Mr. Thus, the period of absence from the course has to be excluded from computation of the course period. Apart from that, if a candidate has passed three semesters, like the candidate named Mr. Azeem Bashir, which means he would have already attended the course for a year and a half, and is re-admitted after three years - the time gap allowed by the Senate in terms of its Resolution in question - such a candidate would naturally start his fourth semester four and a half years after he had taken the admission and would complete it, if everything goes well, after five years. Therefore, the contention put forth on behalf of the respondents that if petitioners are accorded re-admission at this stage, that would stretch the course period in their case beyond four years to ten years is illogical. The fact of the matter is that, minus the period of absence, the course period would still remain the same as may have been “provided by the State. This factor seems to have been considered-by the Expert Body/Senate, Otherwise they would not have allowed three years’ period a permissible gap between date of withdrawal of admission and re-admission. Had that not been so, these three plus the two years normal course period would again come to more than five years. Then the resolution 07/19 would be violative of the Statute pressed into service by the respondents. 18. It may be observed here that on their own showing, the petitioners had approached the Institute for their re-admission in the year 2013, but they were refused re-admission, not on the ground that they had taken back their certificates but, according to the respondents, because there was no Statute framed to that effect. The Resolution 07119 was finally approved/passed by the Senate in its meeting held on 27.05.2015. The other candidate, Mr. Azeem Bashir also approached the Institute around the same time as the petitioners and, in any case, before passing of Resolution dated 27.05.201 and he was granted re-admission. The respondents have thus axiomatically acted arbitrarily and discriminated against the petitioners. Their action thus is hit by the mandate of Article 14 of the Constitution. 19. Now, coming to the prayer of the petitioners, in view of the above, I think that the Court does not need to go into the legality or otherwise of the Resolution 07/19. The respondents have thus axiomatically acted arbitrarily and discriminated against the petitioners. Their action thus is hit by the mandate of Article 14 of the Constitution. 19. Now, coming to the prayer of the petitioners, in view of the above, I think that the Court does not need to go into the legality or otherwise of the Resolution 07/19. Otherwise also, I do not think that the Senate of the Institute has exceeded its jurisdiction or done anything which was not within its jurisdiction or competence. It may be mentioned here that the NI has been established under the National Institutes of Technology, Science Education and Research Act, 2007 as amended vide the National Institutes of Technology (Amendment) Act, 2012 and the National Institutes of Technology, Science Education and Research (Amendment) Act, 2014. Section 27 of the Act provides that subject to the provisions of e Act and the Statutes, the ordinances of every Institute may provide for all or any of the matters mentioned therein’ which include (a) the admission of the students to the Institute; (b) the courses of study to be laid down for all degrees and diplomas of the Institute; ( c) the conditions under which students shall be admitted to the degree or diploma courses and to the examinations of the Institute, and shall be eligible for degrees and diploma; etc. The term ‘admission’ used in the provision of the would, naturally, include ‘readmission’. Then Section 28 of the Act, inter alia, provides that ordinances shall be made by the Senate. That being the position of the law, the Senate has the power to’ provide for all or any of the matters concerning the admission’ and the conditions under which students can be admitted to any degree or diploma courses. In that view of the matter, Resolution 07/19 passed by the Senate cannot be said to be illegal in any manner of thought. So far as the contention that the said Resolution altered what had been recommended by the Committee constituted by the Senate, it hardly needs to be mentioned that the recommendations of the Committee had no legal sanctity; they were only recommendations. Such recommendations are not enforceable in law. The challenge to the Resolution 07/19 is, therefore, not sustainable in law. 20. Now comes the crucial Vali of the matter. Such recommendations are not enforceable in law. The challenge to the Resolution 07/19 is, therefore, not sustainable in law. 20. Now comes the crucial Vali of the matter. The petitioners have not placed anything on record to show that they had made any representation to the Government seeking permission to complete their M. Tech course and for relieving them to attend such course. Furthermore, it is not shown by the learned counsel for the petitioners that the Government was under any legal obligation to grant such permission to the petitioners and that they had refused or failed to do so despite representation made in that behalf by the petitioners, which would entitle them to a mandamus of the nature they have prayed for. Though the State respondents have not resisted the prayer made by the petitioners and they have also gone unrepresented at the hearing, yet it was incumbent upon the petitioners to prove their averments by producing cogent documents evidence in that regard. The prayer for mandamus In that regard, there ore, cannot be allowed. 21. In light of the above, it is held that respondents have subjected the petitioners to discrimination in so far as they have refused them re-admission and granted re-admission to another candidate named Mr. Azeem Bashir who was similarly situated with the petitioners. 22. The writ petition is, therefore, partly allowed to the aforesaid extent and. it is provided that in the event, the petitioners, on their request, are: permitted by the government within three months from today to pursue and complete the M. Tech course and are relieved for that purpose by the Government and/or any competent authority, the respondent-Institute shall consider their re-admission and re-registration on tile analogy of Mr. Azeem Bashir and allow them to complete the M. Tech course, of course, within the time period permitted by the Statutes, minus the absence period. 23. Records produced are returned to Mr. Makroo, learned ASGI. 24. This also disposes of the connected MP. 25. No order as to costs. Writ Petition Partly allowed.