Nalanda College of Education v. H. N. B. Garhwal University
2019-03-26
SHARAD KUMAR SHARMA
body2019
DigiLaw.ai
JUDGMENT : Sharad Kumar Sharma, J. 1. The peculiar situation which has arisen for consideration by this Court is with regards to the interpretation of clause-6 of the office memorandum issued by the University on 09.10.2015, which reads as under: ^^6- ;fn foKkiu nsus ds ckn Hkh ,uŒvkjŒvkbZŒ dksVs ds Nk= miyC/k ugha gks ikrs gSa] rks mRrjk[k.M 'kklu ds 'kklukns'k la[;k 17@24¼6½@2008 fnukad 11 twu 2008 ds vuqlkj vU; Nk=ksa dks laLFkku Áos'k ns ldrs gSaA ijUrq ,slh fLFkfr esa mUgsa fo'ofo|ky; ls iwoZ Lohd`fr ysuh gksxh] ftlds fy, muds }kjk fn;s x;s mijksDr foKkiu o vU; Á;klksa dk Áek.k i= layXu djuk gksxkA** 2. According to the arguments as extended by Mr. Paresh Tripathi, learned counsel for respondent nos. 1 to 3, is that as per clause-6 of the said office memorandum, it was a condition precedent that the self-aided recognized colleges, i.e. like the petitioners, prior to granting admission against vacant seats available for NRI quota they have to seek a prior permission from the university for permitting the students to take their B.Ed. examination under the NRI quota seats. It is not in dispute that as far as the students who were permitted by respective institutions to take their B.Ed. examination by the institutes of the petitioners they had not taken any prior permission as contemplated by clause-6 of office memorandum dated 09.10.2015. 3. The argument as extended by the learned counsel for the petitioners Mr. Subhash Upadhyaya is that clause-6 of the office memorandum dated 09.10.2015 is not to be read in isolation it has to be read with the provisions contained under the Government Order No. 17/XXIV(6)/2008 dated 11.06.2008, which too according to the petitioners in its clause-6 only provided that whenever the candidates for the NRI seats are not available it could be allotted to other students, subject to complying the procedure and subject to the payment of fees as applicable to the NRI quota. Clause-6 of the Government Order is quoted hereunder: ^^6- ,uŒvkjŒvkbZŒ miyC/k u gksus ij ,uŒvkjŒvkbZŒ dh lhVksa ij bPNqd vU; Nk=ksa dks Áos'k fn;k tk;sxk o muls ,uŒvkjŒvkbZŒ dk gh 'kqYd fy;k tk;sxkA** 4.
Clause-6 of the Government Order is quoted hereunder: ^^6- ,uŒvkjŒvkbZŒ miyC/k u gksus ij ,uŒvkjŒvkbZŒ dh lhVksa ij bPNqd vU; Nk=ksa dks Áos'k fn;k tk;sxk o muls ,uŒvkjŒvkbZŒ dk gh 'kqYd fy;k tk;sxkA** 4. The argument of the learned counsel for the petitioners is that in case if clause-6 of the office memorandum dated 09.10.2018 is read with clause-6 the Government Order dated 11.06.2008, the prior permission may not be so fatal for not permitting the students to take their B.Ed examination, because the condition of prior permission is not contemplated under the Government Order dated 11.06.2008. 5. Another argument which has been extended by the learned counsel for the petitioners is that after granting them admission in accordance with the process as laid down by its various circulars and directives of the university the students have perused their classes and just before a couple of weeks before the commencement of their examination the impugned order dated 27.02.2017 was passed by the university-respondent no. 1, whereby, the students who had already taken their classes after grant of admission and also by taking university in confidence by various correspondences on record were restrained from taking their examination in the absence of their being a prior permission being taken by the colleges for granting admission to the students as against the NRI quota in furtherance of clause-6 of the office memorandum dated 19.10.2015. The contention of the petitioners is further to the effect that the very fact that the university thereafter through various correspondences through its Registrar had accepted the fact of students being permitted by the colleges had rather processed their examination forms for exams, taking the admission fee by the students itself and as such the conditions enshrined by the circular issued by the university is stood tacitly complied with and would amount to be a prior permission from the university as spirited by the memorandum dated 09.10.2015. 6.
6. This argument as extended by the learned counsel for the petitioners may not be interpreted in the manner in which it has been extended by the learned counsel for the petitioners, the reason being that when the university affiliates the institutions for the grant of certain certificates, degrees or courses or permits them to take classes for the various disciplines undoubtedly the university exercises control over the examination and the grant of certificate of respective discipline and on its recognition the institutions are subject to compliance of directions of the university to be issued from time to time, and thus the institutions which are affiliated to the university they are bound by the circulars issued by the university from time to time and so would the same principle apply as far as the circular dated 09.10.2015 is concerned and its applicability in its entirety on the self financed recognized institution like the petitioners. 7. The argument of the petitioners’ counsel is not acceptable because as per clause-6 even if the Government Order dated 11.06.2008, did not contain a condition of taking a prior permission and which was added over in clause-6 of the office memorandum dated 09.10.2015, that would have no effect as far as the condition of prior permission is concerned, which was required to be taken by the institution for the reason being that the Government Order dated 11.06.2008 only provided as to what would be the norms, modalities regards the quantum of fees payable by the students, who are being admitted as against the NRI seats, which remain unfilled. The said condition of Government order contained in clause-6 was for limited purpose touching the financial aspect, and had no relation with the condition of admission over left over seats of NRI quota, both the conditions had different purpose and object to be achieved. The petitioners while giving challenge to the impugned order dated 27.02.2017, were able to persuade the Court to pass an interim order, whereby, provisionally the students were permitted to take their examination. However, their results were made subject to the final decision of the writ petition. Consequently, in compliance of the interim order passed by this Court admittedly the students were permitted to take up their B.Ed. examination for the academic session 2016-2018. However, their results have not been declared. 8.
However, their results were made subject to the final decision of the writ petition. Consequently, in compliance of the interim order passed by this Court admittedly the students were permitted to take up their B.Ed. examination for the academic session 2016-2018. However, their results have not been declared. 8. After having heard the learned counsel for the parties and exclusively only considering the fact that it is the career and interest of the students which is at stake due to the procedural fault of the petitioners’ institution, this Court though in principle accepting the argument as extended by the learned counsel for the university to the effect that prior to granting permission for admission to these students the colleges were bound to take a prior permission from the university since being affiliated recognized colleges are obviously bound by the directives of the universities. Having not done so, it would render the admission itself to be bad, but in the precarious situation, which has arisen in this case, this Court is inclined to dispose of these writ petitions exclusively only considering the interest of students only, with the following directions: (i) The judgment being passed today directing the respondent-university to declare the result of the students, who were permitted to take their examination on the basis of the interim order, will not be quoted as a precedent in future for the affiliated colleges or the students. (ii) The condition contemplated in the office memorandum dated 09.10.2015 would be strictly abided by the colleges in future prior to granting admission against vacant NRI quota seats which remain unfilled, of course after due process. (iii) It is also argued by the learned counsel for the petitioners that in future they will not grant any admission as against the NRI quota seats, for the seats which remain unfilled except with the prior written permission from the university as contemplated by clause-6 of office memorandum dated 09.10.2015. 9. Subject to the aforesaid restrictions, as observed above, a writ of mandamus is issued directing the respondent-university to declare the result of the students who were already admitted and who had taken their examination in pursuance to the interim order passed by this Court for academic year 2016-2018. 10.
9. Subject to the aforesaid restrictions, as observed above, a writ of mandamus is issued directing the respondent-university to declare the result of the students who were already admitted and who had taken their examination in pursuance to the interim order passed by this Court for academic year 2016-2018. 10. As far as in some of the writ petitions there are students who had been unable to take up their some semester examination in a very peculiar situation which is prevailing in this present case, if they pertain to the some academic year, i.e. 2016-2018. In that eventuality, the university would permit them to take their remaining semester examination along with their semesters when it is being carried by the university. 11. Subject to the above observation, the writ petition stands disposed of. However, it is made clear that the bank guarantee which has been deposited by the petitioners/colleges in compliance of interim order that will remain intact with the university. 12. However, there would be no order as to cost.