Allahabad High Court
Pallavi Soni vs State Of U.P. Thru. Prin. Secy. Higher ... on 31 May, 2023
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:39153 [Reserved] [A.F.R.] Court No. - 3 Case :- WRIT - C No. - 23756 of 2021 Petitioner :- Pallavi Soni Respondent :- State Of U.P. Thru. Prin. Secy. Higher Education Lko.And Ors. Counsel for Petitioner :- A.Z. Siddiqui Counsel for Respondent :- C.S.C.,Atul Kumar Dwivedi Hon'ble Vivek Chaudhary,J.
1. Heard Sri A.Z. Siddiqui, learned counsel for petitioner, learned Standing Counsel for State and Sri Sudeep Seth, learned Senior Advocate assisted by Sri Atul Kumar Dwivedi, learned counsel for respondent University.
2. Petitioner who is a Ph.D. student of Fine Arts, studying in respondent University has approached this Court by the present writ petition for a mandamus claiming that respondent University is arbitrarily restraining her from completing her Ph.D. course in which she has already put in five years, on the ground that there is some irregularity in her admission.
3. Brief facts of the case are that Dr. Shakuntala Mishra National Rehabilitation University (For Differently Abled) Uttar Pradesh (hereinafter referred to as 'University') was incorporated by State Act No.1 of 2009. A notice was issued by the University for holding admission process for Ph.D through entrance examination on 25.08.2015. Petitioner applied for Ph.D. in Fine Arts and participated in the selection process. After the selection process, petitioner stood fifth in the merit list and since only four vacancies were available for Ph.D. in Fine Arts, therefore, she could not be selected. The Vice-Chancellor of the University meanwhile entertained applications for Ph.D. from NET/GATE/SLATE candidates. Petitioner who had cleared her UGC NET (thrice cleared NET) being qualified also applied and Vice-Chancellor approved her admission on due recommendation made by the selection committee finding her qualified. Petitioner got her admission in November, 2015 and continued her research work. No objection with regard to her admission was ever raised. It appears that there were certain allegations with regard to working of the then Vice-Chancellor of the University and, thus, he was removed. Petitioner after completion of five years in Ph.D. sought extension of one year for completing her work as prescribed by rules, however, University declined petitioner to continue with research work and for accepting her further fees. University in pursuant to Academic Council resolution dated 11.05.2018 constituted a three member committee on 15.03.2019 to look into the manner in which the erstwhile Vice-Chancellor had permitted admission in Ph.D. courses. On 30.05.2019 the committee submitted an interim report and it appears that on the basis of said report, petitioner and other candidates were required to submit a declaration and affidavit that they were selected through examination and interview. Since, petitioner could not file such an affidavit in the language required by the University, she is not being permitted to continue her research work. Hence, petitioner has filed present writ petition.
4. Learned counsel for petitioner submits that there is no mistake on part of petitioner and she was granted admission by the University authorities in accordance with rules. The admission was not objected to for five years and now when the petitioner is nearly on verge of completing her Ph.D. she is being unnecessarily restrained from completing the same. He places reliance upon the following cases:-
(i) Abha George and Ors vs. All India Institute of Medical Sciences (AIIMS) and Anr., [2022 SCC Online Del 366],
(ii) Javed Akhtar vs Jamia Hamdard [2006 SCC Online Del 1504],
(iii) Ashok Chand Singhvi v. University of Jodhpur and Ors. [(1989) 1 SCC 399] and
(iv) Rajendra Prasad Mathur v. Karnataka University and Anr. [AIR 1986 Supp. SCC 740]
5. Learned counsel for the University submits that as per Ph.D Ordinance of 2014 of the University, admission in Ph.D. course could only be available for four vacancies in Fine Arts after a written examination and interview. Petitioner stood fifth on merit but only four seats in Fine Arts were available, hence, she could not be granted admission in the said selection process. He further submits that Vice-Chancellor of the University has illegally granted admission to the petitioner in violation of rules and therefore, petitioner is now stopped from continuing the said Ph.D.
6. U.G.C. by notification dated 01.06.2009 has provided procedure for selection in M.Phil/Ph.D. Clause 9 and 10 of the same reads as:-
"9- i) leLr fo'ofo|ky;] ekfur fo'ofo|ky;] ,oa dkyst@jk"Vªh; egRo dh laLFkk,a ,e-fQy- ,oa 'kks/k Nk=ksa dk izos'k vius Lrj ij fo'ofo|ky;] ekfur fo'ofo|ky; ,oa dkyst@jk"Vªh; egRo dh laLFkkvksa }kjk vk;ksftr izos'k ijh{kk }kjk gksxkA tks yksx fo-v-vk-@lh-,l-vkbZ-vkj- ¼ts-vkj-,Q-½ ijh{kk] LysV@xsV mRRkh.kZ gSa ;k f'k{kd v/;;kfro`fRRk;ka /kkjd gSa vkSj ftUgksaus ,e-fQYk- dk;Zdze ih-,p-Mh- izos'k ijh{kk ds fy, mRRkh.kZ dj fy;k gS muds fy, fo'ofo|ky; vyx ls 'krksZa dk fu/kkZj.k dj ldrk gSA ;gh rjhdk ,e-fQy- dk;Zdze dh izos'k ijh{kk esa viuk;k tk ldrk gSA
ii) blds i'pkr~ Ldwy@foHkkx@laLFkk@fo'ofo|ky; tSlk ekeyk gks ,d lk{kkRdkj dk vk;kstu djsxkA
iii) lk{kkRdkj ds le; 'kks/k Nk=ksa ls vis{kk dh tkrh gS os vius 'kks/k :fp@{ks= ij fopkj&foe'kZ djsaA
iv) igys ls lqfuf'pr dh xbZ Nk=ksa dh la[;k ij gh Nk=ksa dks ,e-fQYk-@ih-,p-Mh- dk;Zdze esa izos'k fn;k tk ldsxkA 10- ih-,p-Mh- dk;Zdze esa izos'k ;k rks lh/ks ;k ,e-fQy- ek/;e ls gksxkA""
7. Learned counsel for respondent University claims that in furtherance of the said guidelines of U.G.C., Ph.D. Ordinance, 2014 is issued by the University. The said ordinance provides for a written examination as well as interview.
8. Learned counsel for the respondent University was asked to place the provision of law under which the said ordinance was issued by the University. He could not place any provision of law which empowers the University to issue an ordinance. As per State Act No.1 of 2009, the University possess power only to frame statute. Thus, on the face of it, the ordinance appears to be without jurisdiction. Even otherwise, the U.G.C. guidelines 9(i) provides that the University can provide for conditions for persons who have cleared C.S.I.R. examination(J.R.F.)/SLATE/GATE/M.Phil. separately from selection to be made through entrance examination. Therefore, it cannot be said that even by the said ordinance, the power of University given by paragraph 9(i) of U.G.C. guidelines is taken away. It is rather in furtherance of the said power that the Academic Council of the University in its 3rd meeting dated 03.10.2015 resolved as follows:-
"[k½ mijksDr ds vfrfjDr ;w-th-lh- ,oa lh-,l-vkbZ-vkj- ds ts-vkj-,Q@xsV@usV@LYksV@,e-fQy- /kkjd rFkk lsokjr~ vf/kdkjh ,oa [;kfryC/k fo'ks"kK] ftudk ih&,p-Mh- 'kks/k dk;Z fo'ofo|ky; ,oa lekt ds mUu;u rFkk uhfr&fu;kstu esa mi;ksxh gks] dks ih&,p-Mh- esa vfrfjDr lhV dk izkfo/kku dj lh/ks izos'k iznku djus gsrq dqyifr dks vf/kd`r fd, tkus dk ek0 fo|k ifj"kn~ }kjk fu.kZ; fy;k x;kA"
9. By the aforesaid resolution, Academic Council empowered Vice-Chancellor to create extra seats for Ph.D. and grant admission to persons who have cleared J.R.F./GATE/NET/SLATE/M.Phil. The said Academic Councils' resolution was duly acted upon and in furtherance thereof, Vice-Chancellor of the University exercising his powers granted admission to the petitioner in November, 2015. Therefore, submission of learned counsel for the University that the admission granted is in violation of U.G.C. guidelines or the ordinance of the University does not have any force. The Academic Council of the University duly empowered the Vice-Chancellor to grant admission by creating extra seats. The said resolution of the Academic Council holds good till date. Neither any authority of the University till date has objected to the said resolution nor the same is withdrawn as yet. Therefore, Vice-Chancellor was empowered under the said resolution and has granted admission to the petitioner by creating an extra seat in Ph.D. in Fine Arts as petitioner was fully qualified.
10. Learned counsel for respondent University has further drawn attention of the Court to Section 13.1 of the State Act No.1 of 2009 and claims that it is the Executive Council which possess all these powers with regard to admission etc. and neither the Academic Council nor the Vice-Chancellor has any such power.
11. The relevant sections of Act No.1 of 2009 with regard to powers of concerned authorities of the University reads:-
"13.1 The Executive Council shall be chief executive body of the University.
(2) The administration, management and control of the University and the income thereof shall be vested in the Executive Council which shall control and administer the property and funds of the University.
20. The Academic Council shall be the academic body of the University and Academic Council shall, subject to the provision of this Act and the statutes, have power of control and general regulation of and be responsible for, the maintenance of standards of instructions, education and examination of the University and shall exercise such other powers and perform such other functions as may be conferred upon or assigned to, it by this Act or the statutes, It shall have the right to advise the Executive Council on all academic matters.
22. Subject to the provisions of this Act or the statues, the Academic Council shall in addition to all other powers vested in it, have the following powers, namely:-
(i) in report on any matter referred to or delegated to it by the General Council or the Executive Council;
(ii) to make recommendations to the Executive Council with, regard to the creation, abolition or classification of teaching posts in the University and the qualifications, emoluments and duties attached thereto;
(iii) to formulate and modify or revise schemes for organisation of the faculties and to assign to such faculties their respective subjects and also to report the Executive Council as to the expediency of the abolition or subdivision of any faculty or the combination of one faculty with another;
(iv) to promote research within the University and to require, from time to time, report on such research;
(v) to consider proposals submitted by the faculties,
(vi) to lay norms and to appoint committees for admission to the University;
(vii) to recognise diplomas and degrees of other Universities and Institutions and to determine their equivalence in relation to the diplomas and degree of the University;
(viii) to fix, subject to any conditions accepted by the General Council, the time, mode and conditions of competitions for fellowship, scholarship and other prizes and to award the same;
(ix) to make recommendations to the Executive Council in regard to the appointment of examiners and if necessary their removal and the fixation of their fees, emoluments and travelling and other expenses;
(x) to make arrangements for the conduct of examinations and to fix dates for holding them;
(xi) to declare the results of the various examinations or to appoint committees or officers to do so, and to make recommendations regarding the conferment or grant of degrees, honours, diplomas, licences, titles and marks of honour;
(xii) to award stipends, scholarship, medals and prizes and to make other awards in accordance with the regulations and such other conditions as may be attached to the awards.
(xiii) to publish list of prescribed or recommended text books and to publish syllabus of the prescribed courses of study.
(xiv) to prepare such forms and registers as are, from time to time, prescribed by statutes; and
(xv) to perform, in relation to academic matters, all such duties and to do all such Ordinances as may be necessary for the proper carrying out the provisions of this Act and the statutes.
27(11) The Vice Chancellor shall-
(a) ensure that the provisions of this Act and the statutes are duly observed and shall have all powers as are necessary for that purpose;
(b) subject to the specific and general directions of the Executive Council the Vice Chancellor shall exercise all powers of the Executive Council in the management and administration of the University;
(e) convene the meetings of the General Council, the Executive Council. the Academic Council and shall perform all other Acts, as may be necessary to give effect to the provisions of this Act,
(d) have all powers relating to the proper maintenance of discipline in the University."
12. A perusal of the aforesaid provisions show that though the Executive Council is executive body of the University and is responsible for administration, management and control of the University but Section 27(11)(b) provides that subject to specific and general directions of the Executive Council, the Vice-Chancellor shall exercise all powers of the Executive Council in the management and administration of the University. Therefore, unless there is specific or general directions given by the Executive Council, the Vice-Chancellor has power to administer, manage and control the affairs of the University. Ph.D. Ordinance, 2014 only provides with regard to Ph.D seats to be filled up through selection. The same is silent with regard to persons who have qualified NET/GATE/SLATE etc. There is no direction in the entire ordinance with regard to such persons who are permitted by U.G.C. Regulation 2009 to be admitted by the University as per procedure prescribed by the University. Thus, since there is no specific or general direction given by the Executive Council with regard to such persons it was open for the Vice-Chancellor to take a decision. The Academic Council by its 3rd resolution had proposed that such persons may be admitted by the Vice-Chancellor by creating extra seat and Vice-Chancellor has exercised such power. Since the year 2015 till date the Executive Council has not reversed the said decision of Academic Council and Vice-Chancellor. Petitioner continued to pursue her Ph.D. in the University for five long years. Executive Council never objected to the same. Thus, it can safely be understood that Executive Council permitted continuation of petitioner in her Ph.D. course. From the above it is clear that there is no illegality found in the admission process of petitioner. Learned counsel for the respondent University could not point any provision of law under which admission of petitioner could be held to be illegal.
13. Now coming to the judgments referred to by counsel for petitioner, in the case of Rajendra Prasad Mathur (supra) the dispute was of cancellation of admission to the B.E. Course. The High Court allowed the writ petition and the Supreme Court while dismissing the appeals held that:
"8. We accordingly endorse the view taken by the learned Judge and affirmed by the Division Bench of the High Court. But the question still remains whether we should allow the appellants to continue their studies in the respective engineering colleges in which they were admitted. It was strenuously pressed upon us on behalf of the appellants that under the orders initially of the learned Judge and thereafter of this Court they have been pursuing their course of study in the respective engineering colleges and their admissions should not now be disturbed because if they are now thrown out after a period of almost four years since their admission their whole future will be blighted. Now it is true that the appellants were not eligible for admission to the engineering degree course and they had no legitimate claim to such admission. But it must be noted that the blame for their wrongful admission must lie more upon the engineering colleges which granted admission than upon the appellants. It is quite possible that the appellants did not know that neither the Higher Secondary Examination of the Secondary Education Board, Rajasthan nor the first year BSc examination of the Rajasthan and Udaipur Universities was recognised as equivalent to the Pre-University Examination of the Pre-University Education Board, Bangalore. The appellants being young students from Rajasthan might have presumed that since they had passed the first year BSc examination of the Rajasthan or Udaipur University or in any event the Higher Secondary Examination of the Secondary Education Board, Rajasthan they were eligible for admission. The fault lies with the engineering colleges which admitted the appellants because the Principals of these engineering colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants. We do not see why the appellants should suffer for the sins of the managements of these engineering colleges. We would therefore, notwithstanding the view taken by us in this Judgment, allow the appellants to continue their studies in the respective engineering colleges in which they were granted admission. But we do feel that against the erring engineering colleges the Karnataka University should take appropriate action because the managements of these engineering colleges have not only admitted students ineligible for admission but thereby deprived an equal number of eligible students from getting admission to the engineering degree course. We also endorse the directions given by the learned Judge in the penultimate paragraph of his Judgment with a view to preventing admission of ineligible students." (emphasis added)
14. Further, in the case of Ashok Chand Singhvi (supra), where the facts were similar to the current case, the Court observed that students cannot be made to suffer for the fault of the management of the university. The relevant paragraphs of the judgment are as follows:
"14. It is urged by Mr Mehrotra, learned counsel appearing on behalf of the respondents, that the appellant could not be admitted and his admission was illegal. There may be some force in the contention of the learned Counsel, but when all facts were before the University and nothing was suppressed by the appellant, would it be proper to penalise the appellant for no fault of his? The admission of the appellant was not made through inadvertence or mistake, but after considering even all objections to the same, as raised by the said Officer-in-Charge, Admissions, in his note. The appellant was communicated with the decision of the Dean as approved by the Vice-Chancellor admitting him to the Second Year BE course. The appellant deposited the requisite fees and started attending classes when he was told that his admission was directed to be put in abeyance until further orders without disclosing to him any reason whatsoever.
15. It is curious that although the admission to the BE degree course of the University is governed by statutes of the University and admission rules, the said resolution of the Syndicate dated 13-12-1970 has also been kept alive. Neither the Dean nor the Vice-Chancellor was aware of the true position, namely, as to whether the said resolution had become infructuous in view of the statutes and the admission rules. A teacher candidate is likely to be misled by the said resolution. It is the duty of the University to see that its statutes, rules and resolutions are clear and unambiguous and do not mislead bona fide candidates. The University should have revoked the said resolution in order to obviate any ambiguity in the matter of admission or included the same in the statutes as part of the admission rules.
16. When the appellant made the application beyond the last date, his application should not have been entertained. But the application was entertained, presumably on the basis of the said resolution of the Syndicate. The appellant also brought to the notice of the Dean the said resolution and also the implementation of the same by admitting seven teacher candidates.
17. It is submitted on behalf of the University that it was through mistake that the appellant was admitted. We are unable to accept the contention. It has been already noticed that both the Dean and the Vice-Chancellor considered the objections raised by the Officer-in-Charge, Admissions, and thereafter direction for admitting the appellant was made. When after considering all facts and circumstances and also the objections by the office to the admission of a candidate, the Vice-Chancellor directs the admission of such a candidate such admission could not be said to have been made through mistake. Assuming that the appellant was admitted through mistake, the appellant not being at fault, it is difficult to sustain the order withholding the admission of the appellant. In this connection, we may refer to a decision of this Court in Rajendra Prasad Mathur v. Karnataka University [1986 Supp SCC 740] . In that case, the appellants were admitted to certain private engineering colleges for the BE degree course, although they were not eligible for admission. In that case, this Court dismissed the appeals preferred by the students whose admissions were subsequently cancelled and the order of cancellation was upheld by the High Court. At the same time, this Court took the view that the fault lay with the engineering colleges which admitted the appellants and that there was no reason why the appellants should suffer for the sins of the management of these engineering colleges. Accordingly, this Court allowed the appellants to continue their studies in the respective engineering colleges in which they were granted admission. The same principle which weighed with this Court in that case should also be applied in the instant case. The appellant was not at fault and we do not see why he should suffer for the mistake committed by the Vice-Chancellor and the Dean of the Faculty of Engineering." (emphasis added)
15. The said judgments are followed and a similar approach is adopted by the Delhi High Court in the case of Abha George (supra), the Delhi High Court was of the opinion that:
"18. In Javed Akhtar case [Javed Akhtar v. Jamia Hamdard, 2006 SCC OnLine Del 1504] , a Coordinate Bench of this Court considered a case where the petitioners' candidature was accepted for appearing in the entrance examinations, and they were admitted to the institution concerned. Their admissions were cancelled after they had attended the classes for one month. The facts of the case are very similar to the present case. The question framed by the court was in the following terms:
"21. ... This is not disputed that the petitioners filled the forms for appearing in the entrance examination and gave their correct date of birth. The forms of the petitioners were considered and they were allowed to appear in the examination. After their names appeared, they were called for counselling and after verifying the documents and certificates of the petitioners, they were given admission. The petitioners were issued identity cards after accepting the fees for the course from them and the petitioners were allowed to attend classes for a month and thereafter by communication dated 8-8-2006 the admission of the petitioners have been cancelled. Whether Respondent 1 can be allowed to cancel the admission midterm in the facts and circumstances, when the petitioners have not concealed any thing nor produced any documents to mislead Respondent 1? Whether Respondent 1 will be estopped from cancelling the admission of the petitioners in the facts and circumstances?" [ Emphasis supplied]
19. The court answered the question thus:
"38. Therefore, while granting the admission if the academic body has acted inattentively and mechanically, then they cannot be allowed to take the plea that the admission was never valid and that the petitioners were ineligible from the very inception and knowing the ineligibility they applied for admission. The respondents cannot be allowed to cancel the admission at their own convenience at any time of the year without considering the fact that if they cancel the admission after the session has started then the entire year of the petitioners will be spoiled as the petitioners would not be in a position to take admission in any other college/university. If this fact of their ineligibility for admission was conveyed to them at the very start they would have taken admission in some other college/university.
39. In such situation, in view of the decision in Sangeeta Shrivastava v. U.N. Singh [Sangeeta Shrivastava v. U.N. Singh, 1979 SCC OnLine Del 202], the petitioners cannot be penalised for the negligence of authorities. It is important to appreciate that the petitioners in the facts and circumstances cannot be accused of making any false statement or suppressing any relevant fact before anybody. They clearly mentioned their date of birth in the application form for admission, and are not guilty of any fraud or misrepresentation. It was the duty of the university to have scrutinised the application form and the certificates thoroughly before granting admission to the petitioners and permitting them to attend the classes and not having done so they cannot cancel the admission thereafter. By accepting the application form and subsequently granting admission representation was made by the respondents that the petitioners' were eligible for admission and the petitioners' acting upon the same took admission and thus the petitioners' suffered a detriment. Had the respondents not made the representation that the application had been approved and granted admission the petitioners' would have applied and taken admission else where. Therefore the respondents are estopped from pleading that the petitioners were not entitled to a seat from the inception and that the admission is void ab initio and that the admission without fulfilment of the eligibility criteria is a nullity.
40. In the facts and circumstances of the case the respondents cannot be allowed to take advantage of their own wrong and cannot be permitted to take the plea that under the prospectus they had the power to cancel the admission of ineligible student and the principle of estoppel will operate against them. The respondents are estopped from cancelling the admission of the petitioners' and further from preventing them from pursuing the 'pre tib' course in the present facts and circumstances." [ Emphasis supplied]
20. Applying these authorities in the present case, it appears that the petitioners' documents were accepted by the respective centres of Aiims, despite the fact that their qualifying examination results were declared one week later than stipulated in the prospectus. The petitioners have prosecuted their studies for almost two months prior to issuance of the impugned OM dated 18-10-2021. There is no allegation that the petitioners had misrepresented or concealed any information from Aiims --indeed, there cannot be, as the qualifying examination was conducted by Aiims itself. Applying the observations of the Supreme Court in Rajendra Prasad Mathur case [Rajendra Prasad Mathur v. Karnataka University, 1986 Supp SCC 740] , in the present case also, the blame lies more upon the institution than the petitioners. The candidates applied; their results were declared by Aiims, New Delhi; those results were submitted to the regional centres to which they have been assigned, and they were granted admission. Their admissions were cancelled after they had spent almost two months on the course. The judgment of this Court in Javed Akhtar case [Javed Akhtar v. Jamia Hamdard, 2006 SCC OnLine Del 1504] , in fact, goes further to hold that an academic institution cannot be permitted to cancel admissions after the course had started, at any time during the year, due to prejudice that would be caused to the candidates who were admitted as they would by then be unable to take admission in any other university to which they may have been admitted."
16. Law is, thus, well settled on the issue involved. Once, the University has granted admission and permitted petitioner to continue for five long years and her Ph.D. course is on the verge of completion, it is now not open for the University to restrain petitioner from completing her course. Even presuming some irregularity did occur at the time of admission in Ph.D. course, the same can not now be made the basis for denying petitioner from completing her course. Learned counsel for respondent University could not show from record that petitioner has in any manner misrepresented or played fraud or otherwise was maliciously involved in the said admission process. The decision was taken by the authorities of University in exercise of its powers. Thus, this Court finds that the respondent University cannot restrain petitioner from completing her Ph.D. course and is bound to consider her application for extension of period by one year as per rules.
17. This Court further finds that the country is making its best efforts to grow from a developing nation to a developed one. Repeatedly it is said that to become a developed nation huge research work is required to be conducted within the Country. Now, when the students are pursuing their research work and are at the verge of completion it is highly improper to restrain them from completing their research on legal technicalities. The country is in dire need of research work. Petitioner has put more than five years in her Ph.D. course and is on the verge of submitting the same. Now denial of benefit of said research work to the nation in itself would be a huge loss. In the said circumstances also this Court is inclined to exercise its discretionary jurisdiction in favour of petitioner and against the respondent University.
18. In the given facts and circumstances of the case, the writ petition is allowed and a mandamus is issued to respondent University to consider the application of petitioner for extension of one year after five years of Ph.D. course and permit her to submit fees in accordance with law. Such a decision shall be taken and communicated to the petitioner by the respondent University within a period of 15 days and accordingly petitioner shall be permitted to complete her Ph.D. course in accordance with law.
Order Date :- 31.05.2023 Arti/-
[Vivek Chaudhary,J.]