Andhra HC (Pre-Telangana)
The Registrar, Osmania University vs Madina Educational Society, Rep. By Its ... on 25 March, 1996
Equivalent citations: 1996(2)ALT377
Author: M.H.S. Ansari
Bench: M.H.S. Ansari
JUDGMENT P.S. Mishra, C.J.
1. Writ petitioner- respondent has claimed that it has established an institution and sought affiliation to the Osmania University and requested the University accordingly to permit the students admitted by it to appear in the examination. According to the petitioner-respondent although everything has gone well for the institution inasmuch as all concerned including the All India Council for Technical Education has recommended favourably, the University has not granted the formal affiliation to the institution, and thus it has suffered and students who are admitted are also suffering. Pending the writ petition, it has sought for a direction to the University to permit the students to take the examination. Learned single Judge has disposed of the miscellaneous petition mainly on the ground inter alia that University has not attended to the representation of the petitioner - respondent and the facts that the inspection committee of the University had inspect the institution and sent a feasibility report to the Andhra Pradesh State Council for Higher Education on 17-11-1994; That report was sent to the Government; The Government recommended the institution to the All India Council for Technical Education for grant of permission; and the inspection committee of the All India Council for Technical Education gave a provisional approval on 08-1-1996 and recommended, the institution as a minority institution, have not been disputed. Learned single Judge has accordingly ordered as follows:
"The learned standing counsel for the University accepts the above position, but states that there have been several irregularities in the procedure because even the approval given by AICTE was not in accordance with the provisions of the Statute and regular affiliation letter has not been issued and cannot be issued in the middle of the academic year. According to him, admission of the students even at the inspection was illegal and therefore the students cannot be permitted to sit for the examination. However, the allegation in the writ petition that most of the colleges in the University do not have affiliation. Letters from the University or even approval from the AICTE is admitted. The picture that is given is that the activities in the Univesity are in a mess, that certain officers had acted illegally and unless the entire situation is cleared, the excellence of education cannot be restored. The admitted position is that the situation in which other students of other colleges are permitted to write the examinations is not different from the students of the petitioners-institution. If the students of the petitioner institution are allowed to write the examination subject to further proceedings of the University to verify the worth of the institution to get affiliation and ultimately if affiliation is granted, these students will not lose an academic year. If, on the other hand, they are denied opportunity to sit for the examination and the University later granted affiliation, the students will unnecessarily lose their academic career. I am, therefore, of the opinion that balance of convenience requires that the students belonging to the petitioner institution should be allowed to sit for the semester examinations scheduled to beheld on 26-2-1996.1, therefore, direct University to allow the students to sit for the examinations."
2. The Supreme Court has in All Bihar Christian Schools Association and Anr. v. State of Bihar and Ors., held that:
"Even if a minority community has fundamental right to establish and administer educational institution it has no right to insist upon the State to allow a student to appear at the public examination with out recognition or without complying with the conditions prescribed for such recognition."
3. In Nageshwararnma v. State of Andhra Pradesh, 1986 (Suppl.) SCC 106 the Supreme Court has observed that:
"If permission is granted to the students of , and unrecognised institute to appear at the examination, it would amount to encouraging and condoning the establishment of unauthorised institutions." The Court declared that jurisdiction of the Supreme Court under Article 32 or of the High Court under Article 226 of the Constitution should not be frittered for such purpose.
4. In A.P. Christian Medical Educational Society v. Government of Andhra Pradesh and anr., the Supreme Court observed that:
"Any direction of the nature sought for permitting the students to appear at the examination without the institution being affiliated or recognised would be in clear transgression of the provision of the Act and the regulations. The Court cannot be a part to direct the students to disobey a statute as that would be destructive of the rule of law."
5. In State of Tamil Nadu v. St. Joseph Training Institution and Ors. the Supreme Court has pointed out that:
"Under Article 30 of the Constitution minorities based on religion or language have fundamental freedom to established educational institutions of their own choice. But the State has right to prescribe regulatory provisions for ensuring educational excellence. Minority institutions which do not seek recognition are free to function according to their own choice but if such an institution seeks recognition from the State it has to comply with the prescribed conditions for granting recognition and in that event the minority institution has to follow prescribed syllabus for examination, courses of studies and other allied matters. Even if a minority community has fundamental right to establish and administer educational institution it has no right to insist upon the State to allow students to appear at the public examination without recognition or without complying with the conditions prescribed for such recognition."
6. In U.P. Junior Doctors' Action Committee v. B. Sheetal Nandwani, 1991 (2) SLR 605 the Supreme Court has said;
"It is a well-known rule of practice and procedure that at interlocutory stage a relief which is asked for and is available at the disposal of the matter is not granted............Taking an overall picture of the matter we are of the view that unless there is any special reason to be indicated in clear terms in an interlocutory order as a rule no provisional admission should be granted and more so into technical courses."
7. The writ petition is pending. The issue whether the University, in the circumstances as above, would be obliged to grant affiliation, for the degree courses in computer applications to the institution of the petitioner respondent No. 1 is yet to be decided in the writ petition. There are regulations clearly laying down that such institutions should not admit students until they are granted affiliation and even if such institutions admit students they are free to do so for the limited purpose of Article 30 of the Constitution, but, as a matter of right, cannot claim affiliation unless they fulfil conditions and regulations in this behalf and obviously cannot ask for the students to be admitted to the examinations conducted by the University unless they have such affiliation/ recognition. It is precisely for the said reason that we have to hold against the impugned order and set it aside. The impugned order is accordingly set aside.
8. In spite of strong worded orders issued by the Courts it is seen, however, that Universities and other authorities do not strictly enforce the conditions of affiliation and regulations in this behalf and many such institutions which otherwise are not fit to be recognised or affiliated come up and grow beyond size for the administrators in the Government and the University to contain them. Where such unscrupulous acts begin and why they go unchecked, however, are matters on which the Court can only conjecture unless there are specific informations made available to it. Learned single judge felt persuaded to issue an interim direction because in his opinion there was some fault somewhere in the conduct of the University and fate of unsuspecting students was/is involved. Compassion and sympathy do play a very important role and sharp edges of justice are softened by such considerations. Sympathy, however, cannot be extended or stretched beyond a limit and when they enter into the realm of law and it is found that they are likely to go against the rules of law and regulations in this behalf the Courts must not be guided by any sympathy. We part with the appeal, however, hoping that all relevant facts shall be placed by all concerned parties in the writ petition and the Court shall be able to take a proper and correct decision in the controversy between the parties. Any delay in the disposal of the writ petition may be against the interests of justice. We direct accordingly for posting the writ petition for final hearing in the second week of April, 1996. The appeal is allowed.