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[Cites 18, Cited by 0]

Gujarat High Court

Ananya Pramod Joshi vs National Institute Of Design on 23 September, 2022

Author: Sangeeta K. Vishen

Bench: Sangeeta K. Vishen

    C/SCA/14583/2022                             CAV JUDGMENT DATED: 23/09/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 14583 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

==========================================================

1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
                          ANANYA PRAMOD JOSHI
                                  Versus
                       NATIONAL INSTITUTE OF DESIGN
==========================================================
Appearance:
MR MITUL K SHELAT WITH MS DISHA N NANAVATY(2957) for the
Petitioner(s) No. 1
MR DG SHUKLA(1998) for the Respondent(s) No. 1
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                     Date : 23/09/2022
                     CAV JUDGMENT

With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal.

2. Issue rule, returnable forthwith. Mr Deepak G. Shukla, learned advocate waives service of notice of rule on behalf of the respondent.

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3. By this petition, the petitioner, is seeking to challenge the communication/email dated 25.7.2022 issued by the National Institute of Design, i.e. respondent (hereinafter referred to as 'the respondent'), cancelling the candidature of the petitioner for Master of Design (Ceramic and Glass Design Discipline) (hereinafter referred to as 'M.Des') for the academic year 2022 - 23.

4. Tersely stated are the facts, as culled out from the memo of petition.

4.1. The respondent, invited applications for admission to various postgraduate courses for the academic session 2022-23 vide notification dated 5.10.2021. Apropos which, the petitioner applied and appeared in the entrance examination conducted by the respondent on 2.1.2022. Result was declared on 23.4.2022, followed by online interview on 20.5.2022, further followed by studio test on 9.6.2022. The petitioner, cleared prelims and mains and stood ranked at serial no.1 in open category with 97.22 percentile. The petitioner, was provisionally allotted seat in M.Des under open category and was required to pay non-refundable fees of Rs.30,000/- on or before 7.7.2022 and upload the requisite documents. The petitioner, submitted all the required documents as indicated in the instructions, including the bona fide certificate dated 30.6.2022 issued by the Dean, the Design Village, Sri Venkateswara University. The petitioner, received an e-mail from the admission cell of the respondent on 12.7.2022 stating that document verification is in progress and the student would receive provisional offer of admission by next week.

4.2. The petitioner, received an email dated 21.7.2022, indicating that upon verification of documents, it is found that the petitioner, is pursuing graduation from the Design Village (hereinafter referred to Page 2 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 as 'the college') and which, according to the application form, is affiliated to Shri Venkateswara University, Gajraula, U.P. (hereinafter referred to as 'the university); however, the university, does not display the college in the list of affiliated colleges. The petitioner, was therefore, asked to produce a letter from the university, seeking clarification of the affiliation of the college with the university for the entire duration by 22.7.2022.

4.3. In terms of the said e-mail, the petitioner, submitted the letter issued by the university. The petitioner, around 19.19 hours on 21.7.2022, received an e-mail from the admission cell of the respondent, stating that the attached documents or the industry collaboration of the university, does not prove that, the course the petitioner has undergone, is affiliated to the university. The petitioner, was therefore, directed to produce marksheets and degree certificate (provisional degree certificate in case results are awaited) with the seal and stamp of the university. The e-mail further stated that the marksheets submitted by the petitioner, are issued by the college and not the university. In alternative, it was stated that the petitioner, can submit a letter from the university that the course is affiliated to the university and it will provide its marksheets and degree certificate for the duration of the entire course by 22.7.2022.

4.4. The petitioner responded to the e-mail requesting for time having regard to the documents. The respondent, sent an e-mail dated 22.7.2022, requiring the petitioner to submit additional documents under the signature of the Registrar of the university to be produced by 4 p.m., same day. According to the petitioner, the petitioner, at the earliest available time, approached the university for issuance of the certificate, as required. The university, issued a certificate and bona fide certificate in relation to the course of the Page 3 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 petitioner pursuing the same. By another email, the petitioner, provided additional documents.

4.5. On 22.7.2022, at around 7.33 p.m., the petitioner, received an e-mail from the respondent, seeking documents evidencing collaboration of the batch from 2018 - 2022 and in response thereof, the petitioner approached the university and submitted the required document on 23.7.2022 by 1 p.m. On 25.7.2022, at around 6.47 p.m., the petitioner received an e-mail from the admission cell of the respondent, cancelling the candidature of the petitioner for M.Des programme for the academic year 2022-23. The cancellation was on the grounds that petitioner, will be appearing for the qualifying examination in the month of September, 2022, which is much later than the commencement of M.Des A.Y. 2022-23. It further stated that the petitioner has not been able to produce the marksheets and degree certificate with the seal and stamp of the university despite given additional time over the stipulated deadline. Hence, the present writ petition.

5. The respondent, has also filed reply, inter alia, opposing the entertainment of the writ petition. It is stated that the admission process for the A.Y. 2022-23, has been conducted as per the rules clearly spelt out in M.Des Admission Handbook 2022-23 (hereinafter referred to as 'the handbook'). It was made clear to all the students that if they have not appeared for the final qualifying examinations, before the verification of documents, the student would not be eligible for admission.

5.1. The stand of the respondent is that the petitioner, had uploaded the documents on 6.7.2022 and the document verification commenced from 11.7.2022 and ended on 21.7.2022, as the orientation for M.Des and B.Des batch was scheduled on 11.8.2022 Page 4 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 and 12.8.2022. According to the respondent, the first semester was to commence from 16.8.2022 as per academic calendar announced in advance for the A.Y. 2021-22 on 15.11.2021 as well as for the A.Y. 2022-23 on 18.7.2022. It is further stated that the petitioner, would be appearing for her 8th semester examination in the month of September, 2022 and the results, are expected to be declared by September, 2022 and therefore, the petitioner would be appearing for her final examinations after the extended deadline and commencement of the academic term with effect from 16.8.2022. The petitioner, was informed vide communication dated 25.7.2022 that her candidature in M.Des programme for the A.Y. 2022 -23, stands cancelled.

5.2. It is further stated that the petitioner, is undergoing her studies of bachelor of design from the college, which is neither affiliated to the university nor recognised by law in India. According to the respondent, the petitioner was informed through several e- mails to produce the marksheets and degree certificate with the seal and stamp of the university as well as letter from the university stating that the course is affiliated to the University. The petitioner, did not submit the documents about the affiliation of the college with the university. According to the respondent, as per the communication dated 26.5.2011 of the University Grants Commission (hereinafter referred to as 'UGC') the university, shall not have any affiliated colleges. In view thereof, the candidature of the petitioner, was liable to be rejected as per Section 4 of the handbook as, the petitioner is not possessing the eligibility criteria of Bachelor of Design from any university or institute recognised by law in India. With this, it is stated that the petition does not deserve to be entertained and deserves to be dismissed.

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6. Respective rejoinder and sur-rejoinders have also been filed, taking respective stands. Reference whereof, would be made if and when necessitated.

7. Mr Mitul K.Shelat, learned advocate appearing for the petitioner submitted that apropos applications invited by the respondent, the petitioner applied and appeared in the entrance examination, and upon clearing the examination, an online interview was held, followed by studio test. The petitioner cleared the prelims and mains examination by securing 97.22 percentile and was ranked at serial no.1 in open category.It is submitted that the petitioner, has complied with all the conditions mentioned in Important Instructions regarding M.Des Results and Seat Allotment (hereinafter referred to as 'the instructions') by submitting all the necessary documents and whenever, clarification was sought for, the petitioner provided each and every clarification.

7.1. It is submitted that instructions, nowhere stated that the candidate, is to complete the qualifying examination before any particular date or commencement of the course. In fact, clause 6 of Step 4 of the instructions, clearly provides for furnishing of graduation certificate or provisional degree certificate. Bona fide certificate was to be provided in case, the qualifying examination has not been conducted or the final results are awaited. The note appended to Step 4, clearly provides that the candidate whose qualifying examinations has not been conducted or the results are awaited, must upload the bona fide certificate in the format provided by the respondent issued by the Principal/Dean of the college coupled with expected date of examination or expected date of announcement of the results of the qualifying examination.

7.2. It is submitted that from 6.7.2022 to 25.7.2022, various e-

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C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 mails were exchanged between the petitioner on one hand and the respondent on the other, seeking clarification and counter clarifications. All the clarifications were duly provided by the petitioner. It is submitted that what came was the communication dated 25.7.2022, containing two reasons, namely, (i) that the petitioner will be appearing for the qualifying examination in the month of September, 2022, which is much later than the commencement of M.Des course and, (ii) that the petitioner has not been able to produce the marksheets and degree certificate with the seal and stamp of the university despite given additional time over the stipulated deadline. It is submitted that with these two grounds, the respondent, has cancelled the candidature of the petitioner; however, in the reply filed by the respondent, additional ground has been raised, i.e. the college is neither affiliated to the university nor recognised by law in India. It is also the stand of the respondent that the candidature of the petitioner, is liable to be rejected as per the provisions of the handbook, as the petitioner, is not possessing the eligibility criteria about the bachelor's degree, i.e. Bachelor of Design from any university or institute recognised by law in India.

7.3. It is submitted that the handbook, has been referred to by the respondent for the first time. By referring to the admission bulletin, it is the stand of the Respondent that the candidate, in the present case the petitioner, must have passed the bachelor degree examination at the time of document verification tentatively scheduled in the month of May/June. It is submitted that the action of the respondent, is to be tested on the basis of the order passed and not the stand taken in affidavit.

7.4. It is submitted that so far as the first ground is concerned, about the petitioner appearing for the qualifying examination in the Page 7 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 month of September, 2022; it is not available for, before the commencement of the M.Des course, the petitioner has cleared the examination and obtained the degree which has been duly issued by the university. Along with the mark sheet, University has also issued provisional certificate dated 16.8.2022 and other documents, namely, character certificate, migration certificate etc. 7.5. It is submitted that apart from the aforesaid, the petitioner provided the bona fide certificate dated 30.6.2022 wherein, it has been clearly stated that she will be appearing for 8 th semester examination for the academic year 2021-22 in the month of September, 2022 and the results, are expected to be declared by September, 2022. It is submitted that the said bona fide certificate was issued as per the instructions published by the respondent; however, no objection was raised at that time. The ground has been raised only for the first time at the time of cancellation of the candidature. Had it been the objection, the respondent ought to have raised at the first available opportunity.

7.6. It is further submitted that the respondent, in the interregnum, has raised several objections, namely, (i) that the college, is not affiliated with the university and, (ii) marksheets carry seal and stamp of the college and not the University. It is submitted that clause 5 of step 4 uploading of documents, only requires semester wise marksheet or consolidated transcript of graduation/diploma programme, and there is no such requirement that the marksheets or degree certificate, should be with the seal and stamp of the university and not the college. Since the respondent required the marksheets and degree certificate with the seal and stamp of the university, the petitioner has produced it within 3 to 4 working days and it cannot be expected that the Page 8 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 petitioner, would produce the same within 24 hours.

7.7. It is submitted that in the alternative, the petitioner was required to submit the letter from the university stating that the course is affiliated to the university and the university will provide the marksheet. The petitioner, provided the bona fide certificate of the university, so also the certificate certifying that university has collaborated for providing vocational and industrial training to the students enrolled in the design degree course conducted by university and it is responsible for all academic and administrative work related to the registration, enrollment, conduct of the examination and the award of degree. It also clarified that the college serves as a technical collaborator of the university. Query was also raised that the university does not display the college in the list of affiliated colleges and therefore, required a letter from the university that it had the affiliation for the duration of the entire course till July, 2022. Certificate was provided by the university; however, the respondent was not satisfied as it indicated the Bachelor of Design programme 2019-23 not 2018-22.

7.8. It is next submitted that the respondent, required that the said document does not prove that the college has collaboration of the batch of 2018-22 of the university. Responding to the said query, the petitioner submitted another certificate of the university, certifying that the University is responsible for all academic and administrative work and that the college serves as the technical collaborator for the undergraduate program 2018-22. So far as the marksheet from the university is concerned, the petitioner requested that she is trying to arrange; however, it will take some time. To the surprise of the petitioner, without waiting, the respondent, issued an e-mail dated 25.7.2022, cancelling the candidature of the petitioner only on two grounds that, firstly, the Page 9 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 petitioner will be appearing for the qualifying examination in the month of September, 2022, which is much later than the commencement of M.Des 2022-23, and secondly, that the petitioner has not been able to produce the marksheets and degree certificate with the seal and stamp of the university; marksheets were by the college and not the university.

7.9. It is therefore, submitted that the order contained only two grounds, whereas affidavit, is travelling beyond those two grounds and it is well settled that the order cannot be improved upon by filing affidavit. Reliance is placed on the judgment in the case of Opto Circuit India Ltd. vs. Axis Bank reported in (2021) 6 SCC 707. It is submitted that it has been held and observed that the action sought to be sustained should be with reference to the contents of the impugned order/communication and the same cannot be justified by improving the same through the contention raised in the objection statement or affidavit filed before the Court. Reliance is also placed on the judgment in the case of Dipak Babaria vs. State of Gujarat reported in (2014) 3 SCC 502. It has been held and observed the Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits. It is therefore, submitted that the respondent cannot not improve or add the order by filing the affidavit.

7.10. It is further submitted that the Section 22 of the University Grants Commission Act, 1956 (hereinafter referred to as 'the Act of 1956') provides for right to confer degrees. Sub-section (1) of Section 22 provides that the right of conferring or granting degrees shall be exercised only by a university established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a university under Section 3 or an institution specially empowered by an Act of Parliament to confer or Page 10 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 grant degrees. Sub-section (2) of Section 22 of the Act of 1956, excludes the person to confer or grant any degree. Sub-section (3) of Section 22 of the Act of 1956 defines the term 'degree'.

7.11. Reliance is placed on the judgment of the Apex Court in the case of Dr. B.L. Asawa vs. State of Rajasthan reported in (1982) 2 SCC 55. It has been held and observed that degree granted by a university, duly established by statute in this country and recognised by the Indian Medical Council by inclusion in the schedule of the Medical Council Act, has ipso facto to be regarded, accepted and treated as valid throughout the country. It has been held that in absence of any express provision to the contrary, such a degree does not require to be specifically recognised by other universities in any State in India. It is submitted that in paragraph 11, the Apex Court, has held and observed that in the case of postgraduate degree, in the concerned subject awarded by a statutory Indian university, no recognition or declaration of equivalence by any other university is called for. It is therefore, submitted that when there is a degree or certificate issued by any university, it would be impermissible for the respondent to doubt the said degree or marksheet inasmuch as, the veracity cannot be gone into.

7.12. While dealing with the instructions vis-a-vis the provisions in handbook, it is submitted that when instruction was unclear, as regards the marksheets/degree certificate has to be under seal and stamp of the university, rejection by the respondent, on that ground, would be illegal. It is submitted that in the judgment of this Court in the case of M/s. Aquafil Polymers Co. Ltd. vs. Gujarat Urban Development Company Limited rendered in Special Civil Application no.11731 of 2018, the Division Bench has held that the requirements must be explicit and if the same are not clear, the Page 11 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 party cannot be penalised.

7.13. As regards the requirements of eligibility, reliance is placed on the judgment of this Court in the case of Prathamkumar vs. Indian Institute of Management reported in 2005 (2) GLH 438. The petitioners therein were denied the opportunity to participate in the admission process on the ground that the university from where the petitioners have studied is not recognised by the Association of Indian Universities. The issue, therefore, was whether such a stipulation while considering the eligibility criteria is reasonable and whether it has any nexus with admission / admission process or not ? This Court, in paragraph 27, declared that the stipulation to the effect that a candidate from where he has studied and the degree obtained by him, must have recognition by AIU is unreasonable, arbitrary as it has no nexus with admission process and the same was quashed and set aside.

7.14. It is further submitted that the marksheets and the degree certificate as well as other requirements has nothing to do with the merit of the petitioner. In fact, the petitioner was selected as a result of the entrance examination conducted by the respondent, followed by interview, further followed by studio test, coupled with the prelims and mains examination where, the petitioner, secured 97.22 percentile and was ranked at sr. no.1 in open category. Therefore, raising such objection, which otherwise has no nexus; the result would be that meritorious student will be deprived of admission. There is no dispute about the merit of the candidate, she having gone through the litmus test and succeeded, unfortunately, the candidature, has been rejected on trivial grounds that the examinations are much later and certificates are not provided. The examinations were also conducted before the commencement of the academic year and certificates and marksheets were provided Page 12 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 within 2 - 3 days. While concluding, it is urged that the instructions are enabling and when the instructions are enabling in the context of higher education, this Court would see that the merit is not sacrificed.

8. On the other hand, Mr Deepak G. Shukla, learned advocate appearing for the respondent, while drawing the attention of this Court to the reply submitted that the respondent had published the handbook for admissions 2022-23, and the last date of submission for online was 30.11.2021. Section 4 provides for eligibility criteria and Section 4.1 deals with the M.Des, which categorically provides that all candidates applying for the M.Des programme (any discipline) must fulfill eligibility criteria of both age and educational qualification. It is therefore, submitted that it provides that the candidate "must fulfill the eligibility criteria". In the present case, so far as age is concerned, there is no dispute; however, the issue is only with the educational qualification. It is further submitted that educational qualification, provides that the candidate must possess at least one of the minimum qualifications to be considered eligible for admission. First option is the candidate must possess a bachelor's degree of minimum four year duration in any specialisation after standard 12th or equivalent to 12th standard from any university or institute recognised by law in India. Second and third are optional. The requirement, therefore, is that the candidate must have passed the bachelor's degree examination at the time of document verification, tentatively scheduled in May/June, 2022.

8.1. It is submitted that Section 4.3 of the handbook titled "important note", provides for three eventualities; however, the third eventuality, debars the candidates, who have not appeared for their final qualifying examination before the document verification and will not be eligible for admission. It is submitted that the Page 13 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 petitioner as well as other candidates, have been duly informed that if they have not appeared in their final qualifying examination before the verification of the documents, they will not be eligible for admission. The petitioner, does not fulfill either of the three requirements of Section 4.3.

8.2. It is further submitted that after the petitioner uploaded the documents, the process of verification commenced from 11.7.2022 up to 21.7.2022 as the orientation of M.Des and B.Des - 2022 was scheduled on 11.8.2022 and 12.8.2022 as per academic calendar 2022-23. It is submitted that it is not that the said date, was not known to the petitioner. The respondent, had informed well in advance which fact, is strengthened by the academic calendar 2021-22, clearly specifying that academic year 2022-23 will commence on August 16, 2022.

8.3. It is submitted that reliance on step 4 of the instructions "uploading of documents", is not correct. It requires a candidate to provide for graduation/provisional certificate/bona fide certificate, and the bona fide certificate, in the format of the institution, has been called for, so as to know as to when examinations are conducted. Accordingly, the petitioner had provided the bona fide certificate and has ticked the second column wherein, she had clearly stated that she will be appearing for 8 th semester examination for the academic year 2021-22 in the month of September, 2022 and the results are expected to be declared by September, 2022. Therefore, as per the handbook and the instructions, the petitioner shall not be eligible.

8.4. It is next submitted that the first e-mail was sent to the petitioner stating that the university, does not display the college in Page 14 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 the list of affiliated colleges. The petitioner, was also required to produce the letter from the university, clarifying the affiliation of the college with the university for the duration of entire course, followed by another e-mail to the effect that the letter provided by the petitioner, indicates that the Bachelor of Design Programme 2019- 23 has collaboration with the university; however, there is no document which proves the collaboration of the batch of the petitioner, i.e. 2018-22. Further e-mail was issued, inter alia, requiring the petitioner to produce the marksheets and degree certificate (provisional degree certificate in case results are awaited) with the seal and stamp of the university. The concern of the respondent was that the marksheets have been issued by the institute, i.e. the college and not the university.

8.5. It is further submitted that owing to the exchange of e-mails and communications, that the impugned order was passed on 25.7.2022, cancelling the candidature of the petitioner, considering the fact that, (i) the petitioner, was to appear for the qualifying examination in the month of September, 2022, which would be much later than the commencement of M.Des of academic year 2022-23, and (ii) that the petitioner, has not been able to produce the marksheets and degree certificate (provisional degree certificate in case results are awaited) with seal and stamp of the university, despite having given additional time.

8.6. It is next submitted that the respondent, could gather the information from the website of the university and as per the letter dated 26.5.2011 issued by the UGC, the university is not permitted to have any affiliated colleges. As per instructions, i.e. eligibility criteria, the bachelor's degree, has to be from any university or institute recognised by law in India; a novel concept has been evolved using the technical word of collaboration. It is submitted Page 15 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 that it has to be university or college recognised by law and the college, cannot be said to have been recognised by law in India unlike the respondent, which is recognised by the Central Government and therefore, confers the degree.

8.7. It is submitted that though the said university is recognised by the UGC, it is not entitled to have affiliated colleges and is empowered to award degrees through its campus, i.e. Gajraula, J.B. Nagar; whereas, the college, is located at Noida, outside the main campus of the university and only has a technical collaboration with the university which, cannot be construed as affiliation. Clause (a) of sub-section (1) of Section 12A of the Act of 1956 defines the term "affiliation" to mean and includes, in relation to a college, recognition of such college by, association of such college with, and admission of such college to the privileges of, a university. Sub- clause (b) defines the term "college" to mean any institution, whether known as such of by any other name which provides for a course of study for obtaining any qualification from a university and which, in accordance with the rules and regulations of such university, is recognised as competent to provide for such course of study and present students undergoing such course of study for the examination for the award of such qualification. It is submitted that the degree or the course run by the college, cannot be said to be valid in law for, nothing has been placed by the university on record that the college is affiliated with it.

8.8. It is further submitted that as per the provisions of the handbook, the petitioner, was obliged to produce all the documents during the extended period; however, the petitioner, failed to do so. It is submitted that the petitioner, was required to submit the degree certificate and the marksheets with the seal and stamp of the university which, have been submitted belatedly. Moreover, Page 16 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 comparing the marksheets issued by the college vis-a-vis the marksheets issued by the university, there are various discrepancies, namely, (i) code numbers, (ii) total of credits, (iii) subjects, and (iv) heading. Therefore, the marksheets, do not inspire confidence.

8.9. Reliance is placed on the judgment of the Apex Court in the case of A.P. Christians Medical Educational Society vs. Government of Andhra Pradesh reported in (1986) 2 SCC 667. It is submitted that the issue before the Apex Court was about the affiliation and when it was found that the college is not affiliated, the appeal filed was dismissed. Reliance is also placed on the judgment of the Apex Court in the case of State of Tamil Nadu vs St. Joseph Teachers Training Institute reported in (1991) 3 SCC 87. In paragraph 6, the Apex Court, came heavily upon the unauthorised educational institution. It observed that practice of admitting students by unauthorised educational institutions and then seeking permission for permitting the students to appear at the examination has been looked with disfavour. The Apex Court, referred to the judgment of the A.P. Christians Medical Education Society (supra) wherein, it has been observed that 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.

8.10. Reliance is also placed on the judgment of the High Court of Calcutta in the case of Bimal Maiti vs. University of Kalyani rendered in W.P. no.20356 (W) of 2017. The issue, was denying the admission to the petitioners therein for the postgraduate study on the ground that they do not possess the valid graduate degree. Though affiliation was granted by the respondent no.4 therein to the respondent 5; however, it was denuded of its powers to grant such Page 17 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 degree. It is therefore, submitted that it is not clear as to whether the college, is affiliated to the university and in absence thereof, it cannot be said that the college, is recognised by law.

8.11. It is further submitted that the petitioner, was informed through several e-mails to produce the marksheets and degree certificate with the seal and stamp of the university as well as the letter from the university stating that the course is affiliated to the said university; however, the petitioner had not submitted a single document about the affiliation of the college with the university. It is further submitted that in the present case, the admission process, has been carried out as per the admission framework as contained in the handbook and therefore, there arises no question of providing any explicit intimation to the petitioner or to any candidate. Till 25.7.2022, nothing was produced and in absence of furnishing any documents, the respondent rightly rejected the candidature of the petitioner.

8.12. While concluding, it is submitted that the respondent, is in receipt of the marksheets which, were mailed by the college and not the university only on 2.8.2022, much later than 25.7.2022, i.e. beyond the extended deadline, which resulted into cancellation of the candidature. The candidates, are obliged to submit the necessary documents, within the stipulated time period considering that the admission, is a time bound process. It is therefore, submitted that the petitioner, is not entitled to any reliefs and the petition, deserves to be dismissed in limine.

9. Mr Mitul K. Shelat, learned advocate, in rejoinder, submitted that raising objections about the discrepancies in the marksheets, would be too late an objection to be raised by the respondent and that too on the ground that the marksheets, create doubt about its Page 18 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 authenticity and genuineness. If the respondent had any doubt, it should have called for the explanation. In sur-rejoinder, raising for the first time the contention that the marksheets create doubt about its authenticity and genuineness, would be unjust and improper. Doubt is raised as if the petitioner, has produced incorrect documents. It is submitted that if the respondent had any doubt about the authenticity or genuineness of the marksheets, it ought to have addressed a letter to the university, verifying the contents of the marksheets or its authenticity. Having not done so, there is no reason now to doubt the marksheets. It is submitted that documents are genuine and it would be impermissible for the respondent to raise such objection at this stage.

9.1. It is next submitted that in the examinations conducted by the respondent, the petitioner, was assessed. In the DAT prelims and DAT mains examination, the petitioner, has obtained 97.22 percentile. It is further submitted that the marks obtained in the graduation are only for the purpose of eligibility and the discrepancies, have no bearing on the assessment and therefore, the assertion made are not in a right earnest. It is further submitted that the objection raised at the time of shooting the e-mail dated 25.7.2022 was (i) that the petitioner, will be appearing in the qualifying examination in September 2022, which is much later, and

(ii) the marksheets and degree certificate are not produced with the seal and stamp of the university.

9.2. It is submitted that at the time of assessment, the respondent, could have stated that the examinations are much later, but the petitioner had relied upon the instructions, acted upon the instructions and it makes entitled the students to appear in the examination. It is submitted that instructions are exception to the handbook. Clause 6 of Step 4 is an enabling provision which, Page 19 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 provides for issuance of the bona fide certificate (in case the qualifying examination has not been conducted or the final results are awaited) and as a result whereof, bona fide certificate, was submitted. The first item was not available to the petitioner; however, the second wherein, the petitioner had tick marked, it specifically states that the petitioner, would be appearing for the examination after the month of September. Several e-mails were exchanged, but not a whisper about the exam to be held in September or ineligibility on that count. It is only for the first time, while issuing the impugned communication that the respondent, realised that the examinations were to be conducted in the month of September, 2022. Such a stand, is unreasonable and cannot be countenanced. The second ground that has been raised is about the degree and the respondent, is asking for the status; however, the impugned order, does not say that the respondent, is not satisfied about the relationship of university and college and therefore, the respondent, is bound by the degree certificate issued by the university.

9.3. It is submitted that the contention that the college is in Noida, is also misplaced for, the college is in Noida and which is in Uttar Pradesh. The university, has stated that it is responsible for all academic and administrative work related to the registration, enrollment, conduct of examination and award of degree and that the college, serves as the technical collaborator of the university. The university, is constituted by Shri Venkateshwara University Uttar Pradesh Act, 2010, a State Act. Section 7, specifically empowers the university to impart and promote the study of various disciplines through in-campus, off-campus, offshore-campus etc. Clause (d) of Section 7 provides or empowers the university to grant, subject to such conditions as the university may determine, diplomas or certificates to and confer degrees or other academic Page 20 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 distinctions on the basis of examinations, evaluation.

9.4. It is submitted that Section 22 of the Act of 1956 provides "right to confer degrees". The second limitation, is provided in sub- section (2) of Section 22. That no person or authority shall confer or grant or hold himself or itself different as entitled to confer or grant any degree. It is submitted that Section 22, makes a provision for right to confer degrees; and also provides for prohibition. It is further submitted that the Act of 1956 does not prohibit such technical collaboration and that is how the university, has collaborated for providing vocational and industrial training to the students enrolled in the design degree course conducted by the university which, is responsible for all academic and administrative work, including the conduct of examination and award of degree.

9.5. It is submitted that the reliance placed on Section 12A of the Act of 1956, is misplaced inasmuch as, the same deals with the regulation of fees and prohibition of donations, and which has nothing to do with the admissions. While distinguishing the judgments cited by the learned advocate for the respondent, it is submitted that in the said judgments, the university has denied the affiliation; whereas, in the present case, the university in technical collaboration with the college, has issued the marksheets and degree certificate which, is also responsible for all the academic and administrative work, including the award of degree. Therefore, the judgments in case of A.P. Christians Medical Educational Society (supra), State of Tamil Nadu vs St. Joseph Teachers Training Institute (supra) and Bimal Maiti (supra), will not apply to the facts of the present case.

9.6. It is submitted that in the judgment of the Apex Court in the case of Amazon.Com NV Investment Holdings LLC vs. Future Page 21 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 Coupons Private Limited reported in (2022) 1 SCC 209, it has been held and observed that no order bears the stamp of invalidity on its forehead and has to be set aside in regular court proceedings as being illegal. It is observed that it is well settled that even if an order is later set aside as having been passed without jurisdiction, for the period of its subsistence, it is an order that must be obeyed. Hence, it is submitted that Section 22 gives the right in university to confer degrees established or incorporated, inter alia, by State Act and the university in the present case, is established by the State Act and it is entitled to confer the degree and which has been done in the present case. It is reiterated that in absence of any clarity in the instructions, the student cannot be blamed. If such a stand is adopted, the entire career of the student, will be jeopardized and therefore, the decision of cancelling the admission, be quashed and set aside and the petitioner, be granted the admission as prayed for.

10. Heard the learned advocates appearing for the respective parties and perused the documents produced on the record.

11. The present petition, is seeking to challenge the communications/e-mails dated 25.7.2022, issued by the respondent, cancelling the candidature of the petitioner in the M.Des programme for the A.Y. 2022-23. The grounds on which the candidature, has been canceled are, namely, (i) that the petitioner will be appearing in the qualifying examination in the month of September, 2022, which is much later than the commencement of the M.Des A.Y. 2022-23 and, (ii) that the petitioner, has not been able to produce the marksheets and degree certificate (provisional degree certificate in case results are awaited) with the seal and stamp of the university, despite having given additional time over the stipulated deadline. With these two limited grounds, the candidature Page 22 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 has been cancelled. The stance of the respondent is to be examined accordingly.

12. From the averments made in the petition and the replies filed, it is discernible that the respondent invited application for admission to various postgraduate courses for the academic session 2022-23 by issuing notification dated 5.10.2021. Apropos which, the petitioner, applied and appeared in the examination conducted by the respondent. The result whereof, was declared on 23.4.2022. Online interview was held followed by studio test at NID, Ahmedabad on 9.6.2022 and the petitioner, cleared DAT prelims, scoring 61.50 out of 100 and DAT mains, scoring 67.57 out of 100 and the overall score, the petitioner secured was 97.22 percentile. With this scoring, the petitioner, was ranked at serial no.1 in the merit list of the open category.

13. The petitioner, accordingly, was provisionally allotted a seat in M.Des (Ceramic and Glass Design) under open category. The petitioner, submitted all documents as mentioned in the instructions, including the bona fide certificate dated 30.6.2022/6.7.2022 issued by the Assistant Dean of the college, clearly indicating that the petitioner is pursuing her under graduation in the last semester. The bona fide certificate contains specific information that the petitioner will be appearing for her last semester examination in September, 2022 and the results are expected to be declared in the very same month.

14. For the period from 12.7.2022 to 25.7.2022, e-mails were exchanged between the petitioner and the respondent, seeking clarifications which, were provided by the petitioner. On 25.7.2022, the petitioner received an e-mail from the respondent, informing her that her candidature, is cancelled on two grounds referred to, herein Page 23 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 above.

15. As the candidature of the petitioner, has been cancelled on two grounds, material would be to examine the contents of the e- mails exchanged between petitioner and the respondent. On 21.7.2022, at around 3.54 p.m., the petitioner received an e-mail, contents whereof read thus:

"Upon verification of your documents, it has been found that you are pursuing your graduation from the Design Village which according to your application form is affiliated to Shri Venkateshwara University, Gajaraula, UP. However, the Shri Venkateshwara University does not display your institute in their list of affiliated colleges. You are therefore required to produce a letter from Shri Venkateshwara University clarifying the affiliation of the Design Village with Shri Ventakeshwara University for the duration of your entire course till Friday, 22 July 2022."

As per the said e-mail, the respondent required the petitioner to produce a letter from the university clarifying the affiliation of the college with the university for the duration of the entire course. The petitioner, responded vide e-mail dated 21.7.2022 at around 5.23 p.m., attaching the letter from the university, clarifying the affiliation of the college with the university. The said letter of the university, reads thus:

"Shri Venkateshwara University (SVU), Gajaraula (U.P.) and The Design Village (IDV) - an interdisciplinary, international design institute based at 28c. Sec-8, Noida (UP) have collaborated for providing vocational and industrial training to the student enrolled in the design degree course conducted by SVU. The university is responsible for all acacemic and administrative work related to the registration, enrollment, conduct of examination and the award of degree. IDV serves as the technical collaborator of the university providing design courses across various disciplines of graduate and post graduate level."

At around 7.19 p.m., on 21.7.2022 itself, the petitioner, received another e-mail, requiring the petitioner to produce the marksheets and degree certificate (provisional degree certificate in Page 24 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 case results are awaited) with the seal and stamp of the university, since the respondent was of the opinion that the marksheets have been issued by the college and not the university. In the alternative, the respondent also required the petitioner to submit a letter from the university, stating that a said course, is affiliated to the university and that the university will provide the petitioner with its marksheets and degree certificate for the duration of the entire course. The said e-mail, was replied by the petitioner on 22.7.2022 at around 16.15 hours attaching the bona fide certificate issued by the university. The said bona fide certificate issued by the university, reads thus:

"BONAFIDE CERTIFICATE This is to certify that Ananya Joshi D/o Mr. Pramod Banstola, EN.SOD18A02220011; R/o InderRoad, Dehradun, UK-248001 was a bonafide student of B.Design in 'Shri Venkateshwara University'.
Note:- This certificate is issued only for the purpose of student verification and authentification."

On 22.7.2022, at around 4.41 p.m., the petitioner sent another e-mail together with the certificate issued by university, i.e. the recent collaboration proof for the under graduation course - Bachelor in Design affiliation. The university, certified that it and the college, have collaborated for providing vocational and industrial training to the students enrolled in the design degree course conducted by it and that university, is responsible for all academic and administrative work related to the registration, enrollment, conduct of examination and the award of degree. It also certified that the college serves as the technical collaborator of the university providing design courses across various disciplines at graduate and postgraduate level.

16. The respondent, issued an e-mail at around 7.33 p.m., Page 25 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 requiring the petitioner to submit the proof of collaboration of the batch of 2018-22 with the university and to submit the marksheets of all the semester issued by the university and not the college. The petitioner, was required to submit those documents by 23.7.2022 by 12 noon. At around 10.16 p.m. on 22.7.2022, the petitioner submitted detailed explanation about the documents in the e-mail. On 23.7.2022, at around 12:39 p.m., the petitioner submitted certificate of the university, certifying that the university and the college have collaborated for providing vocational and industrial training to the students enrolled in the design course conducted by the university. It further certified that university is responsible for all academic and administrative work related to the registration, enrollment, conduct of examination and the award of degree with a further clarification that the college, serves as a technical collaborator of the university. The said certificate, pertains to the programs 2018-22. The petitioner, also requested that she is trying to arrange for marksheets from the university and it would not be possible to procure them by given deadline. Ultimately, after exchange of all the above-referred e-mails, the respondent, on 25.7.2022, issued the following e-mail:

From the above referred e-mail, at the cost of repetition, it is required to be noted that two reasons were assigned:
(i) that the petitioner, will be appearing in the qualifying examination in the month of September, 2022, which is much later than the commencement of M.DES academic year 2022-23; and
(ii) that the marksheets and degree certificate (a provisional degree certificate in case results are awaited) with the seal and stamp of the university despite having given additional time for the stipulated deadline, have not been produced.

17. Pertinently, in the communication, these were the only two Page 26 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 grounds which, weighed with the respondent while cancelling the candidature of the petitioner and therefore, this Court, would like to deal with those two grounds and determine as to whether the action of the respondent, would be justified in cancelling the candidature of the petitioner in the facts of the case.

18. Adverting to the first ground, i.e. that petitioner, will be appearing for the qualifying examination in the month of September, 2022, which is much later than the commencement of the M.Des academic year 2022-23, it is required to be noted that Step 4 speaks about uploading of documents. The candidate, was to upload the documents mentioned at item nos.1 to 9. Item no.6 provides for uploading of the documents, namely, graduation certificate/provisional degree certificate/bona fide certificate (in case the qualifying examination has not been conducted or the final results are awaited). Step 4 provides:

"STEP 4: UPLOADING OF DOCUMENTS The candidate will have to upload the following documents as a single pdf file of size note more than 10 MB:
1. Any one valid photo identity (Aadhar Card,Election ID, Driving License, PAN Card, Passport)
2. Birth Certificate OR Proof of Date of Birth OR School Leaving Certificate
3. 10th Mark-sheet
4. 12th Mark-sheet
5. Semester wise Marksheet OR Consolidated Transcript of Graduation/Diploma Programme8*
6. Graduation Certificate / Provisional Degree Certificate / Bonafide Certificate (in case the qualifying examination has not been conducted or the final results are awaited*).
7. GEN-EWS/OBC-NCL/SC/ST Certificate, if applicable
8. PwD Certificate, if applicable
9. Valid Passport, if applied under Supernumerary category** *Candidates whose qualifying examination has not been conducted or the results are awaited must upload the bonafide certificate (format available on the Admissions website) issued by the Principal/Dean of the College (last attended) clearly specifying the Roll No., expected date of examination or Page 27 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 expected date of announcement of the results of the qualifying examination, before the deadline for the payment of NON-

REFUNDABLE token fees. If the Degree Certificate is awaited, the candidates will have to upload a Provisional Degree Certificate.

** The candidates who have applied under Overseas category should produce a valid passport. It is the candidate's responsibility to obtain relevant visas and ensure that their passport is valid till the duration of the programme."

19. As per item no.6, three options were available to the candidate to be uploaded, namely, graduation certificate/provisional degree certificate/bona fide certificate (in case the qualifying examination has not been conducted or the final results are awaited). Furthermore, as per the note, in the cases where the qualifying examinations have not been conducted or the results are awaited, the candidate was to upload the bona fide certificate as per the format available on the admissions website. Therefore, the documents which were to be uploaded, was bona fide certificate as per the format available and the petitioner, did provide the bona fide certificate dated 6.7.2022 in terms of the note. The format, which has been made available, relevant excerpts read thus:

"This is to certify that Ms. Ananya Joshi is a bonafide student of The Design Village Noida, bearing Enrollment No. SOD18A02220011.
□She has appeared for her ________ Examination for the Academic year 2021-2022 and has cleared all previous Semesters and has no subject backlogs. The results of the ______Examinations are expected to be declared by ____ 2022.
□She will be appearing for her VIIIth Semester Examination for the Academic Year 2021-2022 in the month of September 2022 and the results are expected to be declared by September 2022."

As against this, heavy reliance is placed on the handbook and more particularly, bullet point no.3 of Section 4.3 titled "important Page 28 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 note" which, read thus:

"• Candidates who have not appeared for their final qualifying exam before the document verification of documents will not be eligible for admission."

20. Reliance is placed on the said note to contend that it was made clear to the candidates that if they have not appeared in their final qualifying exam before the document verification, they will not be eligible for admission. Therefore, the respondent, was very clear that if the candidates have not appeared for their qualifying exam before the document verification, the candidates, will not be eligible for admission. If this was the case, then it is difficult to appreciate as to why the bona fide certificate carried the subsequent stipulation, requiring the candidate to give the details as regards his or her appearing in the examination for the relevant academic year and the expected results. The Court, confronted the learned advocate for the respondent to explain as to why the second information was required from the petitioner in the bona fide certificate, the reply was to know the date of exam. One fails to understand when according to the respondent, as per Section 4.3 of the important note, the candidate who had not appeared in the final qualifying examinations before the document verification, was not eligible, there was no need for incorporating the second column, the details, solely for the purpose of knowing the date of exam.

21. Apart from this, if one is to compare instructions vis-a-vis the provisions in the handbook, in the opinion of this Court, there appears to be some contradiction. Reading this provision with the format available of the bona fide certificate, it allows the candidate to become eligible for admission. Possibly, for this reason, the respondent accepted the bona fide certificate dated 30.6.2022 of the petitioner and did not raise any objection till the final e-mail was issued and for the first time, raised the objection that the Page 29 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 examination is much later than the commencement of the M.Des academic year 2022-23.

22. Perceptibly, the petitioner, had submitted the bona fide certificate dated 30.6.2022 by 6.7.2022 in the format provided by the respondent and therefore, it was known to it that the petitioner, was to appear in the 8th semester examination in the month of September, 2022, followed by the result in the same month. The respondent, could have rejected the candidature of the petitioner at the threshold; however, it did not do so. In fact, and in the subsequent e-mails exchanged between the respondent and the petitioner, there is not a whisper about any reservation shown against the said stipulation, creating an impression that the petitioner, will be eligible for getting the admission. The respondent, could have stopped at that stage, instead, were requiring the petitioner to provide clarifications on other issues, i.e. the certificates by the university, namely, about the affiliation of the college with the university, the course, so on and so forth.

23. Even otherwise, now the examination has been conducted and result has been declared prior to the commencement of the M.Des course. The petitioner, has now been declared as having passed the Bachelor of Design programme with first division for the academic year 2018-22 from the university. The university, has also issued the 8th semester marksheet, the provisional degree certificate, the character certificate and the migration certificate on 16.8.2022, which have been duly submitted by the petitioner to the respondent. Therefore, the first ground raised by the respondent, Is unjust, unreasonable and cannot be sustained.

24. Another ground raised is that the petitioner has not been able to produce the marksheets and degree certificate (a provisional Page 30 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 degree certificate in case results are awaited) with the seal and stamp of the university despite having provided additional time over the stipulated deadline. The said ground, whether is in a right earnest or not, is to be considered on the basis of e-mails exchanged between the petitioner and respondent. The respondent, apropos the document verification, required the petitioner on 21.7.2022 to produce letter from the university, clarifying the affiliation of the college with the university for the duration of entire course to which, the petitioner had submitted certificate of the university, certifying that the university is responsible for all academic and administrative work relating to registration, enrollment, conduct of the examination and the award of degree. Since the respondent was not satisfied, it addressed another e-mail, requiring the petitioner to produce the marksheets and degree certificate (a provisional degree certificate in case the results are awaited) with the seal and stamp of the university. The respondent also required the petitioner to submit the letter from the university stating that the said course is affiliated to the university and that the university will provide with its marksheets and degree certificate.

25. Accordingly, as aforesaid, the petitioner submitted the bona fide certificate issued by the university, certifying that the petitioner is a bona fide student of B.Des of the university. The petitioner, additionally provided the collaboration proof categorically stating that -

"...the university is responsible for all academic and administrative work related to the registration, enrollment, conduct of examination and the award of degree. TDV serves as a technical collaborator of the university providing design courses across various disciplines at graduate and post graduate level".
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C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 Since the respondent needed further clarification about the batch, the petitioner provided another certificate of the university for the year 2018-22. In alternative, the insistence was also by the respondent requiring the petitioner to submit the marksheets and degree certificate. The said requirement, was demanded on 22.7.2022 to be submitted by 23.7.2022 by 12 noon. The petitioner, requested that it will not be feasible to arrange the marksheets as the university have their own pace of working. The petitioner, therefore, requested for some time; however, instead of extending the time, the candidature of the petitioner, was cancelled.

26. As stated herein above, while dealing with the first ground, this Court has pointed out that the university, has itself issued the marksheets for the examination sessions 2018-2019, 2019-2020, 2020-2021 and 2021-2022. All the marksheets have been issued by the university together with provisional certificate, certifying that the petitioner, has been provisionally declared as passed; character certificate, certifying that the petitioner had been a student of Bachelor of Design programme of the university during the academic year 2018-2022, so also migration certificate, certifying that the petitioner, has passed with first division and if she pursues her studies in any programme from any other university/institution, the university has no objection. Therefore, when the university, has issued the certificate/degree certificate required by the respondent vide its e-mail dated 22.7.2022, the second ground raised, in the opinion of this Court, would not be germane to cancel the candidature of the petitioner.

27. In the reply, a contention has been raised by the respondent that the college, is neither affiliated to the university nor recognised by law in India. In support of such contention, reliance is placed on the communication dated 26.5.2011 of the UGC, indicating that the Page 32 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 university shall not have any affiliated colleges. Further reliance is placed on Section 4 of the handbook inasmuch as, the petitioner, is not possessing the eligibility criteria about the bachelor degree, i.e. Bachelor of Design from any university or institute recognised by law in India.

28. So far as the grounds raised in the affidavit-in-reply and the rejoinder, this Court is in full agreement with the contention raised by the learned advocate for the petitioner that the college will have to defend its action on the basis of the orders that it has passed and cannot add or improve its stand by filing affidavits. The Apex Court, in the case of Dipak Babaria (supra), in paragraph 64, has observed thus:

"64. That apart it has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back in Commr. of Police, Bombay v. Gordhandas Bhanji in the following words:- (AIR p. 18, para 9) "9. ... Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

This proposition has been quoted with approval in paragraph 8 by a Constitution Bench in Mohinder Singh Gill vs. Chief Election Commr. wherein Krishna Iyer, J. has stated as follows:- (SCC p.

417) "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get Page 33 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 validated by additional grounds later brought out."

Similarly, the Apex Court in the case of Opto Circuit India Ltd. (supra), in paragraph 12 has held and observed thus:

"12. The action sought to be sustained should be with reference to the contents of the impugned order/communication and the same cannot be justified by improving the same through the contention raised in the objection statement or affidavit filed before the Court. This has been succinctly laid down by this Court in the case of Mohinder Singh Gill & Another vs. The Chief Election Commr. as follows: (SCC p. 417, para 8) "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji: (SCC p. 1095, para 9) '9. ... Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.' Orders are not like old wine becoming better as they grow older:"

29. Undeniably, the university is established by the law enacted by the State legislature, i.e. Shri Venkateshwara University Uttar Pradesh Act, 2010. Section 7 provides for powers of the university. Clause (d) of Section 7 empowers the university to grant, subject to such conditions as the university may determine, diplomas or certificate to, and confer degrees or other academic distinctions on the basis of examinations, evaluation or any other method of testing on persons. Clause (j) of Section 7 empowers the university to co-

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C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 operate, collaborate or associate with any other university or authority or institution in India and abroad in such manner and for such purpose as the university may determine. The university is recognised by the UGC. The course B.Des is also specified in the notification dated March, 2014, issued by the UGC "specification of degrees". Sub-section (1) of Section 22 of the Act of 1956 provides for the right of conferring or granting degrees shall be exercised only by a university established or incorporated by, inter alia, a State Act or an institution deemed to be a university under Section 3 etc. Therefore, the university, is well within its right to confer or grant degrees, it being a university established under the State Act.

30. The university, has issued the certificate providing that the university and the college, have collaborated for providing vocational and industrial training to the students enrolled in the design degree course and that the university shall be responsible for all the academic and administrative work related to the registration, enrollment, conduct of examination and the award of degrees. It has also certified that the college serves as a technical collaborator providing design courses across various disciplines. The university, has also issued bona fide certificate to the petitioner, certifying that the petitioner, is/was a bona fide student of B.Des of the university.

31. It is interesting to note that on 21.7.2022, the petitioner, supplied the certificate issued by the university wherein, it has been stated that the university, is responsible for all the academic and administrative work related to the registration, enrollment, conduct of the examination; however, the respondent did not take any exception to the said certificate; in fact, required the petitioner to produce the marksheets and degree certificate with the seal and stamp of the university. Had the respondent any reservation, it would not have accepted the said certificate and rejected the Page 35 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 application of the petitioner. On the contrary, the respondent required the petitioner to submit a letter from the university stating that the course is affiliated to the university and it will provide the marksheets and degree certificate which the petitioner did.

32. At this stage apt would be judgment of the Apex Court in the case of Dr. B.L. Asawa (supra). The action of the Rajasthan Public Service Commission in issuing the impugned communication stating that the appellant therein, was not eligible for being considered for recruitment in the Government Medical Colleges, as he lacked the necessary academic qualifications specified in the advertisement, the application of the appellant, was rejected. The learned single Judge, allowed the writ petition, holding that the Public Service Commission had acted illegally in treating the appellant as not possessing the requisite academic qualifications. The appeal was allowed by the Division Bench, the appellant approached the Apex Court. The issue before the Apex Court was whether the Commission was right in law in excluding the appellant from consideration on the ground that he did not possess the academic qualification prescribed by the relevant clause of the Ordinance of the Rajasthan University Ordinances. The appellant was holder of basic degree of MBBS from the Rajasthan University but, was treated as ineligible for consideration on the ground that the post- graduate degree in Forensic Medicine possessed by the appellant, was not one awarded by the University of Rajasthan and the degree, has also not been recognised by the University of Rajasthan as an equivalent qualification. The Apex Court, in paragraph 11, has observed thus:

"11. A Post-graduate Medical Degree granted by a University duly established by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country.
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C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 In the absence of any express provision to the contrary, such a degree does not require to be specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to any post in such a State. The Division Bench of the High Court was, in our opinion, manifestly in error in thinking that since the Post- graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be treated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the said degree or declaring it as an equivalent qualification..... In the case of a Post-graduate degree in the concerned subject awarded by a statutory Indian University, no recognition or declaration of equivalence by any other University is called for...."

33. Therefore, in the present case, the university, has issued the bona fide certificate, certifying that the petitioner is the student of the university and has also certified that it is responsible for all academic and administrative work related to the registration, enrollment, conduct of examination and award of degree. Moreover, the university, has now also issued the marksheets and provisional degree certificate containing seal and stamp of the university. Except raising objection, nothing has been placed on record that the university is not competent to issue the degree certificate and/or marksheets. While cancelling the admission, no detailed order is expected to be passed by the respondent; however, from the contents of the e-mails exchanged between the petitioner and the respondent, there was never an objection raised by the respondent that the collaboration of the university with the college, cannot be accepted. In fact, the petitioner was asked to produce the document to prove the collaboration of the batch of the petitioner, i.e. 2018-22 and also to submit the marksheets of all the semesters issued by the university. Therefore, what was required by the respondent was the marksheets or degree certificate issued by the university and which, has been provided by the petitioner. The respondent, has been changing its stand, possibly owing to lack of clarity in the instructions and the handbook.

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C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022

34. Adverting to the judgments cited by the learned advocate for the respondent, it is to be stated that the said judgments, cannot be made applicable to the facts of the present case. In the case of A.P. Christians Medical Educational Society (supra), the appellant therein invited applications from the candidates for admission to the MBBS course when the authorities of the university, published a notification informing the public in general and the student community in particular that the university had neither permitted nor granted affiliation in the MBBS course to the said institution and whoever seeks admission, will be doing so at his or her own risk. The State Government did not permit the appellant therein to start a private medical college as per the policy of the government so also the Medical Council of India. Therefore, clearly, the appellant therein, was not affiliated to any university. Therefore, in absence of any affiliation, no relief was granted to the students who have been admitted into the MBBS course. In the said background, the Apex Court, dismissed the appeal by the appellant. Therefore, there was neither any application nor any recognition granted by the university, government and the Medical Council of India. So is not the facts of the present case.

35. In another judgment in the case of State of Tamil Nadu vs St. Joseph Teachers Training Institute (supra), the Apex Court, has deprecated the practice of admitting the students by unauthorised educational institutions and then seeking permission for permitting the students to appear at the examination, has been looked by disfavour. In the facts of the present case, as discussed hereinabove, the petitioner is a student of the university and who has been issued marksheets, certificates etc. by the university which, would be in conformity with sub-section (1) of Section 22 of the Act of 1956. The respondent, if had any confusion about the Page 38 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 university issuing the marksheets and certificate, it could have approached the university and sought clarification; however, no such exercise has been undertaken and straightaway, the candidature of the petitioner, has been cancelled.

36. Reliance is placed on the communication dated 26.5.2011 according to which, the university shall not have any affiliated colleges. As discussed, the candidature of the petitioner, is cancelled on the ground that the petitioner, has not submitted the certificates/degrees issued by the university. However, apt would be judgment of the Apex Court cited by the learned advocate for the petitioner in the case of Amazon.Com NV Investment Holdings LLC (supra) wherein, the Apex Court, has held and observed that no order bears the stamp of invalidity on its forehead and has to be set aside in regular court proceedings as being illegal. Reference has been made to earlier judgments wherein, it has been held that even if an order is later set aside as having been passed without jurisdiction, for the period of its subsistence, it is an order that must be obeyed. In the present case, nothing has been placed on record, which would be inconsistent with the provisions of the Act of 1956 vis-a-vis Shri Venkateshwara University Uttar Pradesh Act, 2010. Therefore, this Court, refrains itself from entering into the arena as to whether the university has adhered to the communication dated 26.5.2011 or not. What has been stated in the affidavit-in-replies filed by the respondent was never an issue when the e-mails were exchanged between the petitioner and the respondent and therefore, to justify the action, would be impermissible.

37. In view of the above peculiar facts of the case, the action of the respondent, cancelling the candidature, deserves to be quashed and set aside and is hereby quashed and set aside. The respondent, is directed to take necessary steps to grant admission to the Page 39 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022 C/SCA/14583/2022 CAV JUDGMENT DATED: 23/09/2022 petitioner as per her merit, forthwith.

38. The petition, is accordingly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI Page 40 of 40 Downloaded on : Fri Sep 23 22:19:00 IST 2022