CW 9434/07 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.9434/07 Manu Mittal Versus Vice Chancellor Examination & Ors. DATE OF ORDER : 26/03/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Ravi Chirania, for petitioner Ms. Ashish Joshi, for respondents *** Petitioner, who is a student of B.E. [Automobile] Degree Course when not permitted to appear in 7th Semester, he approached this court by filing instant petition. Petitioner did his Senior Secondary Examination from Doon International University, Raipur, Chhatisgarh and his result was declared on 5th July, 2004 [Ann.1]. All India Council for Technical Education, which is a statutory body created under AICTE Act, 1987 in pursuance of Sec.10(o) of the Act, 1987, laid down guidelines for admissions to Engineering Degree and Diploma Programmes. In terms of Para 1.1 qualification for admission of general category students, is as under: “1.1 Qualification for Admission of General Category Students The minimum qualification for admission to degree programmes in Engineering should be a pass in the 10+2 (Senior Secondary) CW 9434/07 [2] Examination with a minimum aggregate of 60 per cent marks in Physics, Chemistry and Mathematics obtained in a single sitting. The duration of degree programme in Engineering will be 4 years after 12th standard. This will apply to cases where admissions are based on the marks in the qualifying examination and not on the basis of entrance tests.” Fulfilling conditions of eligibility which is Senior Secondary Examination, petitioner took admission in B.E. Degree Course against management seats in Arya College of Engineering & Information Technology in July, 2004. However, petitioner was permitted to appear upto 6 semester by the University of Rajasthan in the schedule of examinations held from time to time. When he was not permitted without any reason or rhyme in 7th Semester, he approached this court by filing instant petition and under interim orders dt.20th December, 2007 & 26th June, 2008, he was permitted to appear in 7th & 8th Semester. However, it has been informed that there are certain due papers in which he still has to appear to complete his full course of four years of B.E. Degree Course. It has been averred by petitioner that one Saurabh Arya who too passed out 12th from Doon International University, Raipur and joined B.E. Degree Course in another institution namely; Jaipur Engineering College, CW 9434/07 [3] which is also affiliated by University of Rajasthan, was permitted to appear in all the semesters and University also never raised any objection. Counsel for petitioner submits that Doon International University, Raipur, Chhatisgarh was University created under the Act. However, its very creation has been nullified by apex court in Prof. Yashpal Vs. State of Chhatisgarh [2005 (5) SCC-420]. But, interest was safeguarded of all such students who were undergoing studies at the relevant point of time and as per Para 64 of the judgment [supra] atleast persons like the petitioner who acquired qualification much prior to judgment of apex court, their interests are required to be safeguarded. Counsel further submits that once he passed out his Senior Secondary from University under statute, such degrees are recognized for all practical purpose as also informed by HRD, Government of India to the Vice Chancellor vide its communication dt.15th June, 2004 and as such degree obtained by the petitioner prior to the judgment [supra] was recognized degree for all CW 9434/07 [4] practical purposes and the respondent-University in no manner can be said to be justified in holding that it was not recognized atleast on the basis he took admission in B.E. Degree Course. Counsel further submits that apart from merits of the matter when similarly situated candidate namely; Saurabh Arya has been permitted by the University itself to continue his B.E. Degree Course who passed out his Senior Secondary Examination along with petitioner from Doon International University, no two standards could have been adopted by the respondents and this action of the respondents is in violation of Art.14 of the Constitution of India. Respondent-University has filed their reply where it has been averred that such students, particularly, the petitioner who has taken admission in B.E. Degree Course passed his 12th Examination from Doon International University, Raipur, Chhatisgarh which is not recognized by the University of Rajasthan, as such, will not be enrolled and permitted to appear in the examination and institution was informed vide letter dt.6th January, 2005 [Ann.R/1]. Reminder CW 9434/07 [5] was also sent to the institutions vide Ann.R/2 dt.28th September, 2007. It has also been averred that so far as instance of another applicant Saurabh Arya is concerned, when matter came to the notice of the authorities and equivalence committee has recommended for cancellation of his admission and it is presently pending with the Vice Chancellor. Counsel for respondents further submits that if the degree obtained by the petitioner was not recognized by the University of Rajasthan, his very admission in B.E. Degree Course was in contravention of Ordinance of the University and even if other student has been permitted that will not give any right to the petitioner, particularly, when his admission itself was contrary to the Ordinance of University of Rajasthan. Counsel further submits that under Ordinance 330 Chapter XL list of equivalence of examination published by University, does not contain Doon International University, Raipur, Chhatisgarh. In absence whereof, such institutions to whom equivalence has not been accorded by the University of Rajasthan, such CW 9434/07 [6] persons cannot get admission in the institutions which are affiliated to University and that being so, the very admission of the petitioner is apparently erroneous and despite institution at the very threshold was informed vide communication dt.6th January, 2005 [Ann.R/1] & reminder dt.28th September, 2007 [Ann.R/2] atleast University cannot be said to be at fault and were justified while taking decision in not permitting the petitioner to appear in 7th & 8th Semester of B.E. Degree Course. I have heard counsel for parties and perused the material on record. It is not disputed that the petitioner did his Senior Secondary from Doon International University, Raipur, Chhatisgarh which was University created under Chhatisgarh Nizi Kshetra Vishwavidyalaya [Sthapana Aur Viniyaman] Adhiniyam, 2002 a University created under law at the relevant point of time when petitioner did his Senior Secondary Examination in July, 2004. Adhiniyam, 2002 under which various Universities were constituted by the State of Chhatisgarh came for consideration before Hon'ble Apex Court and finally in judgment CW 9434/07 [7] [supra] held that whole scheme of the impugned Act, 2002 and especially effect of Secs.5 & 6 notifying as many as 112 Universities were wholly ultra vires of the Constitution. However, while declaring the Act, 2002 itself to be ultra vires, Hon'ble Supreme Court safeguarded interest of such students who were undergoing their studies at the relevant point of time as referred to in Paras 64 & 65 of the judgment [supra]. Relevant Paras 64 & 65 whereof, are reproduced as under: “As a consequence of the discussion made and the findings recorded that the provisions of Sections 5 and 6 of the Act are ultra vires and the Gazette Notifications notifying the Universities are liable to be quashed, all such Universities shall cease to exist. Shri Amarendra Sharan, learned Additional Solicitor General has submitted that the UGC had conducted an inquiry and it was found that most of the Universities were non-existent, but the report was not placed before the Court as the complete exercise had not been done. Learned counsel for the Universities have seriously disputed this fact and have submitted that the Universities are functioning. We have not gone into this question as it is purely factual. In order to protect the interests of the students who may be actually studying in the institutions established by such private Universities, it is directed that the State Government may take appropriate measures to have such institutions affiliated to the already existing State Universities in Chhattisgarh. We are issuing this direction keeping in mind the interest of the students and also Sections 33 and 34 of the Act, which contemplate dissolution of the sponsoring body and liquidation of a University whereunder responsibility has to be assumed by the State Government. It is, however, made clear that the benefit of affiliation of an institution shall be CW 9434/07 [8] extended only if it fulfills the requisite norms and standards laid down for such purpose and not to every kind of institution. Regarding technical, medical or dental colleges, etc. affiliation may be accorded if they have been established after fulfilling the prescribed criteria laid down by the All India Council of Technical Education, Medical Council of India, Dental Council of India or any other statutory authority and with their approval or sanction as prescribed by law. In view of the discussions made above, Writ Petition (C) No.19 of 2004 (Prof. Yashpal & Ors. v. State of Chhattisgarh & Ors.) and Writ Petition (C) No.565 of 2003 (Gopalji Agarwal Vs. Union of India & Ors.) are allowed and provisions of Section 5 and 6 of the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 are declared to be ultra vires and are struck down. As a consequence of such declaration, all notifications issued by the State Government in the Gazette in the purported exercise of power under Section 5 of the aforesaid Act notifying the Universities (including respondent nos.3 to 94) are quashed and such Universities shall cease to exist. If any institutions have been established by such Universities, steps may be taken for their affiliation to already existing State Universities in accordance with the direction contained in paragraph 45 above. Parties would be at liberty to approach the High Court if any dispute arises in implementation of this direction. All Writ Petitions, Civil Appeals and Transferred Cases filed by the private Universities are dismissed.” It is relevant to mention that before Act of 2002 was declared to be ultra vires by Hon'ble Apex Court, petitioner passed out his Senior Secondary Examination in July, 2004 and took admission in B.E. Degree Course in July, 2004 in the institution which is affiliated to University of Rajasthan. CW 9434/07 [9] Sec.3 of University Grants Commission Act, 1956, clearly contemplates that all the institutions for higher studies other than Universities, which are created under the statute, are deemed to be recognized for all practical purposes and this was clarified to the Vice Chancellor, Doon International University by the Ministry of Human Resource Development as is evident from communication dt.15th June, 2004. Even as per Ordinance 330, such institutions those who are not applied for recognition of their degree, are to be referred to equivalence committee for consideration and provisionally recognition to such University/Board is being granted automatically and final decision will be taken by equivalence committee of the University after thorough examination of the relevant rules and regulations and under Reg.44-B which is appended to Chapter XL higher Senior Secondary Examination conducted by all the Statutory Indian Boards are recognized for the purpose of admission to higher courses of study by the University and their list has been enclosed herein. So far as present institution from where the petitioner passed out his Senior Secondary is CW 9434/07 [10] concerned, question could not have arisen for the equivalence committee to examine in detail as provided under Ordinance 330, may be for the reason that before matter could come up for its thorough examination to equivalence committee of the University. Apex Court declared the Act itself to be ultra vires vide its judgment dt.11th February, 2005. In the facts of instant case as per Ordinance 330 of the University while examining at the stage of provisional recognition/equivalence it is not to be examined in detail. Question arises if petitioner did his Senior Secondary from so-called University created under statute which might have been declared by apex court at a later point of time to be ultra vires to the provisions of the Constitution and if the apex court has protected right of all such students who were undergoing studies, in opinion of this court, the petitioner is also entitled for the same protection and denial whereof will cause prejudice to him and he atleast was in a better position in comparison to those who were undergoing studies at the relevant of time. This fact is further fortified from the material CW 9434/07 [11] which came on record that one Saurabh Arya who too passed out his 12th from same University and took admission in B.E. Degree Course in a institution recognized/approved by the University of Rajasthan and no objection was raised and while filing reply averment has been made that equivalence committee has taken decision and matter has been recommended for its cancellation. But nothing has been placed on record to substantiate and apart from it, reply was filed by the respondents on 19th July, 2008. Even 19 months have passed by now and still counsel is not a position to inform that what decision has been taken by the University in the case of Saurabh Arya so far and at the same time, petitioner was also permitted to undergo his studies upto 6 semesters and was never informed by the University and letter which has been sent to the College, of which reference has been made of Ann.R-2/1 & 2/2 such communication was never made to the petitioner which in no manner can be detrimental to him. Apart from it, the petitioner has passed out his 12th from the University which was created with the statute and any later development which has taken place will not deprive him of his right conferred on qualifying the examination which at the relevant CW 9434/07 [12] point of time was under law and valid for all practical purposes. Consequently, writ petition stands allowed. Respondents are directed to treat the petitioner a regular student of B.E. Degree Course of the academic session 2004-05 and shall be permitted to appear in his due papers and on qualifying the same, his result may also be declared in accordance with law. No costs. [AJAY RASTOGI], J. FRBOHRA9434CW07 26-3.doc