Bimal Maiti vs University Of Kalyani & Ors.

The writ petition has been listed under the heading ‘To Be Mentioned’ at the instance of petitioner since further interim order he is seeking in

view of ensuing 2nd semester examinations in May, 2018. It has been taken up for hearing upon consent of parties. Mr. Chaudhuri, learned advocate

appears on behalf of Kalyani University. Pursuant to direction made in order dated 7th February, 2018 he produces records regarding admission tests

in relation to, inter alia, petitioner. Page 40 of writ petition is also a document containing information regarding performance of, inter alia, petitioner in

the admission tests procedure conducted by the University.

Mr. Choudhuri submits, even though second semester examinations are to commence from 18th May, 2018, petitioner should not be granted a further

interim order of being allowed to appear in such examinations. Though he had wanted to take the first semester examination, he was not allowed to do

so. He has been continuing with course study under directions made in order dated 15th September, 2017. He relies on several decisions - two of

Supreme Court, two of this Court, one of a Division Bench and the other by a learned single Judge. The decisions are :-

i) Guru Nanak Dev University vs. Parminder Kr. Bansal and another reported in (1993) 4 SCC 401 as also AIR 1993 SC 2412. In that case, Supreme

Court found that High Court by its interim orders had directed admission of two respondents to internship course with effect from 1st April, 1992, on

which date, admittedly, they did not possess the required eligibility. They had not passed the MBBS examination. Inter alia, on those facts Supreme

Court said as follows :-

“6. Sri Gambhir is right in his submission. We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite

often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, ill-

conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is

subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to

the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later

when serious complications might ensue from the interim order itself. In the present case, the High Court was apparently moved by sympathy for the

candidates than by an accurate assessment of even the prima facie legal position. Such orders cannot be allowed to stand. The Courts should not

embarrass academic authorities by itself taking over their functions.â€​

(ii) State of Tamil Nadu and others versus St. Joseph Teachers Training Institute and another reported in (1991) 3 SCC 87. This case reached

Supreme Court on some Teachers’ Training Institutions in Tamil Nadu not having been accorded recognition by Education Department of

Government of Tamil Nadu. In that context a passage is extracted from judgment :-

“ … … permission was granted to the students of an unrecognised institution to appear at the examination, it would amount to encouraging and

condoning the establishment of unauthorised institutions. The court declared that the jurisdiction of this Court under Article 32 or of the High Court

under Article 226 of the Constitution should not be frittered away for such a purpose. In A. P. Christians Medical Educational Society v. Government

of A. P. a similar request made on behalf of the institution and the students for permitting them to appear at the examination even though affiliation

had not been granted, was rejected by this Court. The court observed that any direction of the nature sought for permitting the students to appear at

the examination without the institution being affiliated or recognised would be in clear transgression of the provision of the Act and the regulations.

The court cannot be a party to direct the students to disobey the statute as that would be destructive of the rule of law. The Full Bench noted these

decisions and observations and yet it granted relief to the students on humanitarian grounds. Courts cannot grant relief to a party on humanitarian

grounds contrary to law. Since the students of unrecognised institutions were legally not entitled to appear at the examination held by the Education

Department of the government, the High Court acted in violation of law in granting permission to such students for appearing at the public

examination. The directions issued by the Full Bench are destructive of the rule of law. Since the Division Bench issued the impugned orders following

the judgment of the Full Bench, the impugned orders are not sustainable in law.â€​

iii) Judgment dated 15th May, 2014 in AST 225 of 2014 (The Registrar, The University of Calcutta & Anr. vs. Subrata Mondal & Ors.). A Division

Bench of this Court while dealing with appeal from an interlocutory order found, it was apparent that the qualification attained by the appellant before

it is not recognized one by the UGC and University concerned even if it was held to be recognized University, was not allowed to impart education of

campus/study centre. Thus, in the considered opinion of the Division Bench, on the basis of such qualification the writ petitioner therein could not have

secured the admission at all.

(iv) Judgement dated 29th April, 2016 in W. P. 8292 (W) of 2015 (Chayanika Bhattacharya vs. University of Calcutta & Ors.) delivered by a learned

single Judge of this Court. Mr. Choudhuri relies on, inter alia, the following passage in the judgment :-

“The petitioner does not come within the first limb of the qualification. He qualifies as a master degree holder provided the Master degree held by

him is valid. The respondent no.6 is a university established by the Kavikulaguru Kalidas Sanskrit Vishwavidyala (University) Act, 1997.â€​

Mr. Gupta, learned advocate appears on behalf of UGC and relies on paragraph 8 of the affidavit-in-opposition filed by him. Reliance in that

paragraph of the affidavit has been placed on judgment of Supreme Court in the case of Prof. Yashpal & Anr. vs. State of Chhattisgarh & Ors.

reported in (2005) 5 SCC 420. Mr. Gupta relies on paragraphs 55, 60 and 64. List on 10th May, 2018 for petitioner to be heard in reply.