Maulana Azad Degree College vs The State of U.P. and Others

Ritu Raj Awasthi, J.—Notice on behalf of opposite party No. 1 has been accepted by the learned Chief Standing Counsel whereas notice for opposite parties No. 2 to 4 has been accepted by Mr. Rajesh Chandra Mishra.

Learned Counsel for the Petitioner submitted that the Petitioner has been given the status of minority institution by the State Government. The controversy as to whether the U.P. Private Professional Educational Institutions (Regulation of admission and fee structure) Act, 2006 is under consideration before the Division Bench of this Court in W.P. No. 440 (MS) of 2010 in which by order dated 22.1.2010 as an interim measure it was provided that the students admitted by the Petitioner institution in the academic session 2009-10 shall continue to study and the Government order dated 15.10.2009 shall not come in their way in getting the examinations conducted for the said students.

It is further submitted that against the said order SLP was preferred, which has been dismissed on 9.9.2011.

Further, by the judgment and order dated 18.5.2011 passed in W.P. No. 1905 (MS) of 2011 it was directed that the students of the minority institutions shall be allowed to appear in the examination conducted by the University. The special appeal preferred against the said judgment was decided on 29.8.2011, in which it has been observed:

In view of all the aforesaid, the position is clear that the minority institutions are a class by themselves, therefore, they are free to admit the students of their choice, of course, subject to the condition that the merits of students cannot be ignored. Moreover, in an identical case of minority institutions being Writ Petition No. 10694 (MB) of 2010 (Muslima Girls Degree College Sir Syed Nagar Moradabad v. State of U.P.) the direction given by this Bench to the university to hold examination for the session 2009-2010 is said to have attained finality on disposal of Civil Appeal No. 7137 of 2011 on 19th August, 2011.

In the premises discussed hereinabove, we do not find any infirmity in the judgment passed by learned Single Judge, which has been passed after considering the law as well as the ratio of various judgments on the point in issue namely the admission to professional courses in minority institution and holding of examination of such students for the zero session 2009-2010.

Learned Counsel for the Petitioner contended that for the academic session 2009-10 the form of the students of the Petitioner institution has been accepted on the basis of the interim order. However, for the academic session 2010-11 the students of the Petitioner institution are again not allowed to fill up the examination forms and appear in the examination, which are scheduled to be held from 12.10.2011. It is submitted that the State Government has issued the impugned Government Order dated 6.9.2011, which has been made applicable for the academic year (B. Ed course), 2010-11 and according to the said Government Order the Petitioners are supposed to take the students from the counselling. The contention is that firstly, the said Government Order can not be made applicable retrospectively on the minority institutions, when for the academic session 2010-11 the admissions have already been taken by the Petitioner-institution and secondly, the U.P. Private Professional Educational Institutions (Regulation of admission and fee structure) Act, 2006 is not applicable on the minority institutions.

Learned Counsel appearing for the University on the other hand submitted that in fact the Petitioner institution has been granted affiliation only on 4.2.2011 and as such the required days of teaching classes have not been completed by the students and therefore, they can not be permitted to appear in the examination. Other submission is that the minority institution can be permitted to fill up only 50 percent of the seats directly and 50 percent seats through State Counselling. The said condition is also provided in the affiliation order.

I have heard counsel for the parties.

Prima-facie, I am of the opinion that the Government Order dated 6.9.2011 can not be made applicable to the minority institutions. The students admitted to the Petitioner-institution for the academic session 2010-11 shall not be denied to appear in the University examination on the basis of the said Government Order.

In this view of the matter, it is hereby provided that the University would not deny to the students of the Petitioner-institution to appear in the B. Ed. examinations 2010-11, on the basis of the impugned Government Order dated 6.9.2011.

The opposite parties pray for and are allowed four weeks time to file counter affidavit. In case counter affidavit is filed, Petitioner may file rejoinder affidavit within two weeks, thereafter.

List thereafter.