Sanjay Yadav vs MD University

Rakesh Garg, J.—Appellant filed the instant suit alleging that as per the prospectus for admission to B.Ed. Regular Course for the session 2002-03 issued by Rao Birender Singh College of Education, Rewari, he was eligible for Group 2 category, and thus, he applied for admission to the said Course, however, he was informed that he was not eligible for admission. Thereafter, the appellant approached the respondent-University and prayed that he be allowed to appear in the entrance test. However, he was not allowed to appear in the entrance test, and thus, he filed the instant suit seeking declaration against the respondent-University to the effect that he was eligible to appear in the entrance test for admission to B.Ed. Regular Course and that letter dated 23.05.2002 issued by the respondent-University was illegal. Further mandatory injunction was sought directing the respondent-University to allow the appellant to appear in the entrance test for admission to B.Ed. Regular Course or to hold fresh entrance test for him. The suit was contested on behalf of the respondent- University submitting that for appearing in the entrance test of B.Ed. (Regular) admission for the session 2002-03, a candidate was required to secure 45% marks in the Bachelor''s/Master''s Degree with at least one school subject at the Graduation level. It was further submitted that on receipt of admission form, it was discovered that the plaintiff-appellant was not possessing the requisite percentage of marks and thus, he was rightly declared ineligible vide letter dated 23.05.2002 and his admission form was rightly rejected because he had secured 43.1% marks in B.A. and 44.33% marks in M.A.

It will not be out of place to mention at this stage that the appellant sought interim relief in the Civil Suit for allowing him to appear in the entrance test; and the trial Court vide order dated 15.06.2002 rejected such prayer of the appellant.

However, on an appeal filed on behalf of the appellant, Additional District Judge-I, Rohtak vide his order dated 07.09.2002 allowed him admission subject to the final decision of the suit.

It is also relevant to notice here that Civil Revision No. 5615 of 2002 challenging the aforesaid order dated 07.09.2002 of the Additional District Judge-I, Rohtak, filed by the respondent-University was also dismissed by this Court vide order dated 23.01.2003. Not only this, Civil Appeal No. 5219 of 2003 challenging the aforesaid order dated 23.01.2003 of this Court was also dismissed by Hon''ble the Supreme Court vide its order dated 22.03.2007 observing as under :

"Heard the learned counsel for the parties.

In the facts and circumstances of the case, we are not inclined to go into the merits of this appeal as the main suit is still pending and the present appeal has been filed against the interim order. Accordingly, the civil appeal is disposed of, leaving the question of law open to be decided in an appropriate case.

Let the hearing of the suit be expedited.

The impugned judgment shall not be treated as precedent."

On the basis of the aforesaid order, the appellant was admitted to the Regular Course of B.Ed, and he further completed the Course and had also undertaken the examination held for the session 2002-03, however, his result was not declared.

At this stage, it may also be noticed that the Civil Suit of the appellant was dismissed vide judgment and decree dated 23.04.2009. Even the first appeal filed on his behalf was also dismissed by the first appellate Court vide its judgment and decree dated 25.11.2009.

Both the aforesaid judgments and decrees of the courts below are under challenge in this appeal at the behest of the plaintiff-appellant.

Noticing the contentions raised before this Court, the following order was passed on 03.02.2012 :

"Plaintiff has fulfilled the eligibility of appearance in B.Ed, examination as per the prospectus of Rao Birendra College of Education, Rewari, requiring that a person possessing 45% in graduation or holding a Masters degree in Art or Commerce with at least one school subject at the graduation level would be eligible to take the exam.

The appellant was granted interim relief to appear in the examination, prima facie observing that the communication dated March 13, 2002 by the M.D. University to all the Colleges of Education affiliated to the University with a direction that a correction be incorporated that 45% marks were also required for a person holding Masters degree. Though the said letter conferred ineligibility upon the appellant but the same having not been incorporated in the prospectus, the appellant was permitted to take the exam on the basis of an interim order which was upheld till Supreme Court. Copy of the orders passed by the High Court and the Supreme Court are annexures P-2 and P-3, respectively.

Counsel for the appellant has further submitted that the condition of a post graduate obtaining 45% marks for taking entrance exam has now again been withdrawn w.e.f. year 2005 and that a person having 33% marks in graduation or in post graduation is now eligible. It has been contended that the letter dated March 13, 2002, in the above said circumstances cannot stand to prejudice the rights of the appellant who has already taken examination of both the years of the course but the result of the appellant has been with-held.

Notice of motion for May 9, 2012.

Records of the case be summoned."

At this stage, it may be noticed that though the respondent-University is still disputing eligibility of the appellant for admission to the B.Ed. Regular Course, however, the fact remains that the appellant was permitted to take examination on the basis of an interim order which was upheld till Hon''ble the Apex Court. It is further not in dispute that there was no order restraining the respondent - University to declare result of the examination taken by the appellant and in view thereof, this Court vide its order dated 21.03.2014, directed the respondent-University to produce result of the appellant in a sealed cover, and thereafter, on 28.03.2014 this Court passed the following order :

"Learned counsel for the respondent has produced result of the appellant in a sealed cover, which has been opened and perused, and the same is taken on record.

However, a perusal of the mark-sheet does not indicate as to whether the appellant has passed, failed or got reappear in any subject.

Let an affidavit be filed on behalf of the respondent giving necessary details.

List on 4th April, 2014.

To be shown in the Urgent List."

In pursuance to the aforesaid order, an affidavit has been filed on behalf of the respondent-University, the relevant part of which reads thus :

"3. That in nutshell, the result of the petitioner is lying incomplete due to non-availability of awards in two subjects/papers i.e. Drawing & Painting (Code No. 840) and Gardening (Code No. 846), comprising Practical examination only, as the same are untraceable at this stage. Except for these two practical papers, the petitioner has passed in all the remaining eleven (11) Theory/Practical papers as stated above. In all such cases where the award/answer book of any candidate in any Practical paper, after its receipt, is lost/untraceable or gets destroyed, the University treats them as ''REAPPEAR'' cases and permits them to appear in the said examination/paper, without any fee, when held next, as a special case.

That the deponents further seeks to submit by way of clarification that as per Ordinances of the University governing B.ED. Course, the minimum number of marks required to pass the examination shall be 33% in each subject, written and practical separately, and 40% in the aggregate."

In view of the facts, as noticed above, the respondent- University is directed to declare result of the appellant and further grant him an opportunity in case his result is declared as re-appear in some subjects.

Keeping in view the facts and circumstances of the case, the question as raised on behalf of the respondent-University with regard to the eligibility of the appellant is kept open and left undecided. The appeal is disposed of as above, however, this order may not be treated as a precedent.

CM No. 4283-C of 2014

Application is allowed subject to all just exceptions and the affidavit of Dr. S.P. Vats, Registrar, Maharishi Dayaand University, Rohtak is taken on record.

CM No. 8367-C of 2010

For the reason mentioned in the application, which is supported by an affidavit, delay of 69 days in filing the appeal is condoned.

The application stands disposed of.