1. Heard Mr. Sanjeev Singh and Mr. Suresh Bahadur Singh, learned counsel for the petitioners, Mr. Rohit Pandey, learned counsel for the respondent-University and Dr. Amar Nath Singh, learned Standing Counsel for the State-respondents.
2. Primarily this writ petition has been filed by the petitioners for the ensuing relief:
"(a). Issue a writ, order or direction in the nature of certiorari calling for the records and quashing the impugned decision dated 15.01.2021 taken by the High Level Deans Advisory Committee as well as the impugned notification dated 16.01.2021 issued by the respondent nos. 2 and 3 (Annexure No. 7 to the writ petition);
(b). Issue a writ order or direction in the nature of mandamus commanding the respondent University to allow the petitioners to continue with their Ph.D. Course Programme in view of their admissions already granted;
(c). to issue such other and further appropriate writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case;
(d). to award the cost of petition in favour of the petitioner."
3. Consequently, an amendment application has been filed on behalf of the petitioners in the contemporaneous writ petition for pursuing auxiliary relief, on which following order was passed by the Court on 5th August, 2021:-
"Re: C.M. Amendment Application No.02 of 2021
Amendment application is allowed.
Learned counsel for the petitioners is directed to carry out necessary amendment within three days.
Re: Writ Petition
As per the amendment, vires of Clause 3.1 (b) of Deen Dayal Upadhyay, Gorakhpur University Research Ordinance, 2018 (Minimum Criteria and Procedure for Research Degree-P.hd.) has been challenged, learned counsel for University as well as learned Standing Counsel representing the State are granted three weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within one week thereafter.
List this matter after four weeks."
Pursuant to the above order, learned counsel for the petitioners has sought following prayer:
"ia). to issue a writ, order or direction that Clause 3.1 (b) of Deen Dayal Upadhyaya Gorakhpur University Research Ordinance, 2018 (Minimum Criteria and Procedure for Research Degree Ph.D) be declared, as ultra-vires and for the same reasons, be quashed only to the extent that it prescribes the minimum marks of second division under graduate degree for becoming eligible to qualify admission to its Ph.D. Course (Annexure-8 to the writ petition)."
4. As the rudimentary realities and the permissible facets intricate are indistinguishable in both the writ petitions, they have been amalgamated and heard together and are being decided by this conjoint verdict. The particulars chronicled in Writ -C No. - 4529 of 2021 (Ms. Suneeta Bharti and 3 Others Versus State Of U.P. And 2 Others) are being canned to be the leading case.
5. According to the petitioners, the realistic milieu of the case is as follows:
Petitioners belong to District Gorakhpur. They being prospective candidates were pursuing admission in Pre-Ph.D. Course for the Session 2019-2020 of which advertisement/news item was issued by the Deen Dayal Upadhyay University, Gorakhpur (for short "respondent-University"). The said news item/advertisement contained the broad-spectrum rules and directives issued by the University with regard to the Research Eligibility Test (RET) for the session 2018-2019, in which some conditions existed for the Session 2019-2020 as well. The said general rule and instructions were issued in light of the Ordinance-2018 issued by the respondent-University orchestrated under its first Statutes. The said general rules and instructions also enclosed the examination schedule for the Pre Ph.D. course for which, time schedule for online application being filled up, was from 4th January, 2019 and the same was to come to an end on 25th January, 2019. The examination was to be held in the second and third week of month of February, 2019. The academic minutiae are mirrored in the application forms of the petitioners, which encompasses the percentage obtained in undergraduate and post-graduate examinations. Petitioner no.1 had applied for the Pre Ph.D. course in the subject of Hindi, petitioner no.2 in the subject of Mathematics, petitioner no.3 in the subject of Commerce and petitioner no.4 in the subject of Sanskrit, respectively.
Clause 5 B ( ?) of the general rule and instructions lays down that a candidate seeking admission in the Ph.D. Course will be eligible only if he/she has notched second division marks in undergraduate course 'or' the appropriateness laid by the University Grants Commission (hereinafter referred to in short, 'UGC') issued from time to time, which thus, makes a candidate eligible for the said course, who accomplishes either of the same.
It is the case of the petitioners that since they satisfied the minimum eligibility laid by the UGC in its notifications dated 5th May, 2016 and 28th August, 2018 known as "University Grants Commission (Minimum Standards and Procedure for Award of M.Phil/Ph.D Degrees), Regulations, 2016 (herein after referred to as the "Regulations, 2016") and its (1st Amendment) Regulations, 2018, were, thus, eligible as per its qualifications.
Clause-3 of the Regulations, 2016 lays down the eligibility benchmarks for admission to Ph.D programme.
Clause 2 of the Regulations, 2016 read with first amendment, 2018 lays down that a candidate is eligible for admission to Ph.D. programme, if he/she scores second division marks in post-graduate level, as such, if he or she has scored less than 2nd division marks in undergraduate course then also is eligible for admission in the course.
Further, it is the case of the petitioners that in view of the eligibility laid down by the UGC vide their Regulations, the petitioners were settled admission in the Ph.D. Course on the metier of their having attained second division marks in post-graduate course, as they had not scored second division marks in their undergraduate course. The UGC Regulations, which was amended in 2018, exist as on date, as per the superlative acquaintance/information of the petitioners to stipulate the eligibility of the candidate seeking admission in Ph.D. Programme Course to possess second division marks in undergraduate course, which limits the same having scored only in post graduate course itself and not otherwise. The examination for the pre Ph.D. Course to be held by the University could not be held in the month of February, 2019 and the same was held in the first week of March, 2019. After result being avowed in the month of May, 2019, interviews were held in the month of July and August, 2019 for each and every department individually, as per their expediency. After the result of the interview, on deposit of the requisite fees, which, in the facts of the present case, were deposited by the petitioners in the month of February, 2020, the candidates including the petitioners were granted admission, and the curriculums started subsequently. The copies of the eligibility certificates and attendance sheets have been enclosed as Annexure-4 to the writ petition.
According to the petitioners, the Pre-Ph.D. Course Examination was scheduled to be held in the month of March-April, 2021 and the students, who pass the said examination, would have been granted admission in regular Ph.D. Course, which is of approximately 3 to 4 years. However, due to the Pandemic (Covid-19), the course was disordered and the same recommenced in the third quarter of year 2020. Further vide office order dated 24.11.2020 issued by the Registrar, on the application of the Ph.D. Course students and also in view of the order of the Vice-Chancellor dated 10.11.2020, a committee of four members was established under the Chairmanship of Professor Dwarika Nath, Head of Philosophy Department along with 3 other members. The said committee acquiesced its report dated 03.12.2020 with unblemished endorsement that the UGC Regulations, 2016 should be made germane, taking into contemplation the interest of the students as well as the prosperity of the area, society and the University as a whole. However, flouting the recommendation of the Committee dated 03.12.2020 (without any reasons recorded), the Vice-Chancellor, under his Chairmanship, held a meeting on 15.01.2021 of the High Level Deans Advisory Committee, in which a pronouncement was taken that the students having enrolled in the Ph.D. Programme Course, in defilement of the Ordinance-2018, their admissions stand negated, without affording any opportunity to them. The said impugned pronouncement of the High Level Deans Advisory Committee dated 15.01.2021, has not been provided to the petitioners, as such, the same has not been conveyed on record before this Court. In the said meeting of the High Level Deans Advisory Committee dated 15.01.2021, it was also determined that the prospective students, seeking admission in the Ph.D. Programme Course and who do not possess the minimum eligibility, as per the Ordinance-2018, should not be granted admission, in the said course, if not granted till date. Further, it was also resolved that persons accountable, for such admissions, should be held answerable and explanation and clarification should be sought from them. In light of the decision of the High Level Deans Advisory Committee dated 15.01.2021, the impugned notification dated 16.01.2021 has been issued by the Registrar, after which, the admissions granted to the petitioners stood cancelled, a copy of which has been enclosed as Annexure No. 7 to the writ petition.
6. It is appurtenant to remark here that the general rules and instructions mentioned in the news item/advertisement, which was issued by the respondent-University for Pre Ph.D. Course for the Session-2019-2020 pursuant to which the petitioners applied with regard to Research Eligibility Test of the session 2018-2019, are in light of the Deen Dayal Upadhyay Gorakhpur University Research Ordinance, 2018 and also in light of the report of a Four Members' Committee of the respondent-University dated 3rd December, 2020, which was instituted under the Chairmanship of Professor Dwarika Nath, Head of Philosophy Department, by the order of the Vice-Chancellor of the respondent-University dated 10th November, 2020. The said four Members' Committee in the said report has recommended that the UGC Regulations, which are relevant and instigated, should be made applicable taking into consideration the interest of the students. The copies of the order of the Vice-Chancellor and the report of the said Committee have been enclosed as Annexure Nos. 5 and 6 to the writ petition.
7. It would be efficacious to reproduce relevant paragraphs of the report of the said Committee, which read as follows:
8. Primarily, the existent writ petition has been paraded for quelling the impugned decision dated 15.01.2021 of the High Level Deans Advisory Committee as well as the queried notification dated 16.01.2021 on the ground that the same are in teeth of the Research Eligibility Test general rule and instructions issued in regards to Ph.D. Course Programme by the respondent-University as well as the Regulations issued in this esteem from time to time by the UGC, thus, rendering the same pertinacious as well as fallacious. It has also been itemized in the writ petition that the assailed decision as well as the notification is tangibly proscribed and capricious on the part of the respondent-University. as the same is antagonistic to the UGC Regulations.
9. As the amendment application was filed subsequently, whereby Clause 3.1 (b) of Deen Dayal Upadhyaya Gorakhpur University Research Ordinance, 2018 (Minimum Criteria and Procedure for Research Degree Ph.D) is being confronted, hence, during the progression of argument, succeeding questions have arisen before this Court, which are germane for determining both the writ petitions:-
10. Issue No.1:
(i) Whether the Regulations edged by the UGC are binding upon any State University of India?
(ii) Whether the minimum qualification prearranged by the respondent-University for expansion of edification upto graduate level for Pre-Ph.D./Ph. D. Course is divergent to the Regulations framed by the UGC?
(iii) Where the Regulations framed by the UGC mentioning the minimum qualifications upto Graduate Level for any course or degree is silent, then the Ordinance outlined by a University counseling minimum qualifications shall triumph over the Regulations of the UGC or not?
(iv) Whether the Ordinance mounted by the respondent-University prescribing minimum qualification upto and under-graduate level is in congruence with the Regulations framed by the UGC?
Can the petitioners, who have applied for Pre-Ph.D./Ph.D. degree course, with open eyes, contest the vires of the Ordinance, wherein the minimum qualification for Pre-Ph.D./Ph.D. course is prescribed, after their admissions being found illegitimate and conflicting to the conditions declared in the Advertisement/news item read with Clause-3 (1) (b) of the Ordinance of University,
Whether the University can terminate the admission of the petitioners after some epoch of interval on the liability of its own officials/officers?
Whether UGC Regulations-2016 and 2018 have been embraced by the State Government?
Apart from the above, learned counsel for the petitioners has also raised an issue, that principle of estoppels and acquiescence will apply against the University in the actualities of the present case.
11. Respective Submissions:
In sustenance of the relief, as prayed for in the present writ petition as well as on the issues referred to above, learned counsel for the petitioners have advanced his submissions, which are as follows:
(i) The petitioners had secured admissions in pre-Ph.D. Course for the Session 2019-2020 after appearing in the written examination charted by interview, as such, they had qualified the rigorous assessment undertaken by the respondent-University for the said course.
(ii) The petitioners had also undergone classes, which is patent from the attendance sheets, a copy of which has been enclosed as Annexure-4 to the writ petition.
(iii) Certainly, the petitioners were not 2nd Division in undergraduate course, which was the per-requisite, as per the Ordinance-2018 but the UGC Regulations, in this regard, were silent and as they had appeared in the examination piloted by the respondent-University by no deception or caricature on their part, as their applications divulged having obtained 3rd Division in undergraduate examination, as such, now the respondent-University cannot cancel their admission after such a long interval, which will amount to taking the catbird seat or advantage of the wrong perpetrated by them and the petitioners are at no accountability (also in the event that till date no action has been taken against any of the officials of the respondent-University).
(iv) Further, the norm of estoppels and acquiescence will also apply against the University.
(v) Further, the Ordinance-2018, which fixes second division to be scored by a candidate in under-graduate course for seeking admission to the Ph.D. Course is, thus, haphazard and unconscionable.
Further, the said fixation has no nexus to the object sought to be realized, rather it defeats, as the petitioners are selected candidates, as such, the Ordinance is profoundly erroneous and unmerited, hence the same be declared as ultra-virus.
(vi) Further, this Court under Article 226 of the Constitution of India is a Court of equity and even-handedness, as such, the relief can be molded even if the Ordinance is not professed ultra-virus, as the petitioners have continued in the said course for nearly two years and their admissions, thus, can be protected.
(vii) To draw the consciousness on the aforesaid submissions, the learned counsel for the petitioners has placed reliance upon several judgments of the Apex Court as well as judgment of Single Judge of this Court, which are as follows:
(a) Ran Vijay Singh & Others Versus State of U.P. & Others reported in reported in (2018) 2 SCC 357;
(b) Tridip Kumar Dingal & Others Versus State of West Bengal & Others, reported in (2009) 1 SCC 768;
(c) Rajesh Kumar Daria Versus Rajasthan Public Service Commission reported in (2007) 8 SCC 785;
(d) Rajesh Kumar & Ors. etc. Versus State of Bihar & Ors. etc., reported in (2013) 4 SCC 690;
(e) Vikas Pratap Singh & Others Versus State of Chhattishgarh & Others reported in (2013) 14 SCC 494; and
(f) Ram Naresh Singh And 26 Others vs State Of U.P. And 29 Others, reported in (2018) 3 UPLBEC 2134.
(viii) Thus, in view of the commandment law laid down by the Apex Court and by this Court, the petitioners' entitlement to aegis of their admission, in the atypical particulars of the present case, needs to be examined.
Undeniably, as the petitioners have been selected after undertaking the stipulated procedure (written test followed by interview). There is no caricature or deceit on their part. Having scrutinized their studies fittingly, for about two years, it would be undeserved to tolerate the respondent-University to jettison their admissions by lobbing them out of the course, in view of the ruling laid down by the Apex Court.
(ix) Further, the University-establishments must take an altruistic and public-spirited assessment in the matter, otherwise, it would also be "grave travesty of justice", if the petitioners/students nosedive to get the relief, as prayed.
12. On the other hand, Mr. Rohit Pandey, learned counsel for the respondent-University has advanced his arguments on the aforesaid following issues, which are as follows:
(i) The University Grants Commission (hereinafter referred to as the "UGC") has been established by the enactment of the Central Government being University Grants Commission Act, 1956 (hereinafter referred to as the "Act,1956"). Under Section 26 of the Act, 1956, the Commission is accredited to make Regulations. Under Section 26 (f), the UGC can frame Regulation delineating the minimum criterions of directives for grant of any degree by any University and under Section 26 (g), the Commission can frame Regulation regarding preservation of cannons and harmonization of labor or conveniences in University.
In implementation of aforesaid muscles, the Commission has framed University Grants Commission (Minimum Standards and Procedure for Award of M.Phil/Ph.D. Degrees) Regulations, 2009 and in supersession thereof, the Commission framed Regulations of 2016 (hereinafter referred to as the "UGC Regulations, 2009"), which has been further amended in 2018 being first amendment and second amendment of 2018.
Under Clause-2 and 3 of Regulations, 2016, the Commission has approved minimum eligibility criteria for admission to M.Phil and Ph.D. programme. Under Clause-5, the Regulations provide the modus operandi for admission and Clause- 5.2.2 provides that Higher Educational Institutions shall notify number of seats for admission, distinctive discipline-wise dissemination of available seats, criteria for admission, process for admission, examination centers and all relevant information for the assistance candidates.
Now reverting back to the present substance, it is acknowledged that the question with regard to applicability of UGC Regulations on the University, it is acquiesced that in respect of Central Universities, it is obligatory for those Universities to uphold the guidelines issued by UGC, whereas in respect of State Universities, it has to be first befittingly accepted by the State Government and thereafter, direction is to be dispensed by the State Government to all State Universities to integrate the precise UGC Regulation in the Statute or Ordinances of the concerned University.
The aforesaid issue of applicability of UGC Regulation on the State Universities by adoption came up for contemplation before the Apex Court in the case of Kalyani Mathivanan v. k.v. Jeyaraj and Others (2015) 6 SCC 363, wherein it has been held that unless the UGC Regulations are formally adopted by the State and the Statutes are amended, it cannot be applied ipso facto upon the State Universities.
The aforesaid Judgment of Apex Court was followed by this Hon'ble Court in the case of Amrit Prasad Vs. State of U.P. reported in 2016(1) ADJ, 690.
(ii) The petitioners in this writ petition have applied pursuant to the Advertisement issued by the answering respondent-University for Research Eligibility Test, 2019. In the guidelines and instructions, it has been clearly stipulated that the candidates are required to possess minimum second division marks in graduation. The petitioners have consciously applied pursuant to the advertisement and they themselves placed them in a situation where, at the time of scrutiny of their eligibility, they have been found ineligible on account of not having minimum second division marks in graduation, as per Clause-3.1 (b) of the University Research Ordinances, 2018. The case laws, which have been relied upon in support of the aforesaid submission, are as under:
(a). Ramjit Singh Kardam & Others v. Sanjeev Kumar and Others Civil Appeal No. 2103 of 2020.
(b). Ashok Kumar and Another v. State of Bihar and Others reported in (2017) 4 SCC 357
(c). Madras Institute of Development studies and Another Versus K. Sivasubramaniyan and Others reported in (2016) 1 SCC 454.
(iii) The respondent-University has framed the Deen Dayal Upadhyaya Gorakhpur University Research Ordinances, 2018 (Minimum Criteria and Procedure for Research Degree- Ph.D.), in accordance with the UGC Regulations for admission in Ph.D/M.Phil.
Referring to the case of the Apex Court in the case of R. Chitralekha v. State of Mysore and Others AIR 1964 SC 1823, learned counsel for the respondent-University submits that a State Law providing for such standards, having regard to Entry-66 of List-I, would be struck down as unconstitutional only if the same is found to be so heavy or devastating, so as to wipe out or appreciably abridge the Central field and not otherwise. The Court also pointed out that if a State law prescribes higher percentage of marks for extra-curricular activities in the matter of admission to colleges, it cannot be said that it would be encroaching on the field covered by Entry 66 of List-1. The law is now fairly well settled that while it is not open for the Universities to dilute the norms and standards, as prescribed by the regulatory bodies such as UGC or AICTE, it is always open to the Universities to prescribe enhanced norms.
He further submits that the role of the Universities vis-a-vis the AICTE, the Apex Court has held in Bharathidasan University and Another v. All India Council for Technical Education and Others reproted in (2001) 8 SCC 676, that AICTE is not a super power with a devastating role undermining the status, authority and autonomous functioning of the Universities in areas and spheres assigned to them.
A three Judges Bench of the Apex Court in case of State of T.N. and Another v. S.V. Bratheep (Minor) and Others reported in (2004) 4 SCC 513, wherein this Court held that even the State Government can prescribe higher standards than those prescribed by AICTE.
The above principle was later applied in the case of Universities in Visveswaraiah Technical University & Another Vs. Krishnenedu Halder & Others, reported in (2011) 4 SCC 606, wherein the Apex Court considered the previous decisions and summarized the legal position emerging there-from.
The Apex Court, in its latest judgment of APJ Abdul Kalam Technological University and another v. Jai Bharat College of Management and Engineering Technology and others, Civil Appeal No. 4016 of 2020 held that the powers of the Universities to enhance the norms and standard cannot be doubted.
This Court in the case of Registrar, Chhatrapati Shahuji Maharaj University vs. Vinay Gupta & Others, reported in 2009 (3) ADJ 263, also laid down that the prescriptions by the University of having at least 45% marks in the qualifying examination i.e. graduation course is an additional qualification, which is fully supported by the ratio of the judgments of the Apex Court.
The Punjab and Haryana High Court, while dealing with identical controversy in Civil Writ Petition No. 4294 of 1987 in the case of Shamsher Singh Tyagi Vs. State of Haryana and Jammu and Kashmir High Court in SWP No. 1558 of 2017 in the case of Tanveer Ahmad Vs. Skuast &Others, have also held that the University Grants Commission lays down the minimum standards required and the Universities can prescribe higher qualifications, which are in consonance (not contrary) with the UGC Regulations. The only requirement that has to be followed is that the qualifications prescribed have to be reasonable and attainable by the candidates.
The UGC Regulations prescribes Minimum Standards and Procedure for Award of M.Phil/Ph.D. Degrees. The word "minimum qualification" has been discussed by the Punjab and Haryana High Court in para-11 of the Shamsher Singh Tyagi (supra).
In deduction, it is acquiesced that the respondent-University has prearranged the minimum stipulations for admission to Ph.D. Course in harmony with the UGC Regulations and they are not in desecration to the same. It is within the authorities of the University to counsel rational and realistic higher qualifications to conserve the necessary standard of tutelage in the University.
(iv) The University can terminate the admission of the petitioners, as they do not possess the minimum eligibility criteria as per the Deen Dayal Upadhyaya Gorakhpur University Research Ordinance, 2018. It is further submitted that there stands no estoppel against law, therefore, the University was thoroughly vindicated in annulling the admissions of the students.
The Apex Court in the case of State of Rajasthan and Ors. v. Lata Arun JT 2002 (5) SC 210, examined the cancellation of admission of a candidate to the General Nursing and Midwifery and Staff Nurse Course on the ground that the Respondent did not possess the eligibility criteria. In the said case, initially the High Court had allowed the writ petition and the special appeal filed, against the judgment passed therein, before the Division Bench of the High Court was also dismissed. However, the Apex Court allowed the appeal and held that the High Court was in error in issuing directions to the appellants to treat the respondent as a candidate possessed of all the prescribed qualification and to declare the result.
The Apex Court in the case of A.P. Christians Medical Educational Society v. Government of A.P. reported in (1986) 2 SCC 667, Court observed that the Apex Court cannot by its fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. The Apex Court cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws."
In the case of Gurdeep Singh v. State of J. & K. and Ors. (1986) 2 SCC 667, the Apex Court examined the selection of a candidate, who was ineligible to be admitted. It quashed his selection and made its observations in paragraph 9 of the judgment.
Other relevant case laws, which learned counsel for the respondent-University in support of the aforesaid, has relied upon are as follows:
(a) Rajasthan State Industrial Development vs. Subhash Sindhi reported in (2013) 5 SCC 427;
(b) U.O.I. vs. Godfrcy Philips Pvt. Ltd. reported in (1985) 4 SCC 369.
(v) The countering respondent-University, i.e. Deen Dayal Upadhyaya Gorakhpur University, Gorakhpur has been established under U.P. State Universities Act, 1973. As per Section-7 of the Act, which advocates the control and callings of University, it is provided under sub-Section-1 that it is the authority and responsibility of the University to provide for instruction in such branches of erudition, as the University may think apposite and to make provision for research for furtherance and propagation of awareness.
Sub-Section-3 provides powers and duties of the university to institute degrees, diplomas and other academic distinctions.
Sub-Section-4 provides powers and duties of the University to hold examination and to grant and confer the degrees and diplomas and other academic distinctions.
Sub-Section-6 provides powers and duties of the university to confer honorary degree or other academic distinctions in the manner and under condition laid down in the Statute.
Under Section 51 (2) of Act, 1973, the University is authorised to casing its Ordinances for distinctive matters including (a) admission of students to the University and their enrollment and endurance, as such, (b) the course of study to be laid down for all degrees, diplomas and other academic distinctions of University, (c) the condition under which the students shall be admitted to the examinations, degrees and diplomas of University and shall be entitled for accolade of such degrees and diplomas.
In view of the aforesaid provisions of Act, 1973, it is unequivocal that the University is vested to configure its Ordinances for steering any course of study, which comprises M.Phil and Ph.D. programme. The Clause 5.2.2 of UGC Regulations, 2016 also sanctions to frame the criteria and system for admission by the Higher Educational Institutions.
(vi) The Ordinances of University are enclosed by Expert Academic Body and it is within the especial dominion of academic body to commend certain eligibility criteria for admission. The UGC is consigned with the supremacy to frame Regulation under Section 26 (f) and (g) to outline the minimum principles of Institution to grant of any degree by any University and to standardize the preservation of students and synchronization of work and facilities in University. The parameter framed by UGC recommends only minimum standards and word "minimum" symbolizes the magnitude which should not be depressed and disparaged any further by any authority or the University. The UGC Act and Regulations do not proscribe the University to acclaim any higher standards in eligibility benchmarks for admission in any course of study. The power of the UGC is sourced from Entry-66 of List-1 of the Constitution of India, whereas power of the University is sourced from Entry-25 of List-lll. It has been settled that both admittances have to be read concomitantly and it cannot be read in such a custom to practice an estimation entirely in the matter of admission but if certain recommendations of standards have been made pursuant to Entry-66 of List-1, then those standards will triumph over the standards fixed by the State University in exercise of powers under Entry-25 of List-III insofar as they unsympathetically distress the principles laid down by the Union of India or any other authority operational under it.
In the present case, the UGC has prescribed the minimum standards, therefore, the canons set by the university in eligibility criteria for admission cannot be dubbed as the principles, which undesirably shake the standards laid down by the Union of India. Moreover, the ideals prescribed by the University are robust and rational and cannot be termed in any manner, as illogical and stroppy. In support of the same, the learned counsel for the respondent-University has relied upon the verdict of the Apex Court in the case of State of Tamil Nadu vs. K. Shyam Sundar, Civil Appeal No. 6015-6027/2011.
(vii) The UGC Regulation, 2016 has specificed the minimum eligibility criteria for admission to M.Phil and Ph.D. is to have a master degree with 55% marks. The University, in its Ordinances, has approved the minimum second division marks in graduation for the candidate to possess apart from the minimum eligibility, as prescribed by the UGC, is in addition to the minimum requirement, which, in any manner, does not lower down the minimum eligibility, which has been recommended by the UGC under its Regulations, therefore, this can be treated as prescription of advanced standards by the University. The issue of predominance of the Ordinance of University over Regulation of the UGC does not ascend, as there has to be no repugnancy or incongruity in the Regulations of UGC and Ordinances of University. The University has bordered its Ordinances-2018, in consonance with UGC Regulations-2016 and 2018. In the Judgments of the Apex Court discussed above, it has been held that the University is sanctioned to prescribe higher standards than the standards prescribed by Regulatory Authority.
(viii) In this regard, it is submitted that the State Government, in execution of its command under Section 66-A of U.P. State Universities Act, 1973, has issued instructions to the University and counsels a layout for enclosing the Ph.D. Research Ordinances in consonance with the UGC Regulations, 2016 and its first and second Amendment of 2018. It is palpable from the University Research Ordinances, 2016 that the Ph.D. Ordinances have been enclosed, as per directions issued by the State Government. Therefore, question of espousal does not have any further bearing.
On the aggregate leverage of the aforesaid submissions, the learned counsel for the respondent-University submits that the admission of petitioners has been made in defilement of University Research Ordinances, 2018 and therefore, the same has been negated. The University cannot be necessitated to go against its own ordinances and statutes because the petitioners have willfully applied pursuant to the advertisement, which advocates the minimum eligibility criteria of having second division in graduation, therefore, the petitioners are not entitled to be granted any relief. The writ petition justifies to be dismissed.
13. For gainsaying/invalidating the submissions made by the learned counsel for the petitioners, Dr. Amar Nath Singh, learned Standing Counsel has made following submission:
(i) Unless the UGC Regulations are formally embraced by the State and the Statutes are amended, it cannot be applied ipso facto upon the State Universities. In sustenance of this submission, he has relied upon the judgment of the Apex Court in the cases of (a) Kalyani Mathivanan vs. K.V. Jeyaraj & Others reported in (2015) 6 SCC 363, and (b) Amit Prasad Vs. State of U.P. reported in (2016) 1 ADJ 690.
(ii) The concern that the Ordinance of the University is predominant over the Regulations, does not ascend, as there has to be no detestation or ambiguity in the Regulations of UGC and Ordinances of the University.
(iii) The law is well adroitly established that while it is not uncluttered for the Universities to insipid the norms and criterions as prearranged by the supervisory organizations, such as UGC or AICTE, it is relentlessly expose to the Universities to counsel customs. Case Laws in support of aforesaid submission are as under:
(a). R. Chitralekha vs. State of Mysore and Others reported in AIR 1964 SC 123,
(b). Bharathidasan University and another vs. All India Council for Technical Education and Others reported in (2001) 8 SCC 676,
(c). State of T.N. and another vs. S.V. Bratheep (Minor) and Others (2004) 4 SCC 513,
(d). Visveswaraiah Technological University and another v. Jai Bharat College of Management and Engineering Technology and Others, Civil Appeal No. 4016 of 2020, and
(e). Registrar, Chhatrapati Shahuji Maharaj University vs. Vinay Gupta and Ors. reported in 2009 (3) ADJ 263.
(iv) As the petitioners have applied with open eyes pursuant to an advertisement, wherein minimum prerequisite upto graduate level is prescribed as per Ordinance of the University, then at this stage, they cannot encounter the Ordinance consequently. Case Law in support of aforesaid submission is as under:
(a). Ramjit Singh Kardam vs. Sanjeev Kumar & Others, Civil Appeal No. 2103 of 2020 (Paragraph 37 is relevant).
(v) The University can red line the admission of the petitioners, as they do not enjoy the minimum eligibility criteria, as per the Deen Dayal Upadhyaya Gorakhpur University Research Ordinance, 2018. There stands no estoppel against law, therefore, the University was thoroughly warranted in terminating the admission of the students. Case laws in support of the aforesaid submission are as under:
(a). State of Rajasthan and Ors. vs. Lata Arun reported in JT 2002 (5) SC 210,
(b). A.P. Christians Medical Educational Society vs. Government of A.P. reported in (1986) 2 SCC 667
(c). Gurdeep Singh vs. State of J.&K. And others reported in (1986) 2 SCC 667
(vi) The State Government in implementation of its power U/s 66-A of U.P. State Universities Act, 1973 has issued guidelines to the University and proposes a layout for outlining the Ph.D. Research Ordinance in consonance with the UGC Regulations, 2016 and its first and second amendment of 2018. It is evident from the University Research Ordinance, 2018 that the Ph.D. Ordinances have been edged as per directions issued by the State Government. Therefore, question of espousal does not have any further germaneness.
In view of the aforesaid submission, it is submitted that the petitioners are not authorized to be settled any respite and the writ petition is liable to be dismissed.
14. This Court has contemplated the submissions made by the learned counsel for the parties and have gone through the annuls of the contemporaneous writ petition as well as judicially perused the rules and case laws trusted upon by the learned counsel for the parties punctiliously.
15. Before coming to the virtues of the case set up by the corresponding parties, it is also apposite to remark here that this Court on 18th November, 2021 required Mr. Rohit Pandey, learned counsel for the respondent-University to apprise the Court as to what action has been taken against the persons, who are answerable for admitting the petitioners for Pre-Ph.D. Course, which are said to be proscribed.
16. On 23rd February, 2022, when both these writ petitions have been earmarked for delivery of judgment, Mr. Rohit Pandey, learned counsel for the respondent-University apprises the Court verbally that inquiry proceedings are unresolved against the stumbling officers/officials of the respondent-University.
17. For determining the velitation involved in both the writ petitions, this Court may also record that till January 3, 1977, Education was a State subject under Entry 11 in List II. By the 42nd Amendment Act, 1976, Entry 11 was obliterated and it was positioned in the Concurrent List by enlarging the Entry 25, as set out above. Entry 25 List III relating to education including technical education, medical education and Universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together. Entry 66 gives influence to Union to see that a vital standard of higher education in the country is sustained. The standard of Higher Education comprising of scientific and technical should not be depressed at the hands of any particular State or States. Secondly, it is the especial obligation of the Central Government to synchronize and determine the cannons for higher tutelage. That authority embraces the power to appraise, blend and shelter apposite rapport to any project of nationwide predominance. It is gratuitous to state that such a synchronize act in higher education with proper ideals, is of utmost significance to national headway. It is in this countrywide attentiveness, the legislative field in regard to 'education' has been distributed between List I and List III of the Seventh Schedule.
18. The University Grants Commission has been established by the enactment of the Central Government being University Grants' Commission Act, 1956 (hereinafter referred to as the "Act, 1956") by the Ministry of Human Resource Development (HRD) (Now Ministry of Education) based in New Delhi. The Central Act i.e. University Grants Commission Act, 1956, has sanctioned University Grants Commission to make regulations under Section 26 (f). Section 26 (f) provides that the University Grants Commission can mount Regulation outlining the minimum criteria of directives for endowment of any degree by any University, whereas Section 26 (g) provides that the Commission can frame Regulation regarding conservation of ideals and dexterity of labor or conveniences in University. The foremost objective and capacity of the UGC in higher education is to afford capitalization to universities and to organize, regulate and retain integrities in advanced educational establishments. The commission emboldens construal between universities, government and the community. The UGC has also fixed some canons for universities to be permitted by the UGC. With the progression of higher education in India, many high-level, medium and small universities are recognized day by day. Among these universities, there are voluminous phony and non-recognized universities. Therefore, the University Grants Commission circulated the list of sham universities in India to comfort students identify these repudiated universities.
19. The notable accomplishments and occupations of University Grants Commission are (i) to endorse and harmonize university edification , (ii) to mount rubrics on minimum standards of education, (iii) to set standards for examination like ICAR NET, UGC NET & CSIR UGC NET, (iv) to dissect evolvement in the pitch of college and university tutelage, (v) to licence endowments to the universities and colleges, (vi) to sustain the construction between the Union and State Governments and institutions of higher education, and (vii) to advocate binding procedures to Central and State governments to make affirmative vicissitudes in University Education.
20. Apart from the aforesaid, it would also be appropriate for this Court to reproduce certain clauses of the Deen Dayal Upadhyay Gorakhpur University Research Ordinance, 2018, which provides for Minimum Criteria and Procedure for Research Degree-Ph.D.
21. Clause-3 of the Ordinance, 2018 provides for Guidelines and Eligibility for Admission in Ph.D. Programme. Clause-3.1 enunciates for minimum expected eligibility for appearing in Research Entrance Test, which is as follows:
(a) The minimum percentage of marks in the qualifying post-graduate exam for the candidates of unreserved and other Backward Classes (Creamy layer) is 55%, and for other Backward Classes (Non-Creamy Layer), Scheduled Caste, Scheduled Tribe, and physically Challenged Category candidates the eligibility is 50%.
(b) The Candidate should have passed his graduation with second division or have obtained required marks fulfilling the guidelines issued by the University Grant Commission from time to time.
(c) The Candidates appearing in the final year of their post graduation can also apply for Research Entrance Test but before taking admission in research programme, they must complete the expected eligibility by passing their post graduation exam."
22. It would also be relevant to reproduce the University Grants Commission (Minimum Standards and Procedure for Award of M.Phill./Ph.D. Degrees) Regulations, 2016. Clause-3 of Regulations, 2016 stipulates for eligibility benchmarks for admission to Ph.D. programme, which reads as follows:
3.1 Master's Degree holders satisfying the criteria stipulated under Clause 2 above.
3.2 Candidates who have cleared the M.Phil course work with at least 55% marks in aggregate or its equivalent grade ''B' in the UGC 7-point scale (or an equivalent grade in a point scale wherever grading system is followed) and successfully completing the M.Phil. Degree shall be eligible to proceed to do research work leading to the Ph. D. Degree in the same Institution in an integrated programme. A relaxation of 5% of marks, from 55% to 50%, or an equivalent relaxation of grade, may be allowed for those belonging to SC/ST/OBC(non-creamy layer)/differently-abled and other categories of candidates as per the decision of the Commission from time to time.
3.3 A person whose M.Phil. dissertation has been evaluated and the viva voce is pending may be admitted to the Ph.D. programme of the same Institution;
3.4 Candidates possessing a Degree considered equivalent to M.Phil. Degree of an Indian Institution, from a Foreign Educational Institution accredited by an Assessment and Accreditation Agency which is approved, recognized or authorized by an authority, established or incorporated under a law in its home country or any other statutory authority in that country for the purpose of assessing, accrediting or assuring quality and standards of educational institutions, shall be eligible for admission to Ph.D. programme."
Clause-5 of the Regulations, 2016 articulates for procedure for admission. Clause 5.2.2, which is relevant, is quoted herein below:
5.2 Higher Educational Institutions (HEIs) referred to in sub-clause 1.2 above and Colleges under them which are allowed to conduct M.Phil. and/or Ph.D. programmes, shall:
5.2.1 decide on an annual basis through their academic bodies a predetermined and manageable number of M.Phil. and/or Ph.D. scholars to be admitted depending on the number of available Research Supervisors and other academic and physical facilities available, keeping in mind the norms regarding the scholar- teacher ratio (as indicated in Para 6.5), laboratory, library and such other facilities;
5.2.2 notify well in advance in the institutional website and through advertisement in at least two (2) national newspapers, of which at least one (1) shall be in the regional language, the number of seats for admission, subject/discipline-wise distribution of available seats, criteria for admission, procedure for admission, examination centre(s) where entrance test(s) shall be conducted and all other relevant information for the benefit of the candidates;
5.2.3 adhere to the National/State-level reservation policy, as applicable. 5.3 The admission shall be based on the criteria notified by the Institution, keeping in view the guidelines/norms in this regard issued by the UGC and other statutory bodies concerned, and taking into account the reservation policy of the Central/State Government from time to time."
23. FINDINGS OF THE COURT
Now this Court comes to Issue No.1.
For fathom issue no.1, it is indispensable for this Court to replicate law as laid down by the Apex Court in several verdicts as well as by the Punjab and Haryana High Court, which are being noticed herein below:
A Constitution Bench of the Apex Court in the case of Osmania University Teacher's Association Vs. State of Andhra Pradesh & Another reported in (1987) 4 SCC 671 has opined as follows:
"19. The power of the State to prescribe certain norms for admission to colleges came for consideration before this Court in R. Chitralekha & Anr. Vs. State of Mysore & Ors., reported in  6 SCR 368 where Subba Rao J., as he then was, ob- served:
"that if the law made by the States by virtue of Entry 11 of List II of the Seventh Schedule to the Constitution makes impossible or diffi- cult the exercise of the legislative power of the Parliament under the entry "Co-ordination and determination of standards in institutions for higher education or research and scientif- ic and technical institutions" reserved to the Union, the State law may be bad. This cannot obviously be decided on speculative and hypo- thetical reasoning. If the impact of the State law providing for such standards on entry 66 of List I is so heavy or devastating as to wipe out or appreciably abridge the central field it may be struck down. But that is a question of fact to be ascertained in each case."
26. In Prem Chand Jain v. R.K. Chhabra,  2 SCR 883 this Court has held that the UGC Act falls under Entry 66 of List I. It is then unthinkable as to how the State could pass a parallel enactment under Entry 25 of List III, unless it encroaches Entry 66 of List I. Such an encroachment is patent and obvious. The Commissionerate Act is beyond the legislative competence of the State Legislature and is hereby declared void and inoperative. In the result, these appeals are allowed with costs. The judgment of the High Court is reversed. There shall be a direction to the State not to enforce the provisions of the impugned Act.
30. The Constitution of India vests Parliament with exclusive authority in regard to co-ordination and determination of standards in institutions for higher education. The Parliament has enacted the UGC Act for that purpose. The University Grants Commission has, therefore, a greater role to play in shaping the academic life of the country. It shall not falter or fail in its duty to maintain a high standard in the Universities. Democracy depends for its very life on a high standards of general, vocational and professional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs. It is hoped that University Grants Commission will duly discharge its responsibility to the Nation and play an increasing to role bring about the needed transformation in the academic life of the Universities."
In S. Satyapal Reddy & Ors. Vs. Government of A.P. & Ors., (1994) 4 SCC 391, the Apex Court held as under:-
"7. It is thus settled law that Parliament has exclusive power to make law with respect to any of the matters enumerated in List I or concurrent power with the State Legislature in List III of the VIIth Schedule to the Constitution which shall prevail over the State law made by the State Legislature exercising the power on any of the entries in List III. If the said law is inconsistent with or incompatible to occupy the same filed, to that extent the State law stands superseded or becomes void. It is settled law that when Parliament and the Legislature derive that power under Article 246 (2) and the entry in the Concurrent List, whether prior or later to the law made by the State Legislature, Article 246 (2) gives power, to legislate upon any subject enumerated in the Concurrent List, the law made by Parliament gets paramountcy over the law made by the State Legislature unless the State law is reserved for consideration of the President and receives his assent. Whether there is an apparent repugnance or conflict between Central and State laws occupying the same field and cannot operate harmoniously in each case the Court has to examine whether the provisions occupy the same field with respect to one of the matters enumerated in the Concurrent List and whether there exists repugnancy between the two laws. Article 254 lays emphasis on the words "with respect to that matter". Repugnancy arises when both the laws are fully inconsistent or are absolutely irreconcilable and when it is impossible to obey one without disobeying the other. The repugnancy would arise when conflicting results are produced when both the statutes covering the same field and applied to a given set of facts. But the court has to make every attempt to reconcile the provisions of the apparently conflicting laws and court would endeavour to give harmonious construction. The purpose to determine inconsistency is to ascertain the intention of Parliament which would be gathered from a consideration of the entire field occupied by the law. The proper test would be whether effect can be given to the provisions of both the laws or whether both the laws can stand together. Section 213 itself made the distinction of the powers exercisable by the State Government and the Central Government in working the provisions of the Act. It is the State Government that operates the provisions of the Act through its officers. Therefore, sub-section (1) of Section 213 gives power to the State Government to create Transport Department and to appoint officers, as it thinks fit. Sub-section (4) thereof also preserves the power. By necessary implication, it also preserves the power to prescribed higher qualification for appointment of officers of the State Government to man the Motor Vehicles Department. What was done by the Central Government was only the prescription of minimum qualifications, leaving the field open to the State Government concerned to prescribe if it finds necessary, higher qualifications. The Governor has been given power under proviso to Article 309 of the Constitution, subject to any law made by the State Legislature, to make rules regulating the recruitment which includes prescription of qualifications for appointment to an office or post under the State. Since the Transport Department under the Act is constituted by the State Government and the officers appointed to those posts belong to the State service, while appointing its own officers, the State Government as a necessary adjunct is entitled to prescribe qualifications for recruitment or conditions of service. But while so prescribing, the State Government may accept the qualifications or prescribe higher qualification but in no case prescribe any qualification less than the qualifications prescribed by the Central Government under sub-section (4) of Section 213 of the Act. In the latter event, i.e., prescribing lesser qualifications, both the rules cannot operate without colliding with each other. When the rules made by the Central Government under Section 213 (4) and the statutory rules made under proviso to Article 309 of the Constitution are construed harmoniously, there is no incompatibility or inconsistency in the operation of both the rules to appoint fit persons to the posts or class of officers of the State Government vis-a-vis the qualifications prescribed by the Central Government under sub-section (4) of Section 213 of the Act.
8. It is seen that A.P. Transport Subordinate Service Rules have been made by the Governor exercising the power under proviso to Article 309 of the Constitution and Rule 6 thereof prescribes the qualifications as enumerated above. Graduation in Mechanical Engineering is one of the higher qualifications than Diploma. Since Section 213 (4) gives such power to the State Government by operation of Section 217 of the Act, the statutory rules remain valid and operate in the field without colliding with the Central rules. Both the rules would operate harmoniously and effect can be given to both the rules. Thus the question of inconsistency or repugnancy under Article 254 of the Constitution does not arise. Therefore, we do not find that there is any conflict in the exercise of power by both Central and State Governments or inconsistency in operation of the provisions of the statutory rules made by the Governor under proviso to Article 309 and the rules made by the Central Government under Section 213 (4) of the Act. The recruitment as per State rules is valid and legal."
The Apex Court in the case of State of Tamil Nadu & Another Vs. S.V. Bratheep (Minor) & Others, reported in (2004) 4 SCC 513 in paragraph nos. 8 to 12, has observed as follows:
"8. As regards the scope of the Entries in the Constitution arising under Entry 66 of List I and Entry 25 of List III of the Seventh Schedule to the Constitution was examined in great detail by a constitution Bench of this Court in Dr. Preeti Srivastava & Anr. Vs. State of M.P. & Others,  7 SCC 120. After adverting to these two entries in the Seventh Schedule, this Court stated as follows:
"35....Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education."
9. .............If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by the AICTE would allow admission only on the basis of the marks obtained in the qualifying examination the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by the AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either event, the streams proposed by the AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by the AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr. Preeti Srivastava's case. It is no doubt true as noticed by this Court in Adhiyaman's case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by series of decisions of this Court including Dr. Preeti Srivastava's case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.
10. Argument advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. Preeti Srivastav's case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and that proposition is indisputable. The mere fact that there are vacancies in the colleges would not be a matter, which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE they should be admitted even if they fall short of the criteria prescribed by the State. The scope of the relative entries in the Seventh Schedule to the Constitution have to be understood in the manner as stated in the Dr. Preeti Srivastava's case and, therefore, we need not further elaborate in this case or consider arguments to the contrary such as application of occupied theory no power could be exercised under Entry 25 of List III as they would not arise for consideration.
11. The argument advanced on behalf of the respondents that these matters are indeed governed by the decision in Islamic Academy of Education and Anr. v. State of Karnataka and Ors.  6 SCC 697, and T.M.A. Pai Foundation v. State of Karnataka,  8 SCC 481. In fact this Court did not consider the question that has arisen for our consideration in the present case but was dealing with entirely different issue in relation to fee structure of minority and non-minority educational institutions and whether private unaided professional colleges are entitled to fill their seats to the full extent by their own method of admission. That is not the issue before us at all. Therefore, no reliance could be placed by the respondents on the decisions either in TMA Pai Foundation or Islamic Academy case.
12. One other argument is further advanced before us that the criteria fixed by the AICTE was to be adopted by the respective colleges and once such prescription had been made it was not open to the Government to prescribe further standards particularly when they had established the institutions in exercise of their fundamental rights guaranteed under Article 19 of the Constitution. However, we do not think this argument can be sustained in any manner. Prescription of standards in education is always accepted to be an appropriate exercise of power by the bodies recognising the colleges or granting affiliation, like AICTE or the University. If in exercise of such power the prescription had been made, it cannot be said that the whole matter has been foreclosed."
Bearing in mind the aforesaid annotations, the Apex Court in the case of State of Tamil Nadu (Supra) has pronounced that recommendation of standards in edification is continually acknowledged to be an apt exercise of authority by the bodies pinpointing the colleges or yielding affiliation, like AICTE or university. If an implementation of such power the instruction had been prepared, it cannot be said that the unabridged substance has been foreclosed. In view of the aforementioned, the Apex Court has held that it is allowable for the State Government to commend higher qualifications for tenacities of admission to the engineering colleges than what had been suggested by AICTE (which is a statutory body like UGC in the present case) and what has been prearranged by the State and deliberated by us, as it is not antagonistic to the equivalent but is only analogous or auxiliary to it.
In the case of Visveswaraya Technological University & Others Vs. Krishnendu Halder & Others reported in (2011) 4 SCC 606, following the judgment of the Apex Court in the case of State of Tamil Nadu (Supra) has held that eligibility criteria for admission under Statutory Rules and Regulations of State Government/University could be unperturbed or snubbed.
It has further been held that a student whose grades fall short of the eligibility criteria fixed by the State/University, or any college which acknowledges such students explicitly under the management quota, cannot avow that the admission of students found qualified under the criteria fixed by AICTE, should be ratified even if they do not accomplish the higher edibility criteria fixed by the State/University.
In paragraph-17 of the case of Visveshwarya Technological University (Supra), in paragraph no. 14 has observed as follows:
".........(i) While prescribing the eligibility criteria for admission to institutions of higher education, the State/University cannot adversely affect the standards laid down by the Central Body/AICTE. The term `adversely affect the standards' refers to lowering of the norms laid down by Central Body/AICTE. Prescribing higher standards for admission by laying down qualifications in addition to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and excellence in higher education, will not be considered as adversely affecting the standards laid down by the Central Body/AICTE.
(iv) The State/University (as also AICTE) should periodically (at such intervals as they deem fit) review the prescription of eligibility criteria for admissions, keeping in balance, the need to maintain excellence and high standard in higher education on the one hand, and the need to maintain a healthy ratio between the total number of seats available in the state and the number of students seeking admission, on the other. If necessary, they may revise the eligibility criteria so as to continue excellence in education and at the same time being realistic about the attainable standards of marks in the qualifying examinations."
Thereafter the Apex Court in the case of Visveshwarya Technological University (Supra), in paragraph-17 has held as follows:
"17. No student or college, in the teeth of the existing and prevalent rules of the State and the University can say that such rules should be ignored, whenever there are unfilled vacancies in colleges. In fact the State/University, may, in spite of vacancies, continue with the higher eligibility criteria to maintain better standards of higher education in the State or in the colleges affiliated to the University. Determination of such standards, being part of the academic policy of the University, are beyond the purview of judicial review, unless it is established that such standards are arbitrary or `adversely affect' the standards if any fixed by the Central Body under a Central enactment. The order of the Division Bench is therefore unsustainable."
The Punjab & Haryana High Court in the case of Shamsher Singh Tayagi Vs. State of Haryana reported in 2006 0 Supreme ( P&H) 2462 following the judgment of the Apex Court in the case of Brahmo Samaj Education Society & Others Vs. State of West Bengal & Others reported in (2004) 6 SCC 224, has observed as follows:
"(14) A reading of the observations of the Honble Supreme Court reproduced hereinabove would show that it has been accepted by the Court that a higher eligibility requirement for appointment as a teacher can be prescribed by the State or a University over and above the minimum requirement prescribed by the Central body being AICTE or UGC. Moreover on a bare reading of the Regulations, it is clear that in the present case only minimum qualifications have been prescribed by the UGC. Therefore in view of the Regulations relied upon by Mr. Jain for the present case and also the judgments mentioned hereinabove, the argument raised by Mr. Jain cannot be accepted."
The Apex Court in the case of Kalyani Mathivanan VS. K.V. Jeyaraj & Others reported in (2018) 6 SCC 363, in paragraph nos. 50 to 53 has observed as follows:
"50. In State of Tamil Nadu & Another Vs. Adhiyhaman Education & Research Institute & Others, (1995) 4 SCC 104, this Court noticed that Entry 66 of List I of the Seventh Schedule has remained unchanged from the inception and that Entry 11 was taken out from List II and was amalgamated with Entry 25 of List III. In the said case the Court held as follows: "12.The subject "coordination and determination of standards in institutions for higher education or research and scientific and technical institutions" has always remained the special preserve of Parliament. This was so even before the Forty-second Amendment, since Entry 11 of List II even then was subject, among others, to Entry 66 of List I. After the said Amendment, the constitutional position on that score has not undergone any [pic]change. All that has happened is that Entry 11 was taken out from List II and amalgamated with Entry 25 of List III. However, even the new Entry 25 of List III is also subject to the provisions, among others, of Entry 66 of List I. It cannot, therefore, be doubted nor is it contended before us, that the legislation with regard to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions has always been the preserve of Parliament. What was contended before us on behalf of the State was that Entry 66 enables Parliament to lay down the minimum standards but does not deprive the State legislature from laying down standards above the said minimum standards. We will deal with this argument at its proper place.
xxx xxx xxxx
41. What emerges from the above discussion is as follows:
(i) The expression 'coordination' used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'coordination' either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.
(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.
(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.
(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.
(v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law.
(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally."
51. In Dr. Preeti Srivastava & Another Vs. State of M.P. & Others, (1999) 7 SCC 120, a Constitution Bench of five Judges dealt with the State competence under List III Entry 25 to control or regulate higher education which is subject to standards laid down by the Union of India. The Court noticed that the standards of higher education can be laid down under List I Entry 66 by the Central Legislation and held as follows:
"35. The legislative competence of Parliament and the legislatures of the States to make laws under Article 26 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on "education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III".
Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows:
"25.Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." [pic] Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I is as follows:
"66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are:
(1) the calibre of the teaching staff;
(2) a proper syllabus designed to achieve a high level of education in the given span of time;
(3) the student-teacher ratio;
(4) the ratio between the students and the hospital beds available to each student;
(5) the calibre of the students admitted to the institution; (6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges;
(7) adequate accommodation for the college and the attached hospital; and [pic](8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.
37. While considering the standards of education in any college or institution, the calibre of students who are admitted to that institution or college cannot be ignored. If the students are of a high calibre, training programmes can be suitably moulded so that they can receive the maximum benefit out of a high level of teaching. If the calibre of the students is poor or they are unable to follow the instructions being imparted, the standard of teaching necessarily has to be lowered to make them understand the course which they have undertaken; and it may not be possible to reach the levels of education and training which can be attained with a bright group. Education involves a continuous interaction between the teachers and the students. The pace of teaching, the level to which teaching can rise and the benefit which the students ultimately receive, depend as much on the calibre of the students as on the calibre of the teachers and the availability of adequate infrastructural facilities. That is why a lower student-teacher ratio has been considered essential at the levels of higher university education, particularly when the training to be imparted is a highly professional training requiring individual attention and on-hand training to the pupils who are already doctors and who are expected to treat patients in the course of doing their postgraduate courses."
52. In Annamalai University Vs. Secretary to Government, Information and Tourism Department & Others, (2009) 4 SCC 590, this Court observed that UGC Act was enacted by Parliament in exercise of its power under Entry 66 of List I of the Seventh Schedule to the Constitution of India whereas the Open University Act was enacted by Parliament in exercise of its power under Entry 25 of List III. It was held that in such circumstances the question of repugnancy between the provisions of the said two Acts, does not arise. The Court while holding that the provisions of the UGC Act are binding on all the Universities held as follows:
"40. The UGC Act was enacted by Parliament in exercise of its power under Entry 66 of List I of the Seventh Schedule to the Constitution of India whereas the Open University Act was enacted by Parliament in exercise of its power under Entry 25 of List III thereof. The question of repugnancy of the provisions of the said two Acts, therefore, does not arise. It is true that the Statement of Objects and Reasons of the Open University Act shows that the formal system of education had not been able to provide an effective means to equalise educational opportunities. The system is rigid inter alia in respect of attendance in classrooms. Combinations of subjects are also inflexible.
42. The provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by it in terms of clauses (e), (f), (g) and (h) of sub-section (1) of Section 26 are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions. Such minimum standards of instructions are required to be defined by UGC. The standards and the coordination of work or facilities in universities must be maintained and for that purpose required to be regulated. The powers of UGC under Section 26 (1) (f) and 26 (1) (g) are very broad in nature. Subordinate legislation as is well known when validly made becomes part of the Act. We have noticed hereinbefore that the functions of UGC are all-pervasive in respect of the matters specified in clause (d) of sub-section (1) of Section 12-A and clauses (a) and (c) of sub-section (2) thereof."
53. The aforesaid judgment makes it clear that to the extent the State Legislation is in conflict with Central Legislation including sub-ordinate legislation made by the Central Legislation under Entry 25 of the Concurrent List shall be repugnant to the Central Legislation and would be inoperative."
In A.P.J. Abdul Kalam Technological University & Another Vs. Jai Bharath College of Management and Engineering Technology & Others reported in (2021) 2 SCC 564, the Apex has pronounced that while counseling eligibility criteria sinking the models laid down by the Central Body/AICTE for admission to institutions of higher education, the State/University cannot undesirably distress canons laid down by the Central Body/AICTE. Advocating higher standards for admission by laying down qualifications in accumulation to or higher than those prescribed by Central Body/AICTE consistent with object of endorsing higher standards and brilliance in higher educations will not be reflected as unsympathetically disturbing standards laid own by the Central Body/AICTE. Thus, the Apex Court has apprehended that University/State Government concerned undoubtedly has the muscle to fix higher eligibility criteria than the minimum prearranged by the Central Governing Body/AICTE to triumph the refinement in edification.
For ready reference, relevant paragraphs of the judgment of the Apex Court in the case of A.P.J. Abdul Kalam Technological University (Supra) i.e. paragraph nos. 44 to 48 are being quoted herein below:
"44. In R. Chitralekha Vs. State of Mysore and Others, the Constitution Bench of this Court pointed out that the question regarding the impact of Entry 66 of List-I on Entry-25 of List-III must be determined by a reading of the Central Act and the State Act conjointly. The Court pointed out that a State Law providing for such standards, having regard to Entry 66 of List-I, would be struck down as unconstitutional only if the same is found to be so heavy or devastating as to wipe out or appreciably abridge the Central field and not otherwise. The Court also pointed out that if a State law prescribes higher percentage of marks for extra-curricular activities in the matter of admissions to colleges, it cannot be said that it would be encroaching on the field covered by Entry 66 of List-I.
45. The decision of the Supreme Court in R. Chitralekha (supra) was followed in several cases including the one in State of A.P. Vs. K. Purushotham Reddy & Others. The decision in K. Purushotham Reddy (supra) arose under very peculiar circumstances. The State of Andhra Pradesh enacted in the year 1986, an Act known as Andhra Pradesh Commissionerate of Higher Education Act, 1986. The constitutional validity of the said Act was questioned on the ground of lack of legislative competence, in view of the University Grants Commission Act, 1956. Though a Full Bench of the High Court rejected the challenge, the Supreme Court declared the Act as unconstitutional, by its judgment in Osmania University Teachers' Association vs. State of Andhra Pradesh & Another. Thereafter, the Government of Andhra Pradesh enacted the Andhra Pradesh State Council of Higher Education Act, 1988. This Act was declared as unconstitutional by the High Court, on the same premise on which the 1986 Act was declared by this Court as unconstitutional. Therefore, the matter was carried to this Court. A Two Member Bench of this Court doubted the correctness of the decision in Osmania University Teachers' Association (supra), and hence, the matter was referred to a three-member Bench. The three-member Bench rejected the challenge to the State Act, by following the decision in R. Chitralekha (supra) and pointed out that when a State Act is in aid of the Parliament Act, the same would not entrench upon the latter.
46. The law is now fairly well settled that while it is not open to the Universities to dilute the norms and standards prescribed by AICTE, it is always open to the Universities to prescribe enhanced norms. As regards the role of the Universities vis-a-vis the AICTE, this Court held in Bharathidasan University & Another Vs. All India Council for Technical Education and Others, that AICTE is not a super power with a devastating role undermining the status, authority and autonomous functioning of the Universities in areas and spheres assigned to them. This view was followed in Association Management of Private Colleges Vs. All India Council for Technical Education and Others.
47. That even the State Government can prescribe higher standards than those prescribed by AICTE was recognized by a three-member Bench of this court in State of T.N. & Another Vs. S.V. Bratheep (Minor) & Others. This principle was later applied in the case of Universities in Visveswaraiah Technological University & Another Vs. Krishnendu Halder & Others, where this Court considered the previous decisions and summarised the legal position emerging therefrom as follows:
(i) While prescribing the eligibility criteria for admission to institutions of higher education, the State/University cannot adversely affect the standards laid down by the Central Body/AICTE. The term "adversely affect the standards" refers to lowering of the norms laid down by Central Body/AICTE. Prescribing higher standards for admission by laying down qualifications in addition to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and excellence in higher education, will not be considered as adversely affecting the standards laid down by the Central Body/AICTE.
(ii) The observation in para 41(vi) of Adhiyaman to the effect that where seats remain unfilled, the state authorities cannot deny admission to any student satisfying the minimum standards laid down by AICTE, even though he is not qualified according to its standards, is not good law.
(iii) The fact that there are unfilled seats in a particular year, does not mean that in that year, the eligibility criteria fixed by the State/University would cease to apply or that the minimum eligibility criteria suggested by AICTE alone would apply. Unless and until the State or the University chooses to modify the eligibility criteria fixed by them, they will continue to apply in spite of the fact that there are vacancies or unfilled seats in any year. The main object of prescribing 6 (2004) 4 SCC 513 7 (2011) 4 SCC 606eligibility criteria is not to ensure that all seats in colleges are filled, but to ensure that excellence in standards of higher education is maintained.
(iv) The State/University (as also AICTE) should periodically (at such intervals as they deem fit) review the prescription of eligibility criteria for admissions, keeping in balance, the need to maintain excellence and high standard in higher education on the one hand, and the need to maintain a healthy ratio between the total number of seats available in the state and the number of students seeking admission, on the other. If necessary, they may revise the eligibility criteria so as to continue excellence in education and at the same time being realistic about the attainable standards of marks in the qualifying examinations.
48. Visveswaraiah (supra) principles were reiterated in Mahatma Gandhi University and Another vs. Jikku Paul and Others8. The legal position summarised in paragraph 14 of the report in Visveswaraiah (supra) (extracted above) were quoted with approval by the Constitution Bench in Mordern Dental College & Research Centre & Others Vs. State of Madhya Pradesh & Others. In Modern Dental College (supra), issue No. IV framed for consideration by the Constitution Bench (as reflected in the opinion of the majority) was as to "whether the legislation in question was beyond the legislative competence of the State of Madhya Pradesh". While answering this issue, the opinion of the majority was to the effect (i) that the decision in Dr. Preeti Srivastava & Another Vs. State of M.P. & Others did not exclude the role of the States altogether from admissions; and (ii) that the observations in Bharati Vidyapeeth (deemed university) and Others Vs. State of Maharashtra & Another as though the entire gamut of admissions was covered by Entry 66 of ListI, has to be overruled. In the concurring and supplementing opinion rendered by R. Banumathi, J., in Modern Dental College (supra), the legal position enunciated in Visveswaraiah (supra) were extracted and followed."
24. From prudently perusing of the aforementioned laws laid down by the Apex Court in its verdicts referred to above, this Court is of the estimation that once Act, 1956 is recognized by the State, then any directions or guidelines edged under the said Act intermittently are requisite for all the States/Universities/Colleges to admit the same. Meaning thereby, the Regulations outlined by the University Grants Commission are obligatory upon the all the State Universities and Institution through the Republic. However, in view of the decree of the Apex Court in the case of Kalyani Mathivanan (Supra), it is vibrant that unless or until, any procedures enclosed by the UGC are espoused and instigated by the State Legislation, the same will be relatively mandatory and will be comparatively directory. It is also conventional from the aforesaid findings that the objective and purpose of the UGC and other Central Commission is to safeguard that in higher education, minimum criterions of education are provided to all the students of all higher educational institutions/universities through the country correspondingly. However, in the actualities of the contemporaneous case, the regulations edged by the UGC of the year 2016 and 2018 are silent in counseling higher eligibility criteria for admission to Pre-Ph.D. Course. From examination of the decree as laid down by the Apex Court in its judgments, which have been quoted herein above, it is established that for sponsoring higher standards for admission to the higher educational courses, the State Legislation has every authority/right to counsel/fix maximum eligibility criteria but the same should not be irrational or manageable and such prescription or fascination cannot be said to be, in dissension to, or, infringement of, the Regulations mounted by the Central Legislation like UGC. However, it is also unblemished that the State Legislation cannot subordinate the minimum eligibility criteria in higher education, as riveted by the Central Legislation like the UGC, as any dropping of the customs laid down can and does have a confrontational influence on the principles of edification in the establishments of higher education. In the specifics of the present case, in the Regulations of the UGC of the year 2016, the minimum eligibility criteria approved for admission to M.Phil and Ph.D is to have a master degree with 55% marks, whereas the respondent-University vide its Ordinances, has recommended the minimum second division marks in graduation for the candidate to possess apart from the minimum admissibility, as prescribed by the UGC, is in additional to the minimum prerequisite, which does not lower down the minimum eligibility, in any fashion, which has been approved by the UGC vide its Regulations. Hence, the same can be treated as prescription of higher standards by the respondent-University. Therefore, the issue of prevailing the Ordinance of the respondent-University over the Regulations framed by the UGC does not ascend, as there has to be no repugnancy or paradox in the Regulations of the UGC and Ordinances of the respondent-University. This Court, therefore, is of the outlook that Clause-3.1 (b) of the Deen Dayal Upadhya, Gorakhpur University Research Ordinance 2018 (Minimum Criteria and Procedure for Research Degree-Ph.D) being in consonance with the regulations framed by the UGC and not in violation of the same, which offers that for admission in Ph.D. Course, only those candidates will be qualified, who fortified second division marks in undergraduate course, is not foist or incompatible to the regulations outlined by the UGC.
25. In view of the aforesaid, this Court finds that the encounter made on behalf the petitioners to the vires of Clause-3.1 (b) of the Deen Dayal Upadhya, Gorakhpur University Research Ordinance 2018 (Minimum Criteria and Procedure for Research Degree-Ph.D) cannot be approved by this Court and, therefore, Issue no.1 and its sub-issues answer against the petitioners.
26. Since Regulations mounted by the UGC of the year 2016 and 2018 are silent in fixation of eligibility criteria for admission to Ph.D. Course under or upto graduate level, the embracing of the aforesaid pronouncements does not ascend. Therefore, the issue no. 4 is not applicable in the particulars of the existent case.
27. Now this Court garners up on Issue No.3
In the actualities of the contemporaneous case, pursuant to the news item/advertisement acquainted by the respondent-University, wherein it has explicitly been mentioned that for appearing in research eligibility test, the minimum eligibility criteria for Ph.D. degree is to have second division in graduation, the petitioners applied with open eyes and appeared in the test, ensuingly, they have been avowed eligible for the explanations preeminently known to the respondent-University. Consequently, they have been issued eligibility certificate. Thereafter on scrutiny of their candidature, it was established that the petitioners were not eligible as per the University Research Ordinance, 2018 as they did not possess the minimum second division marks in graduation. As such, after a comprehensive inquiry, it was found that the admissions contracted to the petitioners on some blunders perpetrated by the officials of the respondent-University are dissimilar to the news item/advertisement and the Ordinance of the respondent-University, the respondent-University has determined to revoke the admissions of the petitioners for which a notification dated 16th January, 2021 has been issued by the respondent-University. In the credence of this Court, the respondent-University has every authority/right to terminate the admissions of the petitioners, which are antagonistic to Ordinances of the respondent-University at any time. In the case of State of Rajasthan & Others Vs. Lata Arun delineated in 2002 (5) SC 210, the Apex Court has surveyed the invalidation of admission of a candidate to the General Nursing and Midwifery and Staff Nurse Course on the ground that the respondent did not possess the eligibility criteria. The Apex Court, while setting aside the assessment of the High Court, held that the high Court has miscalculated in issuing guidelines to the appellants to treat the respondent as a candidate possessed of all the prearranged qualification and to asseverate his result.
In A.P. Christians Medical Educational Society Vs. Government of Andhra Pradesh & Another reported in (1986) 2 SCC 667, has unmistakably discoursed that the Court cannot issue direction to the University to safeguard the comforts of the students, who had been admitted to the medical college as that would be in strong indiscretion of the provisions of the University Act and the protocols of the University. The appropriate portion whereof is being quoted herein below:
"10. Shri K.K. Venugopal, learned counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution. He invited our attention to the circumstance that students of the Medical college established by the Daru-Salaam Educational Trust were permitted to appear at the examination notwithstanding the fact that affiliation had not by then been granted by the University. Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interests of the students. We do not think that we can possibly acceed to the request made by Shri Venugopal on behalf of the students. Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws. ...."
Correspondingly, in the case of Gurdeep Singh Vs. State of Jammu and Kashmir & Others, reported in 1995 Supp (1) SCC 188, the Apex Court, while probing the selection of a candidate, who was ineligible to be admitted, has held that in order to sustain the limpidness of academic progression, the selection and admission of respondent no.6 must be quashed. Paragraph-12 of the aforesaid judgment, which is relevant, reads as follows:
"12. What remains to be considered is whether the selection of respondent No. 6 should be quashed. We are afraid, unduly lenient view of the courts on the basis of human consideration in regard to such excesses on the part of the authorities, has served to create an impression that even where an advantage is secured by stratagem and trickery, it could be rationalised in courts of law. Courts do and should take human and sympathetic view of matters. That is the very essence of justice. But considerations of judicial policy also dictate that a tendency of this kind where advantage gained by illegal means is permitted to be retained will jeopardise the purity of selection process itself; engender cynical disrespect towards the judicial process and in the last analyses embolden errant authorities and candidates into a sense of complacency and impunity that gains achieved by such wrongs could be retained by an appeal to the sympathy of the court. Such instances reduce the jurisdiction and discretion of courts into private benevolence. This tendency should be stopped. The selection of respondent No. 6 in the sports category was, on the material placed before us thoroughly unjustified. He was not eligible in the sports category. He would not be entitled on the basis of his marks, to a seat in general merit category. Attribution of eligibility long after the selection process was over, in our opinion is misuse of power. While we have sympathy for the predicament of respondent No. 6, it should not lose sight of the fact that the situation is the result of his own making. We think in order to uphold the purity of academic processes, we should quash the selection and admission of respondent No. 6. We do so though, however, reluctantly."
Further more, the Apex Court in the case of Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Indhi Cooperation Housing Society, Jaipur & Others reported in (2013) 5 SCC 427, has observed that the State and statutory authorities are not bound by their erstwhile erroneous understanding or elucidation of law. The relevant portion whereof reads as follows:
"Be that as it may, there can be no estoppel against the law or public policy. The State and statutory authorities are not bound by their previous erroneous understanding or interpretation of law. Statutory authorities or legislature cannot be asked to act in contravention of law."
In assessment the aforesaid mature legal postulations of the law, this Court is of the estimation that the respondent-University has not committed any illicitness or aberration in cancelling the admission of the petitioners on the ground that they are ineligible for Ph.D. course, as they have not possessed second division marks under or upto graduate level, which is prerequisite under Clause 3.1 (b) of Ordinance, 2018 of the respondent-Commission. Therefore, Issue no.3 also answers against the petitioners.
28. Now, this Court comes to Issue No.2:
As already perceived above, the petitioners applied pursuant to news item/advertisement informed by the respondent-Commission for Research Eligibility Test, 2019. In spite of the fact that in the aforesaid news item/advertisement, it has unequivocally been mentioned that the candidates are required to retain minimum second division marks in Graduation, the petitioners, who did not possess the second division marks in Graduation, have applied pursuant to the aforesaid news item/advertisement, with open eyes and they themselves postured them in a situation, where at the time of examination of their eligibility, they were found ineligible on account of not having minimum second division marks in graduation as per Clause 3.1 (b) of University Research Ordinances, 2018. In the stance of the Court, writ petitioners, after having applied and appeared in the test without any demur, are not authorized to encounter the same, after their admissions have been negated on the ground that their admissions are conflicting the Ordinances of the respondent-University.
The law on the subject has been crystalized in several decisions of the Apex Court Court
In the case of Chandra Prakash Tiwari vs. Shantanu Shukla reported in (2002) 6 SCC 127, the Apex Court has laid down the principle that when a candidate appears at an examination without demurral and is consequently found to be unrewarding, a challenge to the process is inhibited. The question of contemplating a petition challenging an examination would not ascend where a candidate has appeared and partaken. He or she cannot subsequently turn around and contend that the process was prejudice or that there was a hiatus therein, merely because the result is not palatable.
The Apex Court, in Union of India v. S. Vinodh Kumar reported in (2007) 8 SCC 100, has held as follows:
"18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same..."
In Vijendra Kumar Verma v. Public Service Commission reported in (2011) 1 SCC 150, the Apex Court has opined that the candidates who had participated in the selection process were cognizant that they were required to retain certain specific credentials in computer operations. The appellants had appeared in the selection process and after partaking in the interview sought to contest the selection process as being without jurisdiction. This was held to be verboten.
In the case of Chandigarh Admn. Jasmine Kaur reported in (2014) 10 SCC 521, it has been opined by the Apex Court that a candidate who takes a premeditated hazard or chance by subjecting himself or herself to the selection process cannot turn around and grumble that the process of selection was prejudiced after knowing of his or her non-selection.
In Pradeep Kumar Rai vs. Dinesh Kumar Pandey, reported in (2015) 11 SCC 493, the Apex Court has held that :
"Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted."
The Apex Court in the case of Madras Institute of Development Studies and Another Vs. Sivasubramaniyam & Others reported in (2016) 1 SCC 454, dealing with the issue as to whether a person who determinedly takes part in the process of selection can turn around and question the scheme of selection is no longer res integra. Paragraph nos. 13 to 18 of the aforesaid judgment, read as follows:
"19. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of experts. It was only after he was not selected for appointment, turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post.
20. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.
21. In Dr. G. Sarana vs. University of Lukcnow & Ors., (1976) 3 SCC 585, a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held:-
"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: "It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."
22. In Madan Lal & Ors. vs. State of J&K & Ors. (1995) 3 SCC 486, similar view has been reiterated by the Bench which held that:-
"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
23. In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576, this Court reiterated the principle laid down in the earlier judgments and observed:-
"We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
24. In the case of Ramesh Chandra Shah and others vs. Anil Joshi & Others, (2013) 11 SCC 309, recently a Bench of this Court following the earlier decisions held as under:-
"In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
In the case of Ashok Kumar & Another Vs. State of Bihar & Others reported in (2017) 4 SCC 357, the Apex Court has opined that those candidates who had taken part in the selection process astute with the procedure laid down therein were not authorized to question the same.
In view of the aforementioned established proposition of law, this Court is of the view point that as the petitioners applied pursuant to the news item/advertisement with open eyes and were declared eligible, they are not enabled to contest the said news item/advertisement after their admissions have been annulled by the respondent-University, as the same is antagonistic to the Ordinances, 2018. Hence, the Issue No.2 is also in negative to the petitioners.
29. This Court is now going to scrutinize the issue, as raised by the learned counsel for the petitioners that the principles of estoppels and acquiescence will apply against the University in the actualities of the present case.
It is settled proposition of law that estoppel does not lie against the Statute. (Vide Delhi Development Authority Vs. Ravindra Mohan Aggarwal & Ors., (1999) 3 SCC 172; and M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu & Ors., (1999) 6 SCC 464). Nor the Court has an authority to issue any direction contrary to law. (Vide Union of India & Ors. Vs. Kirloskar Pneumatic Co. Ltd., (1996) 4 SCC 453; State of U.P. & Ors. Vs. Harish Chandra & Ors., (1996) 9 SCC 309; Vice Chancellor, University of Allahabad & Ors. Vs. Dr. Anand Prakash Mishra & Ors., (1997) 10 SCC 264; and Shish Ram & Ors. Vs. State of Haryana & Ors., (2000) 6 SCC 84).
A Constitution Bench of the Hon'ble Apex Court in Dr. H.S. Rikhy etc. Vs. The New Delhi Municipal Committee, reported in AIR 1962 SC 554, has emphatically held that question of estoppel does not arise against Statute, and the Court placed reliance upon paragraph 427 of Volume XV, 3rd Edition of the Halsbury's Law of England, wherein it has been observed as under:-
"Results must not ultra vires - A party cannot, by representation, any more than by other means, raise against himself an estoppel so as to create a state of things which he is legally disabled from creating. Thus, a corporate or statutory body cannot be estopped from denying that it has entered into a contract which it was ultra vires for it to make. No corporate body can be bound by estoppel to do something beyond its powers, or to refrain from doing what it is its duty to do.. . . . "
The Apex Court in the said case precluded an analogous contention observing as under:-
"In this connection, it is also convenient here to notice the argument that the Committee is estopped by its conduct from challenging the enforceability of the contract. The answer to the argument is that where a Statute makes a specific provision that a body corporate has to act in a particular manner and no other, that provision of law being mandatory and not directory, has to be strictly followed."
Similar view has been recapped by the Apex Court in Bengal Iron Corporation Vs. Commercial Taxes Officer & Ors., AIR 1993 SC 2414; S. Saktivel Vs. M. Venugopal Pillai, (2000) 7 SCC 104; Chandra Prakash Tiwari Vs. Shakuntala Shukla, (2002) 6 SCC 127; and I.T.C. Ltd. Vs. Person Incharge, AMC, Kakinada & Ors., (2004) AIR SCW 792.
Similarly, in A.C. Jose Vs. Sivan Pillai reported in AIR 1984 SC 921, a similar view has been reiterated by the Apex Court perceiving as under:-
"Lastly, it was argued by the counsel for the respondents that the appellant would be estopped from challenging the mechanical process because he
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did not oppose the introduction of this process, although he was present in the meeting personally or through his agent. This argument is wholly untenable because when we are considering a constitutional or statutory provision, there can be no estoppel against a Statute and whether or not the appellant agreed or participated in the meeting, which was held before introduction of the voting machines. If such a process is not permissible or authorised by law, he cannot be estopped from challenging the same." In Union of India & Ors. Vs. Godfrey Philips India Ltd., reported in (1985) 4 SCC 369, it was held by the Apex Court that:- "There can be no promissory estoppel against the Legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition..........promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. ........promissory estoppel being an equitable doctrine, it must yield when the equity so requires; if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it....." Thus, in interpretation of the above, the question of application of estoppel against Statute/Public Policy does not arise, as the Ordinance, 2018 outlined by the respondent-University has a statutory dynamism and the respondent-University cannot be constrained to take admission of a student against the qualifications prescribed in statutes. As such, the issue as raised by the learned counsel for the petitioners has no force and the same cannot be acknowledged. 30. It is no doubt accurate that all the concerns deliberated herein above have gone against the petitioners, in view of the conclusions of the Apex referred to above but this Court also cannot lose of the sight of the fact that despite the fact that in the news item/advertisement notified by the respondent-Commission, it has unambiguously been stated that the candidates are required to possess minimum second division marks in Graduation, the petitioners, who did not possess the second division marks in Graduation, the petitioners applied pursuant to the aforementioned news item/advertisement, and they themselves postured them in a situation, where at the time of scrutiny of their eligibility i.e. after nearly two years, they were found ineligible on account of not having minimum second division marks in graduation as per Clause 3.1 (b) of University Research Ordinances, 2018, but it is also correct that there is a fault on the part of the respondent-University, which declared the petitioners eligible for Research Eligibility Test and they have continued in the Pre Ph.D. Course for nearly two years, meaning thereby that the petitioners have spent his tresurable time in enduring the same. 31. In assessment of the aforesaid, this Court finds that the petitioners as well as the respondent-Commission are found at culpability in admissions of the petitioners, which is disagreeing to the Ordinances of the respondent-university. This Court under Article 226 of the Constitution of India is a Court of equity and impartiality, therefore, the justice should be done between the parties with the same fair-mindedness. Considering the issue of equity, the Apex Court in the case of Ashok Chand Singhvi Vs. University of Jodhpur & Ors. reported in 1989 Supreme (SC) 38 in paragraph-17, has held that candidate cannot be made to suffer adversity for impreciseness and onerousness of authorities-Statutes, rules and regulations of University. Relevant portion whereof read as follows: ".........At the same time, this Court took the view that the fault lay with the engineering colleges which admitted the appellants and that there was no reason why the appellants should suffer for the sins of the management of these engineering colleges. Accordingly, this Court allowed the appellants to continue their studies in the respective engineering colleges in which they were granted admission. The same principle which weighed with this Court in that case should also be applied in the instant case. The appellant was not at fault and we do not see why he should suffer for the mistake committed by the Vice-Chancellor and the Dean of the Faculty of Engineering." The Calcutta High Court, in the case of Dr. Pawan Kumar Agarwal & Etc. vs. The University of Calcutta And Anr. reported in AIR 1998 Cal 105, has held as follows: "87. It appears therefore that the Vice-Chancellor acted mechanically and without application of his mind and passed order which had the penal consequence affecting the career of the students. The Vice-Chancellor acted merely on the basis of the observations of the Dean and did not personally apply his mind which he should have after giving opportunity to the petitioners to explain their position. Facts on record as already noted clearly demonstrate that the Vice-Chancellor did not apply his mind in taking such decision of cancellation of admission and failed to consider all aspects of the matter. 88. Accordingly I am of the opinion that there is gross violation of natural justice and absence of fairplay and fairness in action. The petitioners should not be made to suffer for the alleged irregularity in the internal administration of the University. The petitioners have already completed their studies and have appeared at the examinations. The order of cancellation of admission dated 23rd August, 1993 is accordingly set aside. The University is directed to publish the result of the petitioners forthwith." Again the Apex Court Court, in the case of Rajendra Prasad Mathur Vs. Karnataka University & Another reported in 1986 (Supp) SCC 740, has held that though the appellants were not eligible for admission to the engineering degree course and they had no legitimate entitlement to such admission but the blameworthiness for their undeserved admissions must lie more upon the engineering colleges which contracted admission than upon the appellant-students, because the Principals of these engineering colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to them. The appellants being fledgling students might have sincerely presumed that they were eligible for the admission. Therefore, notwithstanding the datum that the appellants were ineligible for the admission, they must be allowed to continue their studies in the respective engineering colleges in which they were granted admission. The relevant portion of the judgment of the Apex Court reads as follows: "8. ......................But it must be noted that the blame for their wrongful admission must lie more upon the Engineering Colleges which granted admission then upon the appellants. It is quite possible that the appellants did not know that neither the Higher Secondary Education of the Secondary Education Board, Rajasthan nor the first year B.Sc. Examination of the Rajasthan and Udaipur Universities was recognised as equivalent to the Pre-University Examination of the Pre-University Education Board, Bangalore. The appellants being young students from Rajasthan might have presumed that since they had passed the first year B.Sc. Examination of the Rajasthan or Udaipur University or in any event the Higher Secondary Examination of the Secondary Education Board, Rajasthan they were eligible for admission. The fault lies with the Engineering Colleges which admitted the appellants because the Principals of these Engineering Colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants. We do not see why the appellants should suffer for the sins of the managements of these Engineering Colleges. We would therefore, notwithstanding the view taken by us in this Judgment allow the appellants to continue their studies in the respective Engineering Colleges in which they were granted admission. But we do feel that against the erring Engineering Colleges the Karnataka University should take appropriate action because the managements of these Engineering Colleges have not only admitted students in eligible for admission but thereby deprived an equal number of eligible students from getting admission to the Engineering Degree Course. We also endorse the directions given by the learned Judge in the penultimate paragraph of his Judgment with a view to preventing admission of ineligible students. The Delhi High Court in its latest judgment in the case of Abha George & Ors. vs. All India Institute of Medical reported in 2022 SCC Online Del 366, following the numerous rulings of the Apex Court has held that in the actualities and surroundings of the case, the respondents cannot be endorsed to take benefit of their identifiable wrong and cannot be permitted to take the entreaty that under the prospectus they had the authority to terminate the admission of ineligible students and the principle of estoppel will steer against them. The respondents are estopped from annulling the admission of the petitioners and further from thwarting them from pursuing the 'Pre Tib' course in the contemporaneous realities and statuses. 32. This Court also cannot loose sight of the element that human approach does not entail leaning in favour of one party. The Courts and Tribunals, while dealing with the statutory provisions, should not be channelled with altruistic contemplation and emotional appeal for the reason that if Courts advance on these basis, it would amount to fluctuating or modifying the statutory provisions or necessities of law. In Madamanchi Ramappa & Anr. Vs. Muthaluru Bojjappas, AIR 1963 SC 1633, the Apex Court held as under:- "What is administered in courts is justice according to law and consideration of fair play and equity however important they may be, must yield to clear and express provisions of the law." Correspondingly, in Gauri Shanker Gaur Vs. State of U.P. reported in AIR 1994 SC 169, it has been held by the Apex Court that "in interpreting a statute even handedness will not discharge against a public statute of broad spectrum policy in cases admitted to fall within the statute and it is the responsibility of the Court to give effect to the legislative intent." Thus, equity can supplement to but cannot supplant the statutory provisions and if any room is given for impartiality or compassion, the recruitment rules would become nugatory and field would be left open for nepotism. Thus, it is not permissible to bend the law for adjusting equity. (Vide Ahmedabad Municipal Corporation Vs. Virendra Kumar Patel, (1997) 7 SCC 650; and Smt. Rampati Jaiswal Vs. State of U.P. & Ors., AIR 1997 All. 170). 33. However, bearing in mind the element that the petitioners have been granted admissions to Pre-Ph.D. course by the respondent-University, despite the datum that they did not possess second division at graduate level, as is essential under news item/advertisement acquainted by the respondent-University, as per Clause 3.1 (b) of the Ordinances, 2018 and they have perused their studies for nearly two years as also the information that in the said admission of the petitioners, both the petitioners as well as officials/officers of the respondent-University are also accountable and till date of final hearing of this matter, no officer or official has been penalized by the respondent-University for yielding erroneous admissions to the petitioners as well as seeing their bright career, this Court feels it apposite in the interest of substantial justice to direct the respondent-Univerrsity to authorization of the petitioners to complete their Pre-Ph.D. course treating this case to be distinctive. It is ordered, accordingly. 34. It is clarified that this case will not be taken as a precedent. 35. Both these writ petitions stand disposed of subject to the observations made above.