# Abhimanyu and others v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1440
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-10-10
- **Case number:** Writ Petition No. 6743 (MS) of 2011
- **Bench:** Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhimanyu-and-others-v-state-of-u-p-and-others-42074
- **Pages:** 7

## Text

1440 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
petitioner be directed to live with her
parents. The petitioner, however, being
married and having been rehabilitated in
her matrimonial home, no purpose would
be served in law, nor it would be in the
interest of families to have the petitioner
live in her parental house.

(Delivered by Hon'ble Ajai Lamba, J.

(C.M.A. No.126252 of 11:Application for
disposal of writ petition)

1. This application prays for disposal
of the main petition in view of changed
circumstances.

2. Mohd. Iliyas, father of the alleged
victim namely Sharifunnisa, lodged an
F.I.R. alleging commission of offence under
Sections 363 and 366 of the Indian Penal
Code. The alleged victim Sharifunnisa,
petitioner, admittedly has attained age of
majority and has married of her own accord
with
Halim
S/o
Mohd.
Sajjad
on
17.09.2011.

3. As per contents of the application,
the parties have settled their disputes by
way of compromise, which has also been
placed on record alongwith application.

4. Learned counsel contends that in
view of the stand of the complainant and the
alleged victim, who is living in her
matrimonial home, no purpose would be
served by continuance of proceedings.
Rather, matrimonial life of the petitioner
and her husband would be disturbed.

5. Learned counsel for parties pray
that the petition be disposed of and order
dated 10.10.2011 passed by the concerned
Magistrate be quashed.

6. I have considered the contention of
the learned counsel for parties.

7. It appears that the parties have
settled their disputes by way of compromise
and the husband and wife are now living
together. Even the complainant, who
happens to be the father of the alleged
victim, has prayed for disposal of the
petition in view of compromise.

8. In view of the above facts and
circumstances of the case, it would be in the
interest of peace and harmony to allow the
petition. Direction issued by the Magistrate
in the impugned order dated 10.10.2011 is
to the effect that the petitioner be directed to
live with her parents. The petitioner,
however, being married and having been
rehabilitated in her matrimonial home, no
purpose would be served in law, nor it
would be in the interest of families to have
the petitioner live in her parental house.

9. Writ petition is accordingly
allowed. Order dated 10.10.2011 is hereby
quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.11.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.

Writ Petition No. 6743 (MS) of 2011

Abhimanyu and others ...Petitioners
Versus
State of U.P. and others

 ...Opposite parties

Constitution
of
India,
Article
226admission in under graduate programminimum eligibility criteria fixed by the
Govt. as 50% for general candidate and
45% for reserve category in 10+2 exam-
3 All] Abhimanyu and others V. State of U.P. and others
1441
challenge on ground once the Apex body
in meeting dated 30.06.2011 decided
criteria as 45% for general and 40 % for
SC/ST under AICTE Act 1987-examining
body ample power to regulate improving
academic standers-policy unless mala
fide, arbitrary or unfair-can not be
subjected to judicial review by Writ
Court.

Held: Para 20

It may also be noted that the policy
decision must be left to the Government
as it alone can adopt which policy should
be adopted after considering all the
points from different angles. In matter of
policy decisions or exercise of discretion
by the Government so long as the
infringement of fundamental right is not
shown, it is not open for the court to
interfere. At the same time, it is also true
that the courts, in exercise of their
power
of
judicial
review,
do
not
ordinarily
interfere
with
the
policy
decisions of the executive unless the
policy can be faulted on ground of
malafide,
unreasonableness,
arbitrariness or unfairness.
Case law discussed:
[(2000) 5 SCC 231]; [(2000) 9 SCC 1]; [AIR
2004 SC 1861]; [(1999) 7 SCC 120]; [(2001) 9
SCC 157]; [(2011) 4 SCC 527]

(Delivered by Hon'ble Rajiv Sharma, J. )

1. As the common question of facts
and law are involved in both the writ
petitions, they are taken up together for
common orders.

2. Heard Mr. Kapil Dev, Senior
Advocate
assisted
by
Mr.
Pratyush
Tripathi, Mr. Anurag Narain, learned
Counsel for the petitioners, Mr. Sanjay
Sarin, learned Standing Counsel, Mr.
Sailesh Kumar, learned Counsel for the
AICTE and Mr. Waseequddin Ahmed,
learned Counsel for the University.

3. Afore-captioned writ petitions are
directed against the impugned orders dated
10.10.2011 and 15.11.2011 issued by the
State Government, by means of which the
eligibility
criteria
in
entry
level
qualification for admission in UnderGraduate programmes has been fixed as
50% for the General Candidates and 45%
for the SC/ST candidates, which is against
the decision of the Apex Body, i.e. All
India Council for Technical Education
approved in its meeting dated 28.6.2011 by
which the entry level qualification for
admission in Under-Graduate programmes
was fixed as 45% for the General
Candidates and 40% for the SC/ST
candidates.

4.

Learned
Counsel
for
the
petitioners submit that under the All India
Council for Technical Education Act, 1987
(hereinafter referred to as the Act for the
sake of brevity), it has been empowered to
frame rules and regulations for proper
management of norms and standard of
technical education. The said Regulations
are applicable to the Universities and
Technical Institutions of Government,
Government Aided and Private (SelfFinancing) institutions conducting the
courses in the field of Technical Education,
Training and Research in Engineering,
Technology,
including
MCA,
MBA,
Pharmacy, Hotel Management etc. notified
by the Council from time to time.

5. Petitioners of aforementioned writ
petitions
are
having
the
requisite
qualification as per the eligibility criteria
fixed by the AICTE. According to them,
by notification dated 4.7.2011, the Apex
Body
has
defined
the
entry
level
qualifications for admission in UnderGraduate programmes. The matter was
reviewed by the Executive Committee of
1442 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the Apex Body in its 69th meeting held on
28th June, 2011 and by the Council in the
21st meeting held on 30th June, 2011 and
as per the decision of the Council, the
eligibility for under-graduate programmes
(full time) given under 1.1 of Appendix-1
of Approval Process Handbook 2011-12 is
now 45% at qualifying level for general
category students and 40% for reserved
category students for admission for the
year 2011-12.

6. The grievance of the petitioners is
that they are being denied regular
admission in B.Tech course against the
vacant seats though they possess 45%
marks as prescribed by the AICTE and as
such denial of regular admission is wholly
arbitrary and unjustified.

7. It has been argued by the Counsel
for the petitioners that the University or the
State Government cannot impose any
restriction on the institution which is in
utter disregard and contravention of the
provisions of the AICTE as no policy can
be laid down, which lies outside the scope
of the Act. The action of the opposite
parties is in gross breach of the provisions
contemplated under Article 19 (1) (g) of
the Constitution of India and the same is
also in violation of the Jaya Gokul
Educational Trust v. Commissioner-cumSecretary, Higher Education and others
[(2000) 5 SCC 231] and 'State of
Maharashtra
v.
Sant
Dhyaneshwar
Shikshan Shastra Mahavidyalaya and
others [(2000) 9 SCC 1].

8. In rebuttal, Mr. Waseequddin
Ahmed, learned Counsel for the University
submits that the UPSEE - 2011 was
conducted
by
Mahamaya
Technical
University, which was held on 16.4.2011
and 17.4.2011 respectively for different
technical
courses,
including
B.Tech.,
M.B.A., M.C.A., etc. The minimum marks
to appear in the examination were
modified as 50% marks for General
Category and 45% marks for reserved
category as per eligibility criteria laid
down by the AICTE in its Approval
Process Handbook 2011. He further
submits that the Mahamaya Technical
University had already informed the public
at large vide notice dated 7.2.2011 and in
all the leading newspapers and also
through
its
website
much
before
examination scheduled for 16.4.2011 and
17.4.2011 respectively.

9.

Elaborating
his
arguments,
Counsel for the respondents submitted that
the petitioners possessed below 50 %
marks in 10+2 and as such they do not
fulfill the minimum eligibility criteria as
fixed
by
the
Mahamaya
Technical
University while conducting UPSEE20011, therefore, they are not entitled to
any relief from this Hon'ble Court.

10. Lastly, it has been submitted that
number of writ petitions involving similar
controversy have already been dismissed
and the petitioners have been refused the
relief so sought and as such on this ground
alone, writ petitions are liable to be
dismissed.

11. The main and the only question
that arises for consideration is whether it
was open for the State Government to
prescribe higher qualifications than the
minimum qualifications prescribed by the
AICTE.

12. Considered the submissions made
by the learned counsel for the parties and
perused the record.
3 All] Abhimanyu and others V. State of U.P. and others
1443

13. It needs to be noticed that the
AICTE has only prescribed the minimum
qualifications. The State Government, in
its wisdom, could therefore, prescribe
qualifications higher than the qualifications
prescribed by the AICTE but certainly
could
not
have
prescribed
lower
qualifications. This view of mine is
strengthened by the decisions of the Apex
Court in State of Tamil Nadu and
another v. S. V. Bratheep (minor) and
others [AIR 2004 SC 1861], following its
earlier decision in Dr. Preeti Srivastava
and another v. State of M.P. And others
[(1999) 7 SCC 120] and the observations
are as under:-

"..... The appellant in the present case
prescribed the qualification of having
secured certain percentage of marks in the
related subjects which is higher than the
minimum in the qualifying examination in
order to be eligible for admission. 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 standards 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.

Arguments 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
Srivastava's case that the State can always
fix a further qualification or additional
1444 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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. ............."

14. Thus, it cannot be said that the
impugned order issued by the State
Government whereby the eligibility criteria
in entry level qualification for admission in
under-graduate programmes has been fixed
as 50% for the general candidates and 45%
for the SC/ST candidates is unjustified or
suffer
from
infirmities.
The
State
Government is well competent to prescribe
higher qualifications than the minimum
qualifications prescribed by the AICTE in
its notification dated 7th February, 2011.

15. Fixing of percentage for entry
level examination in professional courses
is a policy decision of the State
Government or the Examining Body.
Therefore, the Court should not substitute
its own opinion for that of the expert body
which is entrusted with the work to find
out as to what principle or policy would
best serve the objects and purposes of the
examination and the Courts shall not sit in
judgment
over
the
wisdom
and
effectiveness or otherwise of the policy
laid down by the academic body. It is
exclusively within the domain of the
academic body to determine, as a matter of
policy,
what
measures
should
be
incorporated for the efficient holding of
examination.

16. It has been brought to the notice
of the Court that 19 petitioners of Writ
Petition
No.
6743
(MS)
of
2011,
Abhimanyu and others Versus State of
U.P. and others having below 50% marks
in 10+2 and as such, they do not fulfill the
minimum eligibility criteria fixed by the
University while conducting the UPSEE2011. Therefore, the State Government
vide order dated 10.10.2011 passed a
detailed order in compliance of the
judgment and order dated 25.8.2011
passed in Writ Petition No. 47505 of 2011.
The relevant portion of the order dated
25.8.2011 is reproduced hereunder:-

"State Government is the best judge to
see what should be standard in technical
education in the State of U.P. and State
Government is fully empowered to fix
eligibility
criteria
of
qualifying
examination over and above the eligibility
criteria
fixed
by
AICTE.
In
this
background once decision has been taken
on 04.07.2011 by AICTE and discussion
has been made by Central Committee in its
meeting dated 13.07.2011 and there it has
been mentioned that Central Admission
Committee would consider the matter after
counselling process is over. The matter is
thus engaging attention. As per Resolution
No. 7.6 quoted above as such Technical
University Noida is directed to ensure that
said meeting is held at the earliest as per
convenience of the members who are to
participate therein preferably within two
months and thereafter on the basis of
decision so taken matter be referred to the
Principal Secretary Technical Education
who will take final decision in the matter in
accordance with law, keeping in view the
over all situation."

17.

In
Thapar
Institute
of
Engineering & Technology and another
3 All] Abhimanyu and others V. State of U.P. and others
1445
versus Gagandeep Sharma and another
[(2001) 9 SCC 157], the Apex Court
observed that the court would normally not
interfere with such prescribed standards
and especially when they are intended to
improve the academic standards in their
respective institutes.

18. In Bhartia Education Society
and another versus State of Himachal
Pradesh and others [(2011) 4 SCC 527,
the Apex Court held that the examining
body can impose its own requirements in
regard to eligibility of students for
admission to a course in addition to those
prescribed by NCTE.

19. Thus, it is imminently clear that
the State Government and the examining
body has ample power to regulate the
manner of admission for improving the
academic standards in Institutions. The
impugned government orders cannot be
said
to
be
in
breach
of
the
recommendations of the AICTE or in
violation of any Article of the Constitution
as
if,
higher
minimum
marks
are
prescribed, it would certainly add to the
excellence in the matter of admission of
the
students
in
higher
education.
Furthermore, it cannot be said that the
prescriptions formulated 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 in
professional courses.

20. It may also be noted that the
policy decision must be left to the
Government as it alone can adopt which
policy should be adopted after considering
all the points from different angles. In
matter of policy decisions or exercise of
discretion by the Government so long as
the infringement of fundamental right is
not shown, it is not open for the court to
interfere. At the same time, it is also true
that the courts, in exercise of their power
of judicial review, do not ordinarily
interfere with the policy decisions of the
executive unless the policy can be faulted
on ground of malafide, unreasonableness,
arbitrariness or unfairness.

21. In view of the aforesaid
discussions, I am of the firm opinion that
the petitioners are not entitled to any relief
and the writ petition is liable to be
dismissed.

22. It is not disputed by the Counsel
for the parties that number of the writ
petitions involving similar question have
already been dismissed. However, the
Counsel for the petitioners made a feign
attempt to show that the points raised in
the instant writ petition have not been
considered on earlier occasions. Having
examined the material on record and the
submissions made by the Counsel for the
parties, I find no force in the submission
advanced
by
the
Counsel
for
the
petitioners.

23. It is pertinent to add that
uniformity and consistency is core of
judicial
discipline. There
should
be
similarity in the orders passed by the Court
in the cases having identical facts and the
judgment passed in earlier case should be
respected by the co-ordinate bench in
identical matter. In these circumstances, it
would not be permissible to take different
view on the same set of facts and question
of law when earlier writ petitions involving
identical question of law have been
dismissed.
1446 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

24. Thus these writ petitions are
liable on this ground too as the similar writ
petitions have already been dismissed.

25. Taking the holistic view of the
matter, I find no good ground to interfere
under Article 226 of the Constitution and
the writ petitions are hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.12.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

Misc. Bench No. - 11512 of 2011

Munnu and another

 ...Petitioner
Versus
State of U.P.Through Prin. Secy. Revenue
Lko. and others

 ...Respondents

Counsel for the Petitioner:
A.P.Singh Vats

Counsel for the Respondents:
C.S.C.

Urban Land (Ceiling & Regulation ) Act
1976-repealed by Urban Land (Ceiling &
Regulation) Repeal Act 1999-Section-4Abatement
of
proceeding-pending-on
date of enforcement date 18.03.1989-all
proceedings stand automatically abated
in view of law laid down by Apex Court in
Ritesh Tiwari case.

Held: Para 5

In view of above, we dispose of the writ
petitions finally directing the revenue
authorities/respondents to abide by the
judgment
of
Hon'ble
Supreme
Court(supra) and not to interfere with
the petitioners' peaceful possession of
the land in question in case in view of
the provisions contained in 1976 Act
(supra),
the
State
had
not
taken
possession of the land in dispute.
Case law discussed:
(2007) 11 SCC 90; 2011 (3) SCCD 1382 (SC)

(Delivered by Hon'ble Devi Prasad Singh,J. )

1. In this bunch of writ petitions,
common question of facts and law are
involved, hence, the writ petitions are
taken up together and are being disposed
of by the present common judgment with
the consent of the parties' counsel.

2. The land in dispute falls within
the domain of Urban Land (Ceiling and
Regulation)Act, 1976. It was repealed by
Urban Land (Ceiling and Regulation)
Repeal Act, 1999. According to the
petitioners' counsel, after repeal of the
Act,
the
proceedings
initiated
in
pursuance to the Repeal Act became
nonest and the petitioners are entitled to
retain the possession of land in question
with hereditary right. Attention of this
Court has been invited to the judgment of
Hon'ble Supreme Court in the case
reported in (2007)11 SCC 90 Mukarram
Ali Khan versus State of U.P and others
and other other judgment reported in
2011(3) SCCD 1382 (SC) Ritesh Tewari
and another versus State of U.P. &
others.

3. In the case of Mukkarram Ali
Khan (supra), their Lordships of Hon'ble
Supreme Court ruled that in view of
repeal of 1976 Act(supra) and being
adopted by the State of U.P by a
resolution as required under Art. 252(2)
of the Constitution and the repealing Act
having come into force in the State of U.P
with effect from 18.3.1999, all pending
proceedings under 1976 Act shall be
treated to have abated. The operation