# Ranjana Pandey v. Union of India and others

- **Citation:** (2007) 3 ILRA 743
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-03
- **Case number:** Civil Misc. Writ Petition No. 21717 of 2007
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ranjana-pandey-v-union-of-india-and-others-41138
- **Pages:** 11

## Headnote

Sri A.B.L. Gaur
Sri Vikash Budhwar
Sri Ram Gopal Tripathi
Addl. Solicitor General of India

National Council for Teachers Education
(Standards
Norms
&
Procedure)
Regulation
2005-Regulation3.201
readwith Policy framed by Allahabad
University for Admission B.Ed. Course
2006-07-clause 1.1.1 and 2.2-university
fixed minimum eligibility marks 40% in
each paper to appear in entrance Textwhile
NCTE
provides
50%
marks
whether
arbitrary,
excessive
or
in
violation of Regulation 3.2.1? -held-'No'
not in derogation-reasons explained.

Held: Para 19

In view of the aforesaid, this Court is of
the opinion that the policy adopted by
the University in fixing a minimum
eligibility criteria of obtaining 40%
marks in each paper, is not in derogation
of clause 3.2.1 of the NCTE Regulations.
In fact, the policy framed by the
University, is in accordance with clause
3.3 of the NCTE Regulations.
Case law discussed:
1995 (4) SCC-104, 2004 (5) E.S.C.-147, AIR
1998 SC-795, 2005 (3) ESC-1594, 2001 (3)
ESC-1257, 1986 Suppl. SCC-543, AIR 2003 SC235, 1998 (6) SCC-720, 2004 (1) ESC-19,
2003 (3) ESC-1478, 1995 (4) SCC-104, 2005
(6) AWC-6199

## Text

3 All] Ranjana Pandey V. Union of India and others
743
scam, it has shaken the roots of the
revenue department, it has shaken the
confidence of a common man. It has
attacked on a system. In such cases before
passing any order it has to be considered
that the confidence of a common man
may not be eroded.

7.

Considering
the
facts,
circumstances of the case, submissions
made by learned counsel for the applicant,
learned counsel for C.B.I. and in view of
the above discussions it appears that the
gravity of the offence is too much, it is a
big land scam in which the C.B.I. has
collected
the
material
against
the
applicant to show his involvement and
without expressing any opinion on the
merits of the case, the applicant is not
entitled for bail. The prayer for bail is
refused.

8. Accordingly this application is
rejected.

Application Rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2007

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 21717 of 2007

Ranjana Pandey

...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri Anil Tiwari

Counsel for the Respondents:
Sri A.B.L. Gaur
Sri Vikash Budhwar
Sri Ram Gopal Tripathi
Addl. Solicitor General of India

National Council for Teachers Education
(Standards
Norms
&
Procedure)
Regulation
2005-Regulation3.201
readwith Policy framed by Allahabad
University for Admission B.Ed. Course
2006-07-clause 1.1.1 and 2.2-university
fixed minimum eligibility marks 40% in
each paper to appear in entrance Textwhile
NCTE
provides
50%
marks
whether
arbitrary,
excessive
or
in
violation of Regulation 3.2.1? -held-'No'
not in derogation-reasons explained.

Held: Para 19

In view of the aforesaid, this Court is of
the opinion that the policy adopted by
the University in fixing a minimum
eligibility criteria of obtaining 40%
marks in each paper, is not in derogation
of clause 3.2.1 of the NCTE Regulations.
In fact, the policy framed by the
University, is in accordance with clause
3.3 of the NCTE Regulations.
Case law discussed:
1995 (4) SCC-104, 2004 (5) E.S.C.-147, AIR
1998 SC-795, 2005 (3) ESC-1594, 2001 (3)
ESC-1257, 1986 Suppl. SCC-543, AIR 2003 SC235, 1998 (6) SCC-720, 2004 (1) ESC-19,
2003 (3) ESC-1478, 1995 (4) SCC-104, 2005
(6) AWC-6199

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Admissions in B.Ed. course is
governed by the regulations framed by
National Council for Teacher Education
(Standards
Norms
and
Procedures)
Regulations 2005 (hereinafter referred to
as the 'NCTE'). These Regulations were
amended
by
a
notification
dated
20.7.2006
wherein
the
norms
and
standards were modified. Previously the
minimum eligibility for admission was
45% marks in a Bachelor's degree or in a
Master's Degree, but after the amendment,
vide notification dated 20.7.2006, the
eligibility criteria was increased from
45% to 50%. The controversy involved in
744 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the present petition revolves around
clause 3.2.1, 3.2.3 and 3.3 of the
Regulations framed by NCTE. For facility
the said Regulations are quoted herein
below:-

"3.2.1 Candidate with at least 50% marks
either in the Bachelor's Degree
and/or in the Master's degree or
any other qualification equivalent
thereto, are eligible for admission
to the programme.

3.2.2 There
shall
be
relaxation
of
marks/reservation
of
seats
for
candidates belonging to SC/ST/
OBC
communities
and
other
categories as per the Rules of the
Central / State Government, U.P.
Administration concerned.

3.3. Admission Procedure
Admission shall be made on merit on
the basis of marks obtained in the
qualifying examination and/or in the
entrance examination or any other
selection process as per the policy of the
State Government, U.P. Administration
and the University."

2. From a perusal of clause 3.2.1, it
transpires that the candidates who held
50% marks either in B.A. or in M.A. or in
an equivalent examination would be
eligible for admission to the programme.
Clause 3.3 prescribes the procedure for
the
admission
and
stipulates
that
admissions would be made on merit on
the basis of the marks obtained in the
qualifying examination and/or in the
entrance examination or through any
other selection process, as per the policy
of the authorities or the University, as the
case may be.

3. The B.Ed. course is being
conducted in two colleges in the district
of Allahabad, namely, K.P. Training
College and S.S. Khanna Girls Degree
College. The present dispute is with
regard to the denial of admission to the
petitioner in S.S. Khanna Girls Degree
College. The aforesaid two colleges are
constituent colleges of the Allahabad
University which has been declared to be
a Central University by the University of
Allahabad Act 2005.

4. As per clause 3.3 of the
Regulations, the University has framed its
own policy providing the procedure for
the admission in the B.Ed. Course. A
copy of the policy framed by the
University is enclosed as Annexure 4 to
the writ petition. A perusal of the policy
framed for the B.Ed. course 2006-07
indicates that the forms would be made
available from 5.10.2006 to 17.10.2006
and that the examination would be
conducted on 12.11.2006. Clause 1.1.1 of
the policy indicates that a candidate must
possess a minimum of 40% marks in B.A.
in order to be eligible for applying for the
B.Ed. course. Clause 2.2. stipulates that a
candidate would be required to appear in
a
common
entrance
examination
conducted by the University and if the
candidate obtained 40% marks in each
paper, he would qualify and would be
eligible to be included in the select list.
Clause 2.6 stipulates that the marks
obtained in the examination papers would
be, computed and added together and
thereafter weightage, if any, would be
given and thereafter the candidate would
be placed in the select list.

5. Based on the aforesaid policy
framed by the University, the petitioner
applied for the B.Ed. course and appeared
3 All] Ranjana Pandey V. Union of India and others
745
in
the
entrance
examination.
The
petitioner secured 35% marks in one
paper and 45% in the second paper. Since
she did not fulfil the minimum eligibility
requirement contemplated under Clause
2.2, namely 40% marks in each paper, she
could not qualify and therefore, her name
did not appear in the list of successful
candidates.

6. It is pertinent to mention here that
the
examination
was
conducted
in
November, 2006. It has been stated at the
Bar that within a fortnight thereafter, the
results were declared in December, 2006
and thereafter the session had begun.
Admittedly, the course is of one year. The
present writ petition was filed on
1.5.2007, after more than 5 months from
the date of the declaration of the result.
The petitioner has prayed for the
following reliefs, namely,

i.
Issue a writ, order or direction in the
nature of certiorari calling for the
records of the case and to quash the
para 2.2 and 2.6 of the rules, in so
far as the same provides minimum
cut of marks and addition of
weightage after securing minimum
40%
marks
as
violative
of
regulations 2006, namely "National
Council for Teacher Education
(Standards Norms and Procedure)
(Amendment) Regulations 2006"
framed by N.C.T.E. (Annexure No.2).

ii.
Issue a writ, order or direction in the
nature of mandamus directing the
respondents to admit the petitioner in
B.Ed. Course session 2006-2007 by
treating her eligible in as much as
she has obtained total 169.75 marks,
whereas the lowest merit is 166
marks."
7. Heard Sri Anil Tiwari, the learned
counsel for the petitioner, Sri A.B.L.
Gaur, the learned senior counsel for the
University of Allahabad and Sri Vikash
Budhwar, the learned counsel appearing
for the Committee of Management of Sri
S.S. Khanna Girls Degree College,
Allahabad.

8. The learned counsel for the
petitioner submitted that as per the
regulation
framed
by
NCTE,
the
minimum
eligibility
criteria
for
a
candidate to apply for a B.Ed. course is,
that the candidate must have a minimum
marks of 50%, whereas the University
had fixed 45% as the minimum eligibility
criteria in the qualifying examination. The
fixation of 45% marks was done by the
University as per the norms fixed by the
regulation of 2005 whereas it should have
been 50% as per the notification dated
20.7.2006. Consequently, the learned
counsel submitted that the entire selection
process conducted by the University was
ex-facie illegal and against clause 3.2.1 as
amended
by
the
notification
dated
20.7.2006. The learned counsel further
submitted that the criteria fixed by the
University for conducting an entrance
examination was higher than the criteria
fixed by the NCTE norms, that is to say
the criteria fixed by the University under
clause 2.6 and 2.2 requiring a candidate to
obtain a minimum of 40 marks in each
paper was in violation of clause 3.2.1 of
the NCTE Regulations and therefore,
submitted that clauses 2.2 and 2.6 of the
Regulations framed by the University
should be quashed. The learned counsel
also submitted that out of 100 seats
available in the College, 15% are filled up
through the management quota and 48
seats were filled up through the common
entrance examination and that 31 seats
746 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
remained vacant which could not be filled
up
till
date.
The
learned
counsel
submitted that no useful purpose would be
served in keeping the 37 seats vacant for
the remainder of the academic course and
therefore, the University should be
directed to relax the norms of obtaining
the minimum marks in the common
entrance examination. Alternatively, the
College may be allowed to fill the
remaining seats on the basis of the select
list prepared by them on the basis of the
qualifying
marks
obtained
by
the
candidate. In support of his submission,
the learned counsel placed reliance on a
decision of the Supreme Court in the case
of State of Tamil Nadu and another vs.
Adhiyaman Educational & Research
Institute and others, (1995)4 SCC 104.

9. The learned counsel for the
College supported the contention of the
petitioner and further submitted that the
left over seats may be filled up in
accordance with the select list prepared by
the College on the basis of the qualifying
marks. In support of his submission the
learned counsel for the college also placed
reliance upon two decisions of this Court
in Welfare Association of Self Financed
Institutions and others vs. State of U.P.
and others, 2005(6) AWC 6199 and
Welfare Association of Self Financed
Institutes, Noida and others vs. State of
U.P. and others, 2004(5) ESC 147.

10. On the other hand, Sri A.B.L.
Gaur, the learned counsel for the
University submitted that the admission
procedure adopted by the University was
in accordance with the procedure laid
down in the policy framed by the
University, which in turn, was in
accordance with clause 3.3 of the
regulations framed by NTCE. The learned
counsel
for
the
University
further
submitted
that
the
University
of
Allahabad has been declared to be a
Central University and it is the endeavour
of the University to ensure that high
standard of education is maintained and
therefore, there was no question of
reducing the standard of examination
conducted by them or reducing the
minimum eligibility criteria for the
common
entrance
examination.
The
learned
counsel
for
the
petitioner
submitted that if the standards are
lowered, it would render futile, the entire
exercise
of
conducting
a
common
entrance examination.

11. Having given my considerable
thought in the matter and after hearing the
parties at length, this Court is not at all
impressed by the submission made by the
learned counsel for the petitioner. No
doubt, the NCTE norms, as modified by
the
notification
dated
20.7.2006,
stipulated that the eligibility criteria for a
candidate to apply for a B.Ed. course was
50%
marks
in
the
qualifying,
examination, i.e. in the B.A. examination
or an examination equivalent thereto. The
University had taken the old norms fixing
the eligibility criteria of 45% in the
qualifying examination. In my opinion,
the mere fact that the University had fixed
45% marks for applying in the B.Ed.
course would not make the entire
selection void or illegal for the reasons,
namely, that there is no allegation made in
the writ petition that a person holding
45% to 49% marks in the qualifying
examination succeeded in the entrance
examination and thereafter obtained an
admission in the B.Ed. course. Further,
the selected candidates are not before this
Court. Consequently, in their absence, the
selection process cannot be set-aside on
3 All] Ranjana Pandey V. Union of India and others
747
this score. In my opinion, the fixation of
45% as the minimum eligibility criteria
for applying for B.Ed. course was a mere
irregularity and was not fatal to the
selection process. Further, this court is of
the opinion that once the petitioner had
participated in the admission process and
having failed to qualify, cannot turn
around
and
challenge
the
selection
process as being void. In this regard, there
are a plethora of decisions of this Court as
well as the Supreme Court.

In Union of India and another Vs.
N. Chandrasekharan and others, AIR
1998 SC 795, the Supreme Court
observed-

"It is not in dispute that all the
candidates were made aware of the
procedure for promotion before they sat
for the written test and before they
appeared
before
the
Departmental
Promotion Committee. Therefore, they
cannot turn around and contend later
when they found that they were not
selected, by challenging that procedure."

In Ramesh Rai Vs. Chairman,
S.K.G. Bank, Azamgarh and others,
(2005) 3 E.S.C.1594, a Division Bench of
this Court held-

"The petitioner did not raise the
issue at the time of selection and in view
of the settled legal proposition, as
explained above, he cannot be permitted
to agitate the issue merely because he
could not succeed in the selection
process."

Similarly,
in
Rajendra
Kumar
Srivastava and others Vs. Samyut
Kshetriya Gramin Bank and others,
(2001) 3 ESC 1257 a Division Bench of
this Court held -

"Moreover the petitioners and others
appeared in the interview and thus were
obviously aware of the fact that in the
interview merit is also to be taken into
consideration. Hence they should have
protested at that time but they appeared
in the interview without any protest.
Hence as held by the Supreme Court in
Union of India v. N. Chandrasekharan,
1998
(3)
SCC
694,
they
cannot
subsequently turn around and challenge
the selection."

In
Ambesh
Kumar
(Dr.)
vs.
Principal, LLRM Medical College,
1986 Suppl SCC 543, the Supreme Court
held that since the number of seats for
admission to various postgraduate courses
was limited and that a large number of
candidates applied for admission, the
impugned
order
laying
down
the
qualification for the candidates to be
eligible for being considered for selection
for admissions could not be said to be in
conflict with the regulations framed by
the Indian Medical Council, nor was in
any encroached upon the standards
prescribed by the said regulations.

12. In view of the aforesaid, the
submission of the learned counsel for the
petitioner to the effect that the selection
process was void as per clause 3.2.1 of the
NCTE norms cannot succeed and is
rejected.

13. On the question as to whether
the University had fixed a higher criteria
than laid down by clause 3.2.1 of the
NTCE Regulations, this Court is of the
opinion that the procedure framed by the
University was in accordance with the
748 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
provisions of clause 3.3 of the NCTE
norms and was not in violation of clause
3.2.1 or 3.2.2 of the NCTE Regulations.

14. In T.M.A. Pai Foundation vs.
State of Karnataka, AIR 2003 SC 235,
the Supreme Court recognised three
modes for judging the merit of a
candidate
for
an
admission
to
a
professional course. The Supreme Court
held that an admission in a private
unaided institution must be a merit based
selection. The merit is, determined for
admission in a professional course, by
marks that a student may obtain in the
qualifying examination or by a common
entrance test. The Supreme Court, in
paragraphs 58, 59 and 68 of the aforesaid
judgment held:

"58.
For
admission
into
any
professional institution, merit must play
an important role. While it may not be
normally possible to judge the merit of the
applicant who seeks admission into a
School, while seeking admission to a
professional institution and to become a
competent professional, it is necessary
that meritorious candidates are not
unfairly treated or put at a disadvantage
by preference shown to less meritorious
but
more
influential
applicants.
Excellence in professional education
would require that greater emphasis be
laid on the merit of a student seeking
admission. Appropriate regulations of this
purpose may be made keeping in view the
other observations made in this judgment
in the context of admissions to unaided
institutions.

59. Merit is usually determined, for
admission to professional and higher
education colleges, by either the marks
that the student obtain at the qualifying
examination or school leaving certificate
stage followed by the interview, or by a
common entrance test conducted by the
institution, or in the case of professional
colleges, by Government agencies.

68. It would be unfair to apply the same
rules
and
regulations
regulating
admission to both aided and unaided
professional institution. It must be borne
in
mind
that
unaided
professional
institutions are entitled to autonomy in
their administration while, at the same
time, they do not forego or discard the
principle of merit. It would, therefore,
permissible for the university or the
Government at the time of granting
recognition, to require a private unaided
institution to provide for merit based
selection while at the same time, give the
management
sufficient
discretion
in
admitting students. This can be done
through various methods. For instance, a
certain percentage of the seats can be
reserved
for
admission
by
the
management out of those students who
have passed the common entrance test
held by itself or by the State/University
and have applied to the college concerned
for admission, while the rest of the seats
may be filled up on the basis of
counseling by the State agency. This will
incidentally take care of poorer and
backward sections of the society. The
prescription
of
percentage
for
this
purpose
has
to
be
done
by
the
Government according to the local needs
and different percentages can be fixed for
minority
unaided
and
non-minority
unaided and professional colleges. The
same principles may be applied to other
non-professional but unaided educational
institutions viz. graduation and post
graduation non-professional colleges or
institutes."
3 All] Ranjana Pandey V. Union of India and others
749
15. In the light of the aforesaid
judgment, clause 3.2.1 provides that a
candidate must hold 50% marks in the
qualifying examination in order to be
eligible to apply for a B.Ed. course.
Clause 3.3 stipulates that the admission
would be made on merit on the basis of
the marks obtained in the qualifying
examination and/or (emphasis is mine) in
the entrance examination, as per the
policy of the University. Based on clause
3.3 of the Regulations, the University has
framed a policy, in order to short list the
candidates. It is well known that a large
number of candidates apply for a limited
number of seats and, in order to select
meritorious candidates, it is necessary to
conduct a common entrance examination
in order to remove the chaff from the
grain. The University, based on clause
3.3, has framed a policy stipulating that
an eligible candidate holding 45% marks
in the qualifying examination can apply
for a B.Ed. course and must obtain 40%
marks in each paper in order to be eligible
in the select list. The question is, whether
the criteria of 40% marks in each paper is
arbitrary, excessive or is the said criteria
in violation of Regulation 3.2.1 framed by
NCTE. The submission of the learned
counsel for the petitioner is that the
petitioner was eligible as per clause 3.2.1
of the NCTE Regulations, namely, that
the petitioner held more than 45% marks
in
the
qualifying
examination
and
therefore, was eligible for the B.Ed.
course but on the basis of the criteria
fixed by the University, the petitioner
became ineligible. In my opinion, clause
2.2 of the policy framed by the University
is not in derogation of clause 3.2.1 of the
Regulations framed by the NCTE. In fact,
clause 2.2 of the policy, framed by the
University, is in consonance with clause
3.3 of the NCTE Regulations.
16. In B.V. Sivaiah and others Vs.
K.Addanki Babu and others, (1998) 6
SCC 720, the Supreme Court held that for
assessing the minimum necessary merit,
the competent authority could lay down
the minimum standard that was required
and also prescribe the mode of assessment
of merit of the employee who was eligible
for consideration for promotion. The
Supreme Court held:

"For
assessing
the
minimum
necessary merit, the competent authority
can lay down the minimum standard that
is required and also prescribe the mode of
assessment of merit of the employee who
is
eligible
for
consideration
for
promotion. Such assessment can be made
by assigning marks on the basis of
appraisal of performance on the basis of
service
record
and
interview
and
prescribing the minimum marks which
would entitle a person to be promoted on
the basis of seniority-cum-merit."

17. Similarly in Vinod Kumar
Verma and others Vs. Union of India
and others, 2004 [1] All. ESC 19, a
Division Bench of this Court held-

"In our opinion, it is always open to
the
authorities
to
fix
a
minimum
requirement, which a candidate must have
before
he
can
be
considered
for
promotion on the basis of seniority-cummerit. Hence it is not correct to say that
only those who have some adverse entries
or other adverse material in their service
record
can
be
eliminated
while
considering promotions on the basis of
seniority-cum-merit.

No doubt one standard which the
authorities can adopt for determining
unfitness is the existence of adverse
750 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
material in the service record of the
candidate, but that is not the only way in
which the authorities can declare a
person unfit for being considered for
promotion. The authorities can fix any
objective criterion for this purpose, and
this Court cannot sit in appeal over this
minimum merit criterion fixed by the
authorities. The authorities must be given
wide latitude in the manner and mode of
fixing this minimum merit."

18. In N.K.Agrawal and others Vs.
Kashi Gramin Bank, Varanasi and
others, 2003 [3] ESC 1478 a Division
Bench of this Court held-

"However, this not the invariable
rule in giving promotions on the basis of
seniority-cum-merit.
An
alternative
procedure can be resorted to by the
authorities, and that is that they can fix a
minimum objective eligibility requirement
and only those candidates who possess
the same are then promoted on the basis
of
seniority.
For
considering
this
minimum eligibility requirement there can
be a selection by a Selection Committee,
vide Sivaiah's case [supra]"

19. In view of the aforesaid, this
Court is of the opinion that the policy
adopted by the University in fixing a
minimum eligibility criteria of obtaining
40% marks in each paper, is not in
derogation of clause 3.2.1 of the NCTE
Regulations. In fact, the policy framed by
the University, is in accordance with
clause 3.3 of the NCTE Regulations.

20. This bring us to the last
contention. Admittedly, after the selection
process, 37 seats still remains vacant. The
learned
counsel
for
the
petitioner
submitted that on account of the policy of
the University in fixing 40% marks in
each paper, it resulted in the seats
remaining vacant. Further, candidates are
available
who
have
the
minimum
qualifying marks, as fixed under the
NCTE Regulations. In such a scenario,
the management should be given the
permission to fill up the vacant seats
through
the
management
quota
by
applying the minimum qualifying marks
obtained
by
the
candidate
in
the
qualifying examination. In support of his
submission, the learned counsel placed
reliance upon the decision of the Supreme
Court in State of T.N. and another vs.
Adhiyaman Educational & Research
Institute and others, 1995 (4)SCC 104
wherein, the Supreme Court, in paragraph
41 held as under: -

(v) When there are more applicants than
the available situations/ seats, the
State authority is not prevented form
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
3 All] Ranjana Pandey V. Union of India and others
751
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.

21. In addition to the aforesaid, the
learned counsel for the College also
placed reliance upon a decision of this
Court in Welfare Association of Self
Financed Institutes, Noida and others
vs. State of U.P. and others, 2004(6)ESC
147 wherein the Court in paragraph 37
held as under:-

"However, it is further provided that
the State Government shall permit the
Management
of
private
unaided
professional colleges to grant admission
to students against the Management quota
seats strictly in accordance with the
option exercised by them in accordance
with the notification of the All India
Council for Technical Education and the
brochure published by the U.P. Technical
University, which in turn refers to
Government Order dated 20th June,
2003. If, after exhausting the mode so
opted by the private management, there
still remain certain vacancies within the
Management quota seats, the State shall
permit the institutions to fill up the same
from the other modes of admission as
notified in the Government Order dated
20th June, 2003. The benefit of this Court
is available to only those institutions
which have exercised their opinion in
accordance with the brochure published
by U.P. Technical Education, referred to
in the body of the judgment."

22. Similarly reliance placed upon in
another decision in the case of Welfare
Association
of
Self
Financed
Institutions and others vs. State of U.P.
and others, 2005 (6) AWC 6199, wherein
in the Court in paragraph 18 held as
under-

"Having regard to the totality of the
circumstances, this Court is of the opinion
that no further counseling be permitted to
be done by the respondents in respect of
SEE-UPTU: 2005 and balance seats, (as
per the chart supplied by the Additional
Advocate General) may now be permitted
to be filled by the private self financed
institutions as the left over seats, as part
and parcel of their management quota
seats, on the basis of one of the
recognised modes of judging the merits of
the candidates. It is ordered accordingly."

23. In my considered opinion, the
aforesaid judgements are distinguishable
and is not applicable to the present facts
of the case. I have already held that the
eligibility criteria for the candidate to be
eligible for admission in B.Ed. course as
fixed by the University was neither in
derogation nor in conflict with the
regulations framed by the NCTE nor had
the University, in any way, encroached
upon the standard prescribed in the said
regulations. On the other hand, by laying
down such standards, it furthers the
standard of instructions. The Supreme
Court, in T.M.A. Pai's case (supra) has
categorically held in paragraph 59 of the
said judgment that merit is to be
determined
for
admission
in
a
professional course either by the marks
that the student obtained in the qualifying
examination or by a common entrance test
conducted by the institution. The Supreme
Court in para 68 of the said judgment
further held that an unaided professional
institution is entitled for autonomy in their
administration, but at the same time they
752 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
cannot forego or discard the principle of
merit and therefore, even a private
unaided institution was required to
provide for a merit based selection.

24. In the present case, the
University has conducted the examination
and a merit based selection has taken
place. If certain seats remained vacant, the
same cannot be filled up by a back door
method by cutting down the eligibility
criteria and fixing the eligibility criteria of
holding the minimum qualifying marks
obtained in the qualifying examination.
Once a standard or norm for admission is
fixed, the same has to be followed. It is
not possible that certain number of seats
are filled up by following the norms laid
down by the University and for the
remaining seats, norms fixed as per
NCTE regulations are followed. In the
considered opinion of the Court, the
fixation of 40% marks to be obtained in
each paper was neither arbitrary nor was
in conflict with the regulations framed by
N.C.T.E. In fact, in Welfare Association
of Self Financed Institutions and others
vs. State of U.P. and others, 2005(6)AWC
6199, the minimum marks were not
prescribed as a result of which, even a
candidate who had secured minus marks
was declared successful and was called
for counselling. The Court deprecated the
practice for not fixing the minimum
marks .

25. In the light of the aforesaid, the
criteria of fixing a minimum 40% marks
in each paper cannot be held to be
arbitrary or in derogation of the norms
laid by the NTCE regulations of 2006.
Further, the Court cannot sit in appeal
over the minimum criteria fixed by the
University. The University must be given
a wide latitude in the manner and mode of
fixing the minimum eligibility criteria in
the
common
entrance
examination.
Similar view was given by a Division
Bench of this Court in Vinod Kumar
Verma's case (supra). Consequently, the
submission raised by the learned counsel
for the petitioner as well as by the learned
counsel for the College cannot be
accepted.

26. However, the University should
ponder over the matter and consider the
impact of the seats remaining vacant for a
professional course, namely, the B.Ed.
course. There are only two colleges in
Allahabad imparting B.Ed. course in
which admissions are done through a
common entrance examination conducted
by the University. There are only limited
seats. The candidates applying for this
professional course are large in numbers.
No useful purpose is served in keeping
the seats vacant. Consequently, for
conducting
the
common
entrance
examination in future, the University may
reframe its policy, while keeping in mind,
the standard of education and may reduce
the minimum marks to be obtained by a
candidate
in
the
common
entrance
examination. A decision in this regard
may be taken by the University before
holding
the next common entrance
examination.
27. In view of the aforesaid, the writ
petition fails and is dismissed. In the
circumstances of the case, there shall be
no order as to cost. Petition dismissed.
---------
3 All] Amar Singh and others V. State of U.P. and another
753
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2007

BEFORE
THE HON'BLE R.K. RASTOGI, J.

Civil Misc. Application No. 22382 of 2007

Amar Singh and others
...Applicants
Versus
State of U.P. and another ...Opposite Party

Counsel for the Applicants:
Sri S.K. Tiwari

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 319Guide
lines
and
the
circumstancesexplained-for
exercise
power
under
Section 319.

Held: Para 12

In view of the above rulings of the
Hon'ble Apex Court the legal position
regarding summoning of any person as
accused u/s 319 Cr.P.C. can be summed
up as under:

1.
The power u/s 319 Cr.P.C. is not to
be exercised mechanically on the
ground that some evidence has
come on record implicating the
person sought to be made an
accused.
2.
There is no compelling duty on the
Court to proceed against those
persons against whom no charge
sheet has been submitted.
3.
The
power
u/s
319
Cr.P.C.
is
discretionary
and
should
be
exercised to achieve criminal justice
and the Court should not turn
against
another
person
simply
because it has come across some
evidence connecting that person
also with the offence. The court
should exercise judicial discretion in
the
matter
considering
all
the
relevant facts and circumstances.
4.
The Court must be satisfied that the
other person , who had not been
arrayed
as
accused,
had
also
participated in commission of the
offence.
5.
The
power
u/s
319
Cr.P.C.
is
extraordinary power conferred on
the court and this should be used
very sparingly if the compelling
reasons exist for taking cognizance
against
other
accused
persons
against whom no charge sheet has
been submitted.
6.
There must be reasonable prospect
of the case against the newly added
accused ending in his conviction for
the offence concerned and then only
that person should be summoned as
an accused otherwise the Court
should refrain from adding him as
an accused.
7.
The Court shall exercise a judicial
discretion taking into consideration
conspectus of the case including the
stage
at
which
the
trial
has
proceeded and the quantum of
evidence collected till the date and
time
spent
by
the
Court
for
collecting
such
evidence
while
passing the order of summoning the
person u/s 319 Cr.P.C.
8.
The
satisfaction
whether
there
exists likelihood of conviction of the
person to be summoned as accused
can be arrived at inter alia upon
cross examination of the witness
naming him and so the orders for
summoning a person as accused u/s
319 Cr.P.C. should be passed after
cross examination of the witness.
9.
The Court concerned may also take
into consideration other evidence
before
passing
an
order
for
summoning a person as an accused
u/s 319 Cr.P.C.
Case law discussed:
2000 SCC (Crl.) 609
1983 (2) ACC-50 (SC)
2006 (1) SCC (Crl.)-568
2007 (58) ACC-254