# Registrar, Chhatrapati Shahuji Maharaj University Kanpur v. Vinay Gupta and another

- **Citation:** (2009) 1 ILRA 256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-05
- **Case number:** Special Appeal No. 1868 of 2008
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/registrar-chhatrapati-shahuji-maharaj-university-kanpur-v-vinay-gupta-and-41355
- **Pages:** 7

## Headnote

Constitution of India Art. 226-Promisory
Estappel Appeal-Admission in 3 years
L.L.B. course-circular 19.9.1997 provides
40%
marks
in
graduation
where
admission based on entrance test and
45% where direct admission-without
entrance test-petitioner secured 35th
position in merit list but admission
refused-held-proper-university
never
allowed
to
pursue
the
course-No
question of promissory estoppels.

Held: Para 23
1 All] Registrar, Chhatrapati Shahuji Maharaj University, Kanpur V. Vinay Gupta & another 257
Respondent no.1 being not possessed of
the
minimum
eligible
qualification
prescribed, the denial of admission to
him by the University is justified. No
principle of promissory estoppel can be
pressed by the respondent no.1 in
support of his admission.
Case law discussed:
(2004) 4 SCC 513, (1999) 7 SCC 120.

## Text

256 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
points out that in the counter affidavit
before the learned Single Judge, the
appellants had accepted that father of the
respondent was being paid salary like
regular employees. He has relied upon
paragraph 12 of the counter affidavit filed
by the State before the learned Single
Judge, which mentions that "The father of
the petitioner was being paid salary like
regular employee pursuant to order of this
Hon'ble Court." Thus, it is clear that
pursuant to an order passed in some other
proceedings, the father of the respondent
was being paid regular salary. This cannot
take the case of the respondent any
further.

7. Mr. Rahul Sripat could not deny
that the appointment order of respondent's
father specifically stated that he was a
part time tube-well operator. He does not
have any document which can show that
the said appointment was subsequently
converted into a regular appointment. The
appointment order further shows that parttime Tube-well Operators were appointed
on a limited salary of Rs.299/-. There is
no document showing that the salary was
revised any time. The only thing which is
relied upon, is an averment in the counter
affidavit filed by the State which has been
referred to above and which states that in
view of order of the Court, higher salary
was being paid to the respondent's father.

8. The burden of proof that the
respondent's father was in a regular
employment was on the respondent. In the
facts as stated, we are of the view that he
has not discharged that burden. This apart
the
learned
Single
Judge
has
not
considered the above Division Bench
judgment which clearly discusses the law
on this point. It is perhaps due to the fact
that since the earlier judgment is not
reported, the same has not been referred
to by the learned Single Judge. Now the
same has been pointed out to us and we
have noted the facts. In our view, the
learned Single Judge has erred in granting
the benefits to the respondent arising out
of the dying-in-harness rules of 1974.

9. In the circumstances, the appeal is
allowed. The order of the learned Single
Judge is set aside and the writ petition is
dismissed. There is no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 1868 of 2008

Registrar, Chhatrapati Shahuji Maharaj
University Kanpur
 ...Appellant

Versus
Vinay Gupta and another ...Respondents

Counsel for the Appellant:
Sri Neeraj Tiwari

Counsel for the Respondents:
Sri S.K. Srivastava

Constitution of India Art. 226-Promisory
Estappel Appeal-Admission in 3 years
L.L.B. course-circular 19.9.1997 provides
40%
marks
in
graduation
where
admission based on entrance test and
45% where direct admission-without
entrance test-petitioner secured 35th
position in merit list but admission
refused-held-proper-university
never
allowed
to
pursue
the
course-No
question of promissory estoppels.

Held: Para 23
1 All] Registrar, Chhatrapati Shahuji Maharaj University, Kanpur V. Vinay Gupta & another 257
Respondent no.1 being not possessed of
the
minimum
eligible
qualification
prescribed, the denial of admission to
him by the University is justified. No
principle of promissory estoppel can be
pressed by the respondent no.1 in
support of his admission.
Case law discussed:
(2004) 4 SCC 513, (1999) 7 SCC 120.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Neeraj Tiwari, learned
counsel for the appellant, Sri S.K.
Srivastava, learned counsel for respondent
no.1 and learned Standing Counsel for
respondent no.2.

2. Learned counsel for the parties
agree that this special appeal be decided
at this stage, without calling for any
further affidavits.

3. This is an special appeal against
the judgement and order of the Hon'ble
Single Judge dated 11th November, 2008,
whereby the writ petition filed by
respondent no.1, Vinay Gupta has been
allowed.

4.

Brief
facts
necessary
for
appreciating the issues raised in the
special appeal are as follows:

5.

The
appellant
University
published a notice for admission to LL.B
three years degree course. The respondent
no.1 applied in pursuance thereof and was
permitted to appear in the entrance test, in
which out of nearly 4,000 students he
secured 35th position. However, he was
not granted admission by the University
on the ground that he did not have 45%
marks at the graduation level. The denial
of admission was challenged by the
respondent no.1 in the aforesaid writ
petition, the writ petition has been
allowed by the Hon'ble Single Judge.

6. The Hon'ble Single Judge under
the impugned judgment has held that the
circular of Bar Council of India dated 19th
September, 1997 has been misinterpreted
by
the
University.
The
petitioner
respondent
no.1
cannot
be
denied
admission after declaration of the results
of Entrance Test, as he had not concealed
or misrepresented any fact at the time of
filing of the admission form or at any
other stage. It has further been observed
that in case the petitioner did not have
required
minimum
percentage
at
graduation level, it was for the University
to reject the admission form of the
petitioner at the threshold.

7. Sri Neeraj Tiwari, learned counsel
for the appellant-University allenging the
judgment and order of the Hon'ble Single
Judge contended that there is no dispute
to the minimum requirements provided by
the Bar Council of India vide circular
dated 19th September 1997. He submits
that under said circular if there is an
entrance test, the minimum percentage of
marks to have been achieved by the
candidate appearing in the Entrance Test
at the graduation level should be 40%. If
there is no entrance test, the pass
percentage at the Graduation Level should
be 45 % for LL.B. Admission. Learned
counsel for the appellant submits that
there is no dispute that entrance test has
been held for admission to LL.B. Three
Years degree Course by the University.
The University had decided that even for
candidates undergoing the entrance test,
those who have obtained at least 45%
marks at the graduation level would alone
be eligible for being considered for
admission.
258 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
8. Learned counsel for the appellant
submits that such prescription of higher
marks does not violate any of the
provision of the circular of the Bar
Council
of
India
and
is
legally
permissible. In support thereof, he has
placed reliance upon the judgment of the
Hon'ble Supreme Court in the case of
State of Tamil Nadu & Anr. vs. S.V.
Bratheep (Minor) & Ors., reported in
(2004) 4 SCC 513.

9. Learned counsel for respondent
no.1 opposing the contention raised on
behalf of the University submits that
requirement of at least 45% marks at the
graduation level by the University for
being eligible for being considered for
admission to LL.B. Three years degree
course is contrary to the circular issued by
the Bar Council of India. He submits that
the circular issued by the Bar Council of
India is binding upon all the Universities
so far as law courses are concerned. He
clarifies that the petitioner-respondent
no.1 had not concealed or misrepresented
any fact at the time of filling of the
admission form. The University ought to
have rejected the form itself, if the
petitioner was not eligible and should not
have permitted the respondent no.1 to
appear in the entrance test. Having
permitted
the
respondent
no.1
to
undertake the entrance test, the University
cannot deny admission on the plea that
respondent no.1 does not fulfil the
prescribed qualification.

10. We have considered the
submissions made by the learned counsel
for the parties and have gone through the
records.

11. There is no dispute that the Bar
Council of India vide circular dated 19th
September, 1997 has provided as follows:

"If there is entrance test, the
percentage should be 40 but if there is no
entrance test the percentage should be 45
for LL.B. Admission."

The
marks
obtained
by
the
respondent no.1 at graduation level are
admittedly less than 45%.

12. The issue which is up for
consideration is as to whether when an
entrance test is conducted for admission
to LL.B. Three Years Degree Course, the
required percentage at the graduation
level as per the Bar Council of India's
Circular should be 40% or, whether
additional condition of having 45% marks
in graduate level examination can be
introduced by the University, and whether
such additional prescription by the
University
would
contravene
the
provisions of the circular of the Bar
Council of India.

13. The statement of the learned
counsel for the appellant that such
prescription of an additional qualification
by the University is legally justified is
well founded and squarely answered by
the Hon'ble Supreme Court as detailed
below.

14. The question as to whether the
State Authorities who are conducting
admission to Post Graduate Medical
Courses can prescribe any qualification in
addition to those laid down by the
Medical Council of India came up for
consideration before the Constitutional
Bench of the Hon'ble Supreme Court of
India in the case of Dr. Preeti Srivastava
1 All] Registrar, Chhatrapati Shahuji Maharaj University, Kanpur V. Vinay Gupta & another 259
& anr. vs. State of M.P. & Ors. reported
in (1999) 7 SCC 120. The Hon'ble
Supreme Court in the said case held that
although the Medical Council has power
to lay the minimum qualification with
regard to admission to various courses but
prescription in addition thereto by the
State Government will not be illegal. The
State Government was held entitled to lay
down
any
additional
or
requisite
qualification in the said case.

15. Following was laid down by the
Hon'ble Supreme Court in the case of Dr.
Preeti Srivastava (Supra) specially in
paragraphs-45 and 46:

"45. In Ambesh Kumar (Dr) v.
Principal, L.L.R.M. Medical College a
State order prescribed 55% as minimum
marks for admission to postgraduate
medical courses. The Court considered
the question whether the State can impose
qualifications in addition to those laid
down by the Medical Council of India and
the regulations framed by the Central
Government. The Court said that any
additional or further qualifications which
the State may lay down would not be
contrary to Entry 66 of List I since
additional qualifications are not in
conflict with the Central regulations but
are designed to further the objective of
the Central regulations which are to
promote proper standards. The Court
said: (SCC p. 552, para 26)

"The State Government by laying
down the eligibility qualification namely
the obtaining of certain minimum marks
in the MBBS Examination by the
candidates has not in any way encroached
upon the regulations made under the
Indian Medical Council Act nor does it
infringe the Central power provided in
Entry 66 in List I of the Seventh Schedule
to the Constitution. The order merely
provides
an
additional
eligibility
qualification."
None of these judgements lays down
that any reduction in the eligibility
criteria would not impinge on the
standards covered by Entry 66 of List I.
All these qualifications --- qualifications
in addition to judgements dealt with
additional what was prescribed by the
Central regulations or statutes.
46 ............Of course, once the
minimum standards are laid down by the
authority having the power to do so, any
further qualifications laid down by the
State which will lead to the selection of
better students cannot be challenged on
the ground that it is contrary to what has
been
laid
down
by
the
authority
concerned. But, the action of the State is
valid because it does not adversely
impinge on the standards prescribed by
the appropriate authority ....."

It would be worthwhile to reproduce
paragraph-9 of the judgment of the
Hon'ble Supreme Court relied upon by the
learned counsel for the appellant in the
case of State of Tamil Nadu & Anr.
(Supra), which reads as follows:

"9. Entry 25 of List III and Entry 66
of List I have to be read together and it
cannot be read in such a manner as to
form an exclusivity in the matter of
admission but if certain prescription of
standards have been made pursuant to
Entry 66 of List I, then those standards
will prevail over the standards fixed by
the State in exercise of powers under
Entry 25 of List III insofar as they
adversely affect the standards laid down
by the Union of India or any other
authority functioning under it. Therefore,
260 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
what is to be seen in the present case is
whether the prescription of the standards
made by the State Government is in any
way adverse to, or lower than, the
standards fixed by AICTE. It is no doubt
true that AICTE prescribed two modes of
admission--one is merely dependent on
the qualifying examination and the other,
dependent upon the marks obtained at the
common entrance test. 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 AICTE, can it be said that it
is in any manner adverse to the standards
fixed by 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 AICTE would
allow admission only on the basis of the
marks
obtained
in
the
qualif0ng
examination, the additional test made
applicable is the common entrance test by
the State Government. If we proceed to
take the standard fixed by 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 even, the streams
proposed by AICTE are not belittled in
any manner. The manner in which the
High Court has proceeded is that what
has been prescribed by 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 case. It is no doubt true,
as noticed by this Court in Adhiyaman
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 A/CTE
in the present case are such which are not
attainable to which are not within the
reach of the candidates who seek
admission for engineering colleges. It is
not a 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 a
series of decisions of this Court including
Dr. Preeti Srivastava 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."

16. The aforesaid judgement relied
upon by the learned counsel for the
appellant specifically answers the issue
which has been raised in the present
special appeal. In the case of State of
Tamil
Nadu
(Supra)
the
Hon'ble
Supreme Court examined the standard
prescribed by AICTE with regard to the
examination and eligibility criteria for
appearing in the common entrance test. In
paragraph-9 of the judgement as quoted
above, it has been laid down by the
Hon'ble Supreme Court that for the
common entrance test, the standard fixed
by the State Government of having
obtained certain marks higher than the
minimum by the AICTE are legally
justified.
1 All] Registrar, Chhatrapati Shahuji Maharaj University, Kanpur V. Vinay Gupta & another 261
17. In view of the ration laid down
by the Hon'ble Supreme Court in above
two cases, it is clear 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 judgement of the Hon'ble
Supreme Court in the case of Dr. Preeti
Srivastava (Supra) and State of Tamil
Nadu (Supra).

18. Learned counsel for the
respondent no.1 submits that once the
University has issued an Admit Card to a
candidate, it cannot reject the candidature
of such candidate at a later stage. In
support thereof he has placed reliance
upon the judgement of the Hon'ble
Supreme Court in the case of Shri Krishan
vs.
The
Kurukshetra
University,
Kurukshetra reported in AIR 1976 SC
376, paragraph-7.

19. The judgement relied upon by
the learned counsel for respondent no.1 is
with reference to a different set of
circumstances. In that case candidate was
granted admission and thereafter he was
also permitted to undertake the first
course and then to take the examination of
Part-I of LL.B. Course in April, 1972,
subsequently the University cancelled his
candidature. The Hon'ble Supreme Court
in these facts held that if the University
acquiesced to the infirmities which
existed at the time of admission and
allowed the appellant to undertake the
course and then to appear in Part I
examination in April, 1972, then with
reference to the University Statute, the
University had no power to withdraw the
candidature of the appellant. In the
present case, the University has not
granted admission to the respondent no.1
in LL.B. Three years Degree Course and
he has been denied such admission on the
ground that respondent no.1 does not
fulfil the minimum eligibilities as detailed
in brochure published by the University at
the threshold of admission.

20. Learned counsel for the
appellant has also referred to the brochure
which has been annexed as Annexure
C.A.-1 to the writ petition specifically
paragraph 10 read with paragraph 19
under the heading of "Aharta Sambandhi
Niyam". It contains a specific condition
that for permitting a candidate to appear
in the entrance examination, the minimum
eligibility is of having passed qualifying
'examination with 45%. The University
has not admitted the respondent no.1 in
the LL.B. Three Years Degree Course,
because of lack of the said eligibility. The
principle of promissory estoppel cannot
be pressed by the learned counsel for the
respondent
no.1
for
evading
the
requirements so prescribed. It is not the
case of respondent no.1 that he has been
granted admission in LL.B. Three Years
Degree Course and he is not being
permitted to appear in Part-I examination
after he has completed his first year
course.

21. We may also refer to the other
judgment, reliance whereof has made by
the respondent no.1 i.e. the judgement of
the Hon'ble Supreme Court in the case of
Dolly Chhanda vs. Chairman, JEE and
Ors. reported in 2004 (10) SBR 424.

22. The Hon'ble Supreme Court in
the said case itself has laid down that the
general rule is that while applying for any
course of study or a post, a person must
possess the eligibility qualification on the
last date fixed for such purpose and that
262 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
there can be no relaxation. The judgment
relied upon by the learned counsel for
respondent no.1 whereby the Hon'ble
Supreme Court held that every infraction
of the rule relating to submission of proof
need not necessarily result in rejection of
candidature. The said case is clearly
distinguishable in the facts of the present
case and does not help the respondent
no.1.

23. Respondent no.1 being not
possessed of the minimum eligible
qualification prescribed, the denial of
admission to him by the University is
justified. No principle of promissory
estoppel can be pressed by the respondent
no.1 in support of his admission.

24. Therefore, the judgment and
order of the Hon'ble Single Judge dated
11th November, 2008 cannot be legally
sustained and is hereby set aside,:

25. The present special appeal is
allowed. The writ petition filed by
respondent no.1 is dismissed. No order is
passed as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.02.2009

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No. 2975 of
2009

Ramji Shukla

...Applicant

Versus
State of U.P. and another

 ...Opposite Parties

Counsel for the Applicant:
Sri Beni Madhav Pandey
Sri K.K. Mishra
Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 210complaint dismissed by Magistrate on
ground for same occurrence FIR lodgedpolice submitted charge sheet-complaint
for same offence-not maintainable-heldillegal-charge filed for allegation of
murder of his son-without allegation of
rash and negligence-direction issued to
proceed with complaint on merit.

Held: Para 8

In
above
view,
C.J.M.,
Allahabad
committed a manifest error of law in
dismissing the complaint of the applicant
under Section 203 Cr.P.C. for the reason
that the police has submitted the charge
sheet in respect of the same incident.
Happening of the same incident is not
material for applicability of Section 210
Cr.P.C. for conducting a single trial. What
is important is that the offence alleged is
the same. Consequently rejection of
complaint
by
C.J.M.,
Allahabad
by
passing the impugned order is wholly
illegal and cannot be sustained in law.
The charge which was leveled by the
applicant in his complaint were that of
causing murder of his son by repeatedly
crushing him under the vehicle. The said
charge of murder is an independent
charge of causing death but not by rash
and negligence act.

(Delivered by Hon'ble Vinod Prasad, J.)

1. Heard learned counsel for the
applicant and the learned A.G.A.

2. The applicant complainant Ramji
Shukla has approached this Court with the
prayer to quash the impugned order dated
3.10.2008 passed by C,J.M., Allahabad in
complaint case no. 23676/2008 (Ramji
Vs. Sonu Agrawal), under Sections 279,
304-A, 427 I.P.C., P.S. Naini, District
Allahabad.