# Srmaamiksha Ve 5601 (M/S) 05 v. University Of Lucknow and other

- **Citation:** (2010) 3 ILRA 1302
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-30
- **Bench:** Devi Prasad Singh, Virendra Kumar Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/srmaamiksha-ve-5601-m-s-05-v-university-of-lucknow-and-other-41778
- **Pages:** 6

## Headnote

Constitution of India, Art.226-Right to
admission-petitioner
appellant
being
much below in merit of admission test in
3 years LLB course-writ court directed
the
V.C.
For
consideration
of
representation on assumption of existing
several
vacant
seat-rejected
order
challenged-by interim measure-appellant
allowed by the Court to peruse LLB and
result
declared-provisionally-appellant
got enrolled by Bar Council as an
Advocate-applied for admission in LLM in
meantime
writ
petition
dismissedconsidering Doctrine of merger interim
order merge in final order-Single Judge
dismissed
the
petition-held-properconsidering maxim "Actus Curiae neinem
gravabit"-appellant
spent
substantial
portion of his life-no allegation of fraud
in getting admission in LLB-order of
Single Judge modified maintaining the
direction
to
the
extent
for
refusal
admission in LLM course-but set-a-side
to the extent of rejecting LLB degree
with all consequential benefits

Held: Para 18 and 19

Accordingly, we are of the view that
benefit availed by the the appellant in
pursuing her study of LL.B. Course, and
consequential
registration
as
an
Advocate with the Uttar Pradesh State
Bar Council, should not be annulled.

However, so far as the finding recorded
by the Hon'ble Single Judge with regard
to
admission
in
LL.M.
Course
is
concerned,
requires
no
interference.
Since the admission of the appellant in
LL.B. Course was in pursuance of interim
order passed by this Court, we are
maintaining the appellant's right, on the
basis of admission of LL.B. Course,
however,
the
appellant
cannot
be
permitted to pursue her further studies
in pursuance of the orders of this Court
or application moved for LL.M. Course,

## Text

1302 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
(Annexure No.4 to the writ petition) is
hereby set aside.

18. There shall be no order as to costs.
---------
APPELLATE.JURISDICTION
CIVIL.SIDE
DATED: LUCKNOW 30.11.2010

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE VIRENDRA KUMAR DIXIT, J.

Special Appeal No.-758 of 2009

Srmaamiksha Ve 5601 (M/S) 05

 ...Petitioner
Versus
University Of Lucknow Through Its Vice
Chancellor Lko. and other ...Respondents

Counsel for the Petitioner:
Inperson

Counsel for the Respondents:
U.N.Mishra

Constitution of India, Art.226-Right to
admission-petitioner
appellant
being
much below in merit of admission test in
3 years LLB course-writ court directed
the
V.C.
For
consideration
of
representation on assumption of existing
several
vacant
seat-rejected
order
challenged-by interim measure-appellant
allowed by the Court to peruse LLB and
result
declared-provisionally-appellant
got enrolled by Bar Council as an
Advocate-applied for admission in LLM in
meantime
writ
petition
dismissedconsidering Doctrine of merger interim
order merge in final order-Single Judge
dismissed
the
petition-held-properconsidering maxim "Actus Curiae neinem
gravabit"-appellant
spent
substantial
portion of his life-no allegation of fraud
in getting admission in LLB-order of
Single Judge modified maintaining the
direction
to
the
extent
for
refusal
admission in LLM course-but set-a-side
to the extent of rejecting LLB degree
with all consequential benefits

Held: Para 18 and 19

Accordingly, we are of the view that
benefit availed by the the appellant in
pursuing her study of LL.B. Course, and
consequential
registration
as
an
Advocate with the Uttar Pradesh State
Bar Council, should not be annulled.

However, so far as the finding recorded
by the Hon'ble Single Judge with regard
to
admission
in
LL.M.
Course
is
concerned,
requires
no
interference.
Since the admission of the appellant in
LL.B. Course was in pursuance of interim
order passed by this Court, we are
maintaining the appellant's right, on the
basis of admission of LL.B. Course,
however,
the
appellant
cannot
be
permitted to pursue her further studies
in pursuance of the orders of this Court
or application moved for LL.M. Course,
2009.

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

1. Heard the appellant in person and
the learned counsel for the respondents.

2. Present appeal under Rule 5
Chapter VIII of Allahabad High Court
Rules, 1952, is against the judgment and
order dated 6.10.2009, passed by Hon'ble
Single Judge of this Court, in Writ Petition
No.5601 (M/S) of 2005.

3. The appellant preferred Writ
Petition No.5601 (M/S) of 2005 whereby,
an order dated 20.10.2005 passed by the
Vice-Chancellor, Lucknow University was
impugned. By the said order dated
20.10.2005, the Vice-Chancellor of the
University has denied admission to the
appellant in LLB Course and rejected
representation on the ground that appellant
does not qualify on merit being placed at
3 All] Srmaamiksha Ve 5601 (M/S) 05 V. University Of Lucknow and other
1303
serial No.502 of merit list. According to
respondent, the last candidate admitted
under general category, was placed at the
serial No.135 of the merit list.

4. The order dated 20.10.2005,
impugned before the Hon'ble Single Judge,
reveals that earlier, the appellant filed Writ
Petition No.5051(M/S) of 2005 with the
grievance
that
she
had
applied
for
admission to L.L.B. three years course but
in
spite
of
several
vacancies,
her
candidature was not considered by the
opposite parties. Hence the Vice-Chancellor
was directed to look into the matter and take
decision with regard to admission keeping
in
view
the
existing
vacancy.
In
consequence thereof, the representation of
the appellant was rejected for the lack of
vacancy.

5. During the pendency of writ
petition before Hon'ble Single Judge, by an
interim order dated 29.5.2006 in Writ
Petition No.5601 (M/S) of 2005, this Court
had permitted the appellant to appear in 2nd
Semester Examination provisionally and by
another interim order order dated 5.1.2007,
the petitioner was permitted in 3rd Semester
Examination
provisionally
and
the
declaration of result was subject to outcome
of writ petition. By another interim order
dated
15.5.2007,
the
appellant
was
permitted to appear in the 4th Semester
Examination of LLB three years course and
the case was directed to be listed for final
hearing. Another interim order dated
21.11.2007 was passed by the Hon'ble
Single Judge permitting the appellant to
appear in 5th Semester Course Examination
and the respondents were also directed to
declare the result of the appellant of 1st,
2nd, 3rd and 4th Semester Examination. By
another interim order dated 19.4.2008
passed by the Hon'ble Single Judge, the
appellant was permitted to appear in the 6th
Semester of L.L.B., however, the result
thereof, was directed not to be declared till
further orders of this Court. Later on, by
subsequent interim order dated 23.5.2008,
the Court directed to declare the result of
6th Semester Examination. By subsequent
interim order dated 16.7.2008, the appellant
was directed to deposit entire fees with
regard to admission and examination of law
course and to declare the result of all
semesters of LL.B. Course.

6. During the pendency of Writ
Petition No.5601 (M/S) of 2005, the
appellant filed another writ petition being
Writ Petition No.3196 (M/S) of 2008
seeking a writ in the nature of mandamus to
respondents to give admission in LL.M.
Course, 2008.
In pursuance of the
marksheets issued from the respondent
University, with regard to LL.B. Course, the
appellant was enrolled to Uttar Pradesh
State Bar Council, having enrolment
No.03810/08 and in consequence thereof,
she has been practising in this Court.

7. Before the Hon'ble Single Judge,
the respondentsrelied upon the cases
reported in AIR 1992 SC 1926: State of
Maharashtra
Vs.
Vikas
Sahebrao
Roundale; 1998 (5) SCC 377: C.B.S.E.
Vs. P. Sunil Kumar; 1994 (6) SCC 1:
State of U.P. & others. Vs. Ramona
Perhar (Km.) and 2005 (23) L.C.D. 1601:
Dr.
Ram
Manohar
Lohia
Awadh
University Faizabad. Vs. Civil Judge
(Junior Division) in which one of us
(Hon'ble Mr. Justice Devi Prasad Singh)
was a member.

8. Hon'ble the Single Judge held that
since the appellant was admitted for LLB in
pursuance of interim order and her name in
the merit list was much below the name of
1304 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
last selected candidate, she was not entitled
for admission and consequential studies.
Accordingly,
the
writ
petition
was
dismissed and deprived the appellant from
all the benefits extended to her during
pendency of writ petition. The prayer for
admission of appellant to the LLM Course
was also rejected by Hon'ble Single Judge.

9. While dismissing the writ petition,
the Hon'ble Single Judge has passed the
order, the operative portion of which, is
reproduced as under:

"After
going
through
the
order
impugned, I find that the Vice Chancellor
has
rightly
rejected
the
petitioner's
representation seeking admission in LL.B.
course as her merit was much below to the
last candidate admitted in the course and
after giving admission to the candidate who
was at the rank of 135, the total seats also
filled up. Therefore, I do not find error in
the order impugned. Since the petitioner
succeeded to appear in the examination and
to get declaration of result under the
strength of the various interim orders passed
by this Court time to time which is not
permissible as has been held by the Hon'ble
Supreme Court in several cases discussed
here-in-above. I am of the view that the
petitioner is not entitled to receive any
benefit on the basis of the said result.
Therefore, I hereby provide that the
petitioner's result of LL.B. examination
shall be nonest and she shall not be entitled
to get benefit of degree of LL.B.
Examination, if awarded to her.

In the result the writ petitions are
dismissed."

10. There appears to be no dispute
over the proposition of law that ordinarily,
the student should not be permitted to
appear in examination provisionally by
interim order. Admission of candidates to
pursue studies having no place in merit list,
shall amount to slackening the standard of
education. Ordinarily, in academic matters,
Courts should not pass interim orders unless
prima facie case is made out to grant such
reliefs. In the present case, from time to
time, Hon'ble Single Judge has passed the
interim orders without taking note of the
fact that the appellant was much below to
the last selected candidate admitted for
LL.B Course. Passing of such interim
orders in academic matters, no doubt, shall
lower down the standard of education. It
would have been better in case the writ
petition filed by the appellant should have
been decided at an early date preferably, at
initial stage. However, sometimes, delay is
caused because of non-filing of counter
affidavit by the State Government or its
instrumentalities
and
universities.
In
absence of counter affidavit being not filed
by
the
State
Government
or
its
instrumentalities or universities, the interim
orders are passed but while passing interim
orders, care must be taken that whether the
person who approached the Court, has
prima facie, a case for admission to course
concerned or not. Only in the event of
clinching evidence and prima facie case in
the academic matters, the interim orders
may be passed.

11. It is settled law that interim order
merges to the final order passed in a petition
or suit. Accordingly, in our opinion, Hon'ble
Single Judge has rightly held that since the
writ petition is dismissed, all the reliefs
given to the appellant, shall lose its sanctity.
However, in the present case, it appears that
the appellant has not only passed the LL.B.
Course but has enrolled herself with the
Uttar Pradesh State Bar Council.
3 All] Srmaamiksha Ve 5601 (M/S) 05 V. University Of Lucknow and other
1305

12. It is not disputed fact on record
that the appellant has got admission in
LL.B. Course though her name was below
the lowest selected candidate in pursuance
of interim order. It appears that the
appellant was admitted to LL.B. Course not
in order of merit but against the existing
vacancies.

13. In the case reported in 1994 (6)
SCC 241:Kumari Madhuri Patil and
another. Vs. Addl. Commissioner, Tribal
Development
and
others,
Hon'ble
Supreme Court has dealt with the case
where candidate applied for admission in
the MBBS course and in pursuance of
directions issued by the High Court, she
was admitted in the MBBS course and
continued her studies. Though the candidate
does not qualify on merit but since she was
admitted in pursuance of directions issued
by the High Court, she was permitted to
complete her course with the following
observations:

"18. The delay in the process is
inevitable but that factor should neither be
considered to be relevant nor be an aid to
complete the course of study. But for the
fact that she has completed the entire course
except to appear for the final examination,
we would have directed to debar her from
prosecuting the studies and appearing in the
examination. In this factual situation no
useful purpose would be served to debar her
from appearing for the examination of final
year MBBS. Therefore, we uphold the
cancellation of the social status as Mahadeo
Koli fraudulently obtained by Km. Suchita
Laxman Patil, but she be allowed to appear
for the final year examination of MBBS
course. She will not, however be entitled in
future for any benefits on the basis of the
fraudulent social status as Mahadeo Koli.
However, this direction should not be
treated and used as a precedent in future
cases to give any similar directions since the
same defeats constitutional goals."

14. In another case reported in 2001
SCC (L&S) 117: State of Maharashtra.
Vs. Milind and others, the aforesaid
proposition based on equitable ground, has
been reiterated by the Hon'ble Supreme
Court. The case of Milind (supra) has been
followed by Hon'ble Supreme Court in the
case reported in (2004) 2 SCC 105: R.
Vishwanatha Pillai. Vs. State of Kerala
and
others,
with
the
following
observations:

"27. In State of Maharashtra. v. Milind
a Constitution Bench of this Court while
permitting the candidate to retain the degree
obtained by him even though his claim as
member of the Scheduled Tribe was
rejected, observed: (SCC p.31, para 38)

"38. Respondent 1 joined the medical
course for the year 1985-86. Almost 15
years have passed by now. We are told he
has already completed the course and may
be he is practising as a doctor. In this view
and at this length of time it is for nobody's
benefit to annul his admission. Huge
amount is spent on each candidate for
completion of medical course. No doubt,
one
Scheduled
Tribe
candidate
was
deprived of joining medical course by the
admission given to Respondent 1. If any
action is taken against Respondent 1, it may
lead to depriving the service of a doctor to
the society on whom public money has
already been spent. In these circumstances,
this judgment shall not affect the degree
obtained by him and his practising as a
doctor. But we make it clear that he cannot
claim to belong to the Scheduled Tribe
covered by the Scheduled Tribes Order. In
other words, he cannot take advantage of
1306 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the Scheduled Tribes Order any further or
for any other constitutional purpose.
Having regard to the passage of time, in the
given circumstances, including interim
orders passed by this Court in SLP (C)
No.16372 of 1985 and other related affairs,
we make it clear that the admissions and
appointments that have become final, shall
remain unaffected by this judgment."
(emphasis supplied).

15. It is settled proposition of law that
no one should suffer for the act of Courts.
The maxim "Actus Curiae neminem
gravabit", which means that the act of the
Court shall prejudice no one, becomes
applicable in such a case. In such a fact
situation the Court is under an obligation to
undo the wrong done to a party by the act of
the Court. (Vide Shiv Shankar and others
Vs. Board of Directors, Uttar Pradesh State
Road Transport Corporation and another.,
1995 Suppl. (2) SCC 726; M/s GTC
Industries Ltd. Vs. Union of India and
others, AIR 1998 SC 1566; and Jaipur
Municipal Corporation Vs. C.L. Mishra,
(2005) 8 SCC 423).

16. Though, we are of the view that
the interim order should not have been
passed by Hon'ble Single Judge from time
to time permitting the appellant to pursue
her course but keeping in view the fact that
the appellant was permitted to pursue her
study and completed her course and later
on, enrolled with Uttar Pradesh Bar
Council, she should not be put to suffer on
equitable ground. The appellant has spent a
substantial portion of her life to pursue her
studies with regard to LL.B. Course and
thereafter, enrolled with the Bar Council
and has been practising as Advocate. The
time is essence of life and a person cannot
be deprived of his or her source of
livelihood in case he or she has completed
studies and thereafter entered her life as an
Advocate.
Things
would
have
been
different in case while approaching this
Court, the appellant would have committed
some fraud and obtained interim order with
regard to admission in LL.B. Course and
thereafter, would have got enrolled herself
in Uttar Pradesh State Bar Council. In the
event of commission of fraud, no equitable
relief can be granted by the Courts.

17. It would be too hard to deprive the
petitioner from successful completion of
LL.B. Course and consequential enrolment
with the State Bar Council. The clock
cannot be turned back depriving the
petitioner from her status more so when it is
exclusively not based on interim orders
passed by this Court and also not rests on
commission of fraud or misrepresentation.
From the record, it appears that in
pursuance of the interim orders, the
respondent University granted admission
and the appellant continued with her studies
along with her regular status without any
disturbance to other candidates admitted in
the same academic session.

18. Accordingly, we are of the view
that benefit availed by the the appellant in
pursuing her study of LL.B. Course, and
consequential registration as an Advocate
with the Uttar Pradesh State Bar Council,
should not be annulled.

19. However, so far as the finding
recorded by the Hon'ble Single Judge with
regard to admission in LL.M. Course is
concerned, requires no interference. Since
the admission of the appellant in LL.B.
Course was in pursuance of interim order
passed by this Court, we are maintaining the
appellant's right, on the basis of admission
of LL.B. Course, however, the appellant
cannot be permitted to pursue her further
3 All] U.P. State Road Transport Corporation and another V. Mirza Athar beg and others 1307
studies in pursuance of the orders of this
Court or application moved for LL.M.
Course, 2009.

20. In view of the above, we allow the
appeal in part and set aside/modify the
judgment and order dated 6.10.2009 to the
extent it rejects the appellant's admission of
LL.B. Course and consequential reliefs. The
appellant shall be entitled for all benefits
with regard to admission in LL.B. Course
but the judgment and order of the Hon'ble
Single Judge to the extent of rejecting
appellant's claim with regard to admission
in LL.M. Course, is maintained.

21. Accordingly, the appeal is allowed
in part.

No orders as to costs.
---------
APPELLATE.JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.11.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE RITU RAJ AWASTHI, J.

Special Appeal No. 813 of 2010

U.P. State Road Transport Corporation
and another

 ...Petitioner
Versus
Mirza Athar Beg and others ...Respondents

U.P. State Road Transport Corporation
Employees (other than officer) Service
Regulations 1981-Regulation 39-Petitioner
initially
appointed
as
Counductor
on
01.11.51-promoted on post of junior clerk
on 07.09.1998-Regularized 16.04.1960after existence of corporation promoted on
post of Senior Clerk-retired on 31.1.1991petitioner/Respondent not accepted G.P.F.
But claimed pension-Single Judge issued
direction for pension subject to refund of
G.P.F. Amount-held not proper-pension not
bounty G.O. Dated 16.09.1960 having no
retrospective application-being permanent
employee
of
earstwhile
Roadwaysworking with Corporation on deputationservice conditions can not be changeddirection for payment of pension within
specified period issued.

Held: Para 34 and 35

Thus, the respondent was working on a
pensionable
post
with
the
erstwhile
Roadways,
when
he
was
sent
on
deputation to the Corporation and he
being a permanent employee of the
erstwhile Roadways, his conditions of
service remain unaffected and unchanged
even on the issuance of the Government
order dated 16.9.60, notified on 28.10.60.
Therefore,
the
respondent
was
fully
entitled to the benefit of pension which
has been granted by the learned Single
Judge.

The last plea of the appellants that once
the
respondent
had
accepted
the
Provident Fund amount, he was not
entitled to claim pension, can also not be
accepted for the reason that there cannot
be any estoppel against law, as the
pension is not a charity or bounty and
moreso when the learned Single Judge has
issued a direction for refund of the amount
so received by the appellants before
paying amount of pension.
Case law discussed:
[Writ Petition No. 1313 (SS) of 2001], (Writ
Petition No. 1226 of 1987), [Writ Petition No. 544
(SB) of 2000]

(Delivered by Hon'ble Pradeep Kant, J.)

1. Heard Sri Mahesh Chandra for the
appellants and Sri Ghaus Beg for the private
respondent.

2. The special appeal has been filed
with a delay of one month and twenty six
day. Sri Ghaus Beg has no objection in
condoning the delay.