Ram Manohar Lohia Avadh University, Faizabad vs Civil Judge, Junior Division, Sadar Faizabad and Others

Devi Prasad Singh, J.—In the present petition the important and substantial question of law involved is as to whether the Colleges or Universities have got right to admit candidates in a course more than their sanctioned strength? Whether Civil Court (in the present case Civil Judge, Junior Division, Sadar Faizabad) was having jurisdiction to grant temporary injunction permitting the students to appear in the examination? Whether the Civil Court has got jurisdiction to entertain suit relating to a dispute regarding the admission and examination of the Universities?

Petitioner is an University established under the U.P. States Universities Act, had approached this Court under Article 227 of the Constitution of India and filed the writ petition No.2830 (M/S) of 2004 against temporary injunction granted by Civil Judge, Junior Division, Sadar, Faizabad permitting the respondent No.4 to appear in the examination. Respondent No.4 is student of MA 1st year of K.S. Saket Post Graduate College, Faizabad (in short hereinafter referred as the College). The Civil Judge, Junior Division who has been personally arrayed as respondent No.3 in the present writ petition had directed the petitioner University to issue admission cards to the plaintiffs as regular students of the College in question and not create any obstruction which may prevent the respondent No.4 from appearing in the examination.

Though alternative remedy under Order 43 Rules 1 and 2 of the Code of Civil Procedure was available to the petitioner to prefer an appeal before District Judge, Faizabad, but the petitioner had chosen to approach this Court under Article 227 of the Constitution of India on the ground that opposite party No.3 had granted temporary injunction in the pending suit without jurisdiction and petitioners'' application for vacation of temporary injunction was not considered expeditiously for extraneous reason. According to petitioner, Civil Court does not have got jurisidiction to entertain a suit for grant of mandatory injunction or permanent injunction to permit the students to appear in the examination in case he or she has been held to be disqualified to appear in the exam in view of provision contained in Rule 69 of the U.P. States Universities Act. The further submission of petitioner was that since opposite party No.4 is the daughter of Second Additional District Judge, Faizabad, the trial Court under his influence has granted temporary injunction. Respondents No.6 to 13 are also students of College in question and were permitted by learned Civil Judge, Junior Division to appear in the examination by temporary injunction passed in their regular suits. According to petitioner''s counsel, the learned Civil Judge, Junior Division had not only granted the temporary injunction in favour of opposite party No.4 but similar injunction was granted to large number of students who were not qualified to appear in the examination. Keeping in view the prima facie material on record that learned trial Court had acted without jurisdiction and also since injunction granted in the suit in question suffers from extraneous reasons, the present writ petition was entertained and objection relating to the availability of alternative remedy was ruled out by order dated 15th July 2004. During the pendency of present writ petition, owing to certain developments, petitioner had decided to withdraw the writ petition and an application was moved accordingly. The application for withdrawal of writ petition was rejected by order dated 13.12.2004 on account of serious allegations on record.

K.S. Saket Post Graduate College, Ayodhya, Faizabad (in short hereinafter referred as the College) is a College affiliated with the petitioner University. Large number of students were admitted in the College against sanctioned strength. When the examination of respective classes were notified by the University and after filling of the examination form, when the students'' records were sent to the petitioner University it was found that they were granted admission against sanctioned strength. Hence, petitioner University had declined to issue admit card. One of such student was Kumari Shazia Parveen (opposite party No.4) happens to be daughter of Shri Liyaquat Ali, Additional District Judge, Faizabad (opposite party No.2). According to petitioner''s counsel, when the University had declined to issue admission card to opposite party No.4 then the opposite party No.2 had mounted pressure for the issuance of admission card so that his daughter (opposite party No.4) may appear in the final examination of M.A., English. When the petitioner University had declined to succumb to the pressure of opposite party No.2 then regular suit No.251 of 2004 was filed by the opposite party No.4 for permanent injunction with the prayer for grant of temporary injunction so that she can appear in the examination in question. An ex parte temporary injunction was granted by learned Civil Judge, Junior Division, Sadar, Faizabad by impugned order dated 6.4.2004, a copy of which has been filed as Annexure1 to the writ petition. Similar temporary injunction was granted by learned Civil Judge, Junior Division in favour of other private respondents No.6 to 13 and also in some other regular suits, disclosed hereinafter.

Shri Rakesh Kumar Nain, Civil Judge, Junior Division, Sadar, Faizabad who had passed the impugned temporary injunction, in his affidavit dated 18.1.2005 has given the particulars of 22 regular suits in which he had granted temporary injunction. A copy of list containing detail of these 22 regular suits have been filed as Annexure CA2 to the affidavit filed by Shri Rakesh Kumar Nain, learned Civil Judge, Junior Division, Sadar, Faizabad. The list of regular suit as provided by Civil Judge, Junior Division, Faizabad are as under:

Sl. No. Regular Suit No. Parties name

262 of 2004 Kumari Archana v. Kamta Prasad Sundar Lal Saket Post Graduate College.

269 of 2004 Mithlesh Kumar v. Kamta Prasad Sundar Lal Saket Post Graduate College.

268 of 2004 Sheshnarayan Mishra v. Kamta Prasad Sundar Lal Saket Post Graduate College.

263 of 2004 Beena Singh and others v. Kamta Prasad Sundar Lal Saket Post Graduate College.

265 of 2004 Kumari Prabha Singh v. Kamta Prasad Sundar Lal Saket Post Graduate College.

266 of 2004 Kumari Neha Singh v. Kamta Prasad Sundar Lal Saket Post Graduate College.

270 of 2004 Sarita Singh and others v. Kamta Prasad Sundar Lal Saket Post Graduate College.

252 of 2004 Kanchan Tripathi v. Kamta Prasad Sundar Lal Saket Post Graduate College.

254 of 2004 Manoj Tripathi v. Kamta Prasad Sundar Lal Saket Post Graduate College.

255 of 2004 Avadhesh Kumar v. Kamta Prasad Sundar Lal Saket Post Graduate College.

256 of 2004 Kumari Smita Srivastava v. Kamta Prasad Sundar Lal Saket Post Graduate College.

257 of 2004 Pawan Kumar Mishra v. Kamta Prasad Sundar Lal Saket Post Graduate College.

258 of 2004 Alok Kumar Mishra v. Kamta Prasad Sundar Lal Saket Post Graduate College.

259 of 2004 Kumari Pratibha Singh v. Kamta Prasad Sundar Lal Saket Post Graduate College.

279 of 2004 Ashish Pandey v. Kamta Prasad Sundar Lal Saket Post Graduate College.

276 of 2004 Chandra Prakash v. Kamta Prasad Sundar Lal Saket Post Graduate College.

275 of 2004 Dharmendra Kumar v. Kamta Prasad Sundar Lal Saket Post Graduate College.

281 of 2004 Kumari Ritu Singh v. Kamta Prasad Sundar Lal Saket Post Graduate College.

280 of 2004 Kumari Neelam Gupta v. Kamta Prasad Sundar Lal Saket Post Graduate College.

278 of 2004 Alok Srivastava v. Kamta Prasad Sundar Lal Saket Post Graduate College.

289 of 2004 Tarunesh Srivastava v. Kamta Prasad Sundar Lal Saket Post Graduate College.

261 of 2004 Disha Srivastava v. Kamta Prasad Sundar Lal Saket Post Graduate College.

A perusal of the record of the aforementioned regular suit in which temporary injunction was granted by Shri Rakesh Kumar Nain and other records shows that firstly he had granted permission to opposite party No.4 in her regular suit No.251 of 2004 to appear in the examination but later on he had entertained 22 more regular suits and granted temporary injunction on various dates. It has been submitted by petitioner''s counsel that in the similar case when one of the petitioner Shri Mani Kant had approached this Court straightaway by preferring a Writ Petition No.1651 (MS) of 2004 this Court had declined to grant a blanket interim order on 12th April 2004. Only relief granted by this Court was that in case the petitioner was admitted within the sanctioned strength in the College in question then he shall be permitted to appear in the examination. The petitioner University had also placed on record in Writ Petition No.1651 (MS) of 2004 a letter dated 3.5.2004 sent by the then Vice Chancellor to Hon''ble the Chief Justice of this Court against Shri Liyaqat Ali the learned Second Additional District Judge Faizabad for abuse of process of law by influencing learned Civil Judge, Junior Division, Faizabad to get the temporary injunction in his daughter''s favour.

However, the petitioner Avadh University had given a list of 25 cases in its affidavit dated 22.11.2004 where temporary injunction was granted by trial Court. The other cases referred by respondents'' University are as under:

Sl. No. Regular Suit No. Name of plaintiffs

251 of 2004 Shaziya Parveen

251 of 2004 Mitali Srivastava

251 of 2004 Anjali Ratan

264 of 2004 Km. Bibha Singh

According to petitioners counsel, admission to graduate and post graduate courses are governed by provisions contained in U.P. State Universities Act, statute, Ordinance, Government Orders, Chancellors order and decision taken of the Admission Committee which is statutory body created under Section 28 of the U.P. States Universities Act. The Admission Committee of the petitioner University in its meeting held on 3.6.2003 provided 60 seats for post graduate courses in the College in question subject to 15 per cent increase with the permission of Vice Chancellor with the rider that in any case the number of students shall not exceed beyond 80 and the affiliated Colleges were informed accordingly. The minutes of meeting of Admission Committee dated 3.6.2003 has been annexed as Annexure3 to the writ petition which was circulated to all affiliated Colleges vide circular dated 18.6.2003, a copy of which has been annexed as Annexure2 to the writ petition. Meaning thereby, for one class at the postgraduate level number of students shall be 60 with the maximum limit of 80. In some course, seats fixed to 30, 40 or 60. The last date of submission of form in the College in question was 30.11.2003 and with late payment the time stretch was given up to 31.12.2003. According to Vice Chancellor circular dated 23rd June 2003, a copy of which has been filed as Annexure5 to the writ petition, all constituent or affiliated Colleges were restrained to admit students beyond their sanctioned strength. It has been further provided by Vice Chancellor''s circular that in case students are granted admission beyond the sanctioned strength then such students should not be permitted to appear in the examination. Appropriate action should be taken to deaffiliate such Colleges who admit the students beyond their sanctioned strength. In compliance of Vice Chancellor circular the petitioner University had also issued appropriate order and circular to all the affiliated Colleges of the Universities. A copy of circular dated 4.7.2003 issued by petitioner University has been attached as Annexure 6 to the writ petition.

When the petitioner University had came to know relating to temporary injunction granted by learned Civil Judge Junior Division, immediately it has rushed to the Court by preferring an application for vacation of temporary injunction granted by learned trial Court. A copy of application dated 24th April 2004 has been filed by the petitioner is attached as Annexure7 to the present writ petition. While preferring an application for vacation of temporary injunction it was categorically pleaded by petitioner University that the Civil Court was not competent to grant temporary injunction in view of bar created by Section 69 of the U.P. States Universities Act. Categorical allegation was raised and pleaded against Shri Liyaquat Ali, First Additional District Judge in the application filed by petitioner University. It has been also pleaded by the petitioner University that learned Civil Judge had acted in hasty manner to grant temporary injunction in favour of opposite party No.4. Accordingly it has been argued that process of law was abused by the custodian of law having duty to impart justice. Serious allegations were levelled by the petitioner University in its application and attention of Court was also drawn towards the order dated 12.4.2004 passed by this Court in writ petition No.1651 (MS) of 2004.

Records of the trial Court was also summoned to ascertain the allegations raised by the petitioner. The records shows that the copy of order dated 7.4.2004 passed in Writ Petition No.1521 (MS) of 2004 and Writ Petition No.1522 (MS) of 2004 was also placed on record before the trial Court on 24th April 2004. On 24th April 2004 learned Civil Judge, Junior Division, Faizabad instead of hearing the application on merit had adjourned the case for 5th July 2004. The date which was already fixed at the time of earlier hearing. The order sheet further shows that on 17.5.2004 the petitioner as defendant No.2 and 3 in the suit in question had moved an application as paper No.20 Ga 2 for early disposal of application for vacation to temporary injunction but learned Civil Judge, Junior Division, Faizabad had declined to accept the petitioner''s prayer and adjourned the same for July with the remark �HINDI�. On 5th July 2004 the case was adjourned for 12th July 2004 with remark that �HINDI�. Again on 12th July 2004 the case was adjourned on account of lawyers strike and fixed for 27th July 2004. In the meantime, the suits were transferred to Civil Judge, Junior Division, Hawali, Faizabad. Various dates were fixed by learned trial Court on one or other ground and the petitioner''s application for vacation of temporary injunction was being kept pending by the trial Court.

During the course of hearing it was pointed out by Shri Manik Sinha, learned counsel for the petitioner that after receipt of complaint from the Vice Chancellor of the petitioner University regarding the abuse of authority and process of law by Shri Liyaquat Ali, the Administrative Judge of Faizabad had directed to transfer the case to some other Court. The order was also communicated by the Joint Registrar of the High Court to the Vice Chancellor of the petitioner University. A letter produced by learned counsel for the petitioner before this Court is reproduced as under in its totality:

From,

B.R.Singh, HJS,

Joint Registrar,

High Court,

Allahabad.

To,

Prof. Ram Achal Singh,

The Vice Chancellor,

Dr. Ram Manohar Lohia Avadh University,

Faizabad. U.P.

NO. C.V. 647/2004/Alld. Dt. July 12, 2004.

Respected Sir,

I am directed to say that Hon. The Administrative Judge, Faizabad has been pleased to pass order on your complaint dated 3.5.2004 regarding abuse of authority and process of law by Sri Liyaqat Ali, Additional District Judge, Faizabad, as under:

�The matter is quite serious. Both the officers shall be required to send their comments immediately (through D.J.) so as to reach me within ten days from today.

D.J. should transfer the suit to some other Judge.

V.C. of the University be asked as to why appeal was not filed against the order complained of.�

Kindly reply as desired by Hon''ble the Administrative Judge, Faizabad.

Yours faithfully

��..

(Joint Registrar)�

Ultimately on 26.2.2004 the application for vacation of temporary injunction was disposed of by the learned trial Court by passing the following order:

�Called out. Ld. Counsel for all the parties are present. Heard and perused the relevant file. In the application for temporary injunction, the plaintiffs have sought for issuing identity card and giving examination. From the perusal of the file it appears that identity cards have been issued and the plaintiff have given their exams. So now nothing is left for extension of injunction. The purpose have been solved. The application has become infructuous. Anything more was not said by the Ld. Counsel of the parties.

O.

6 c2 is thus disposed of. Fix 16.3.2005 for issues.�

From the evidence on record as well as counter affidavit filed by respondents there is no material or pleading which may show that the students who had filed the regular suits referred hereinabove were granted admission against sanctioned strength in the College in question. From the circular issued by the Chancellor it is evident that all the affiliated Colleges were expected to admit the students only within the sanctioned strength and in the event of admission beyond sanctioned strength the students were not entitled to appear in the examination.

Shri Rakesh Kumar Nain, the then Civil Judge, Junior Division who had passed the impugned order had submitted in his reply that since he had found that primafaice case exists for the grant of interim injunction and balance of convenience were in plaintiff''s favour and there were chance of irreparable injury he had proceeded to grant temporary injunction. If it is so then when the petitioner University had moved an application for vacation of temporary injunction on 24th April 2004 along with a copy of interim order passed by this Court in identical cases then why he had not taken care to decide the said application on early date. Even on the next date of listing of the civil suit he had simply adjourned the application for a date in July and again it was adjourned for other date. It appears that deliberately and intentionally Shri Rakesh Kumar Nain had not considered two interim orders dated 7.4.2004 passed in Writ Petition No.1521 (MS) of 2004 and another order dated 7.4.2004 passed in Writ Petition No.1522 (MS) of 2004 providing that candidates shall be permitted to appear in the examination only in case if they were admitted in the College in question to pursue their studies within its sanctioned strength. Being a member of judicial fraternity and presiding officer of the subordinate Court and under the hierarchy of system it was expected from Shri Rakesh Kumar Nain to immediately consider and decide the petitioner''s application for vacation of temporary injunction keeping in view the interim order passed by this Court in identical cases as well as should have decided the question of jurisdiction raised by petitioner relating to the maintainability of the suit itself. Instead of expressing sorryness the learned Civil Judge, had tried to defend himself relying upon the Apex Court judgment reported in 1997 (1) SCC 279. According to Apex Court judgment in case prima facie case exists the competent Court may pass temporary injunction. Learned Civil Judge, had further submitted that since the matter could not have been referred to Chancellor under the facts of the present case hence the bar in sub clause 2 (h) of Order 39 of the Code of Civil Procedure read with Section 69 of the U.P. States Universities Act was not attracted. The averments contained in para 4 of the counter affidavit seems to be an assertion on part of Civil Judge, Junior Division to submit that he was having jurisdiction to pass the impugned order. The averment contained in para 4 of the affidavit dated 18.8.2004 was pleaded in spite of observation made by this Court in interim order dated 15.7.2004 which was very well communicated to him. While submitting reply, the learned Civil Judge, Junior Division had given a gobye to interim order passed by this Court and interpreted the statutory provisions in a manner which goes contrary to observation made by this Court in its interim order. In the hierarchy of system it was at all not permissible on the part of respondents Civil Judge, Junior Division to make a submission which amounts to overriding or superseding the order of this Court.

The record shows that on 24th April, 2004 the petitioner University had also filed a Chancellor''s circular dated 23.6.2003 which provides that all admissions in the University and affiliated Colleges should be done within the sanctioned strength. The Chancellor''s circular also does not permit the students admitted beyond the sanctioned strength to appear in the examination. Relevant portion from Chancellor''s circular is reproduced as under:

Inspite of fact that Chancellor''s circular was placed on record by the petitioner, learned Civil Judge had not realized his fault in granting temporary injunction and kept the matter pending.

While filing the application dated 24th April 2004 for vacation of temporary injunction it has been categorically pleaded in the application under Para 22 and 23 that Court had acted in a very unfair manner while granting temporary injunction to Km. Sazia Parveen. It has been also pleaded that one Benu Singh and Manoj Kumar Pandey had also approached the Lucknow Bench of Allahabad High Court and when they failed to get any interim order they have filed a regular suit. It was also brought into notice by the petitioner University that in an identical matters this Court had passed conditional order permitting the students to appear in the examination only in case they were admitted against the sanctioned strength. For a ready reference the portion of averment as contained in petitioner''s application filed in the trial Court on 24.1.2004 for vacation of temporary injunction is reproduced as under:

A copy of another interim order dated 12th April 2004 was also filed before the trial Court passed by this Court in Writ Petition No.1081 (MS) of 2004. The copy of Chancellor''s circular, copy of vacation for temporary injunction and copy of interim order passed by this Court on 12th April 2004 have been filed as Annexure 5, 6 and 7 respectively to the writ petition.

Needless to say that in the hierarchy of our judicial system it is not open to subordinate Courts to interpret the provision of law in different manner than what is interpreted by this Court. Such practice is deprecated with all firmness. Hon''ble Supreme Court while assailing such conduct in a recent case reported in (2005) 1 SCC 1, Sompal Singh v. Sunil Rathi and another, held as under:

�In the hierarchical judicial system, it is not for any Court to tell a superior Court as to how a matter should be decided when an appeal it taken against its decision to that superior Court. Such a course would be subversive of judicial discipline on the bedrock of which the judicial system is founded and finality is attached and orders are obeyed. We do not consider it proper to say anything further and would like the matter to rest there.�

It has been settled by Apex Court long back that whenever the order or judgments or pronouncement is brought into notice of subordinate Court, the subordinate Court shall be bound to take its notice and should be followed in letter and spirit. The nonfollowing of previous decision (precedent) or order of the High Court shall amount to contempt of Court. In a case reported in AIR 1972 SC 2466, Sri Bharat Kant Mishra (sicSri Baradakant Mishra) v. Sri Bhim Sen Dixit, Hon''ble Supreme Court had proceeded to held as under:

�Para 14: ����Under Article 227 it has jurisdiction over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that Court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate Courts can equally do so, for there is no specific provision, just like in the case of Superme Court, making the law declared by the High Court binding on subordinate Courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working, otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer.

Para 1516: The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior Court''s disobedience to the specific order of a superior Court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the Court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermined the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law.�

In view of discussion hereinabove, it was incumbent upon the learned Civil Judge to expedite the application of the petitioner for vacation of temporary injunction on early date. When it was brought into notice of learned Civil Judge that some of the plaintiffs had filed the regular suit after failing to get an interim order as per their wishes, and concealed material fact in identical case and High Court had passed different order with the observation that no student should be permitted to appear in the examination admitted beyond sanctioned strength then what had prompted the learned Civil Judge to keep the matter pending.

Needless to say that every fraudulent act of a plaintiff or defendant should be dealt with as early as possible. Otherwise it shall shake the people''s confidence in the administration of justice and system. Personal interest or deferment of proceedings by a Presiding Officer of a Court for extraneous reasons or considerations shall give a serious setback to the administration of justice. From the facts and circumstance discussed hereinabove very fairly it can be inferred that the learned Civil Judge had not acted fairly but he had entertained the suit and passed an interim order for some extraneous reasons, which is not expected form a judicial officer.

The petitioner University in its affidavit dated 22.11.2004 had given the particular of students who were admitted and permitted to appear in the examination beyond the sanctioned strength. For convenience, the statement as given in para 4 of the petitioner''s affidavit is reproduced as under:

Name of Class/Subject Sanctioned Admitted Excess

Colleges Seat strength admission

K.S.S.P.G. M.A.I/Eng. 81 106 25

College, M.A.I/Ancient 81 85 04

Ayodhya, History

Faizabad M.A.I/Pol. 81 85 04

Science

M.A.I/Hindi 81 97 16

M.A.I/Geography 54 55 01

M.Sc.I/Zoology 41 43 02

M.Sc. I/Botony 41 58 17

M.Sc.I/Chemistry 54 76 22

M.ComI 81 86 05

Sant Tulsidas, M.A.I/ 54 79 25

P.G. College, HomeScience

Kadipur, Sultanpur

Munshi M.A.I/ 54 158 104

R.P.S.P.M. Home Science

P.G. College,

Barabanki

Gayatri M.ComI 81 86 05

Vidyapeeth

P.G. Risiya,

Bahraich

M.M.M. M.A.I/ 54 57 03

P.G. College, Geography

Kala Kakar,

Pratapgarh

M.L.K. M.A.I/ 81 84 03

P.G. College Pol. Science

Balrampur

J.L.N.M. M.A.I/Hindi 81 121 40

P.G.C. M.A.I/Sociology 81 139 58

Barabanki

Ganpat Sahai,M.A.I/Sanskrit, 81 89 08

P.G. College, M.A.I/Medial 81 101 20

Sultanpur History

M.A.I/Sociology 81 108 27

Kisan P.G.C.,M.A.I/Hindi 81 93 12

Bahraich

H.N. Bahuguna M.A.I/Hindi 81 93 12

P.G.C. Lalganj

Pratapgarh

R.R.P.G. College M.A.I/Sanskrit 81 85 04

Amethi 81 84 03

Sultanpur

From the above facts reproduced and referred hereinabove has been not denied by the respondents. It is also clear from the figure that almost 96 candidates were permitted to pursue studies and to appear in the examination in the K.S. Saket Post Graduate College, Faizabad who were admitted beyond the sanctioned strength. Position is same to all other Colleges who are affiliated to petitioenr''s university. In one College namely Munsi R.R.S.P.M. P.G. College, Barabanki 104 candidates were admitted beyond the sanctioned strength. The petitioner University had disclosed that learned Civil Judge, had granted temporary injunction and permitted 109 students of various Colleges to appear in the examination.

Shri Liyaquat Ali had filed an affidavit with submission that he had not persuaded the learned Civil Judge to pass the temporary injunction in question. He had submitted that his daughter was admitted in the College in question on merit and allegation raised against him are false and based on unfounded facts. In an affidavit filed by one Shri Dharmendra Kumar Mishra in support of an application for impleadment as a party it has been stated that the petitioner University had declared the result of all the candidates who were admitted beyond the sanctioned strength. Accordingly a prayer was made that the result of all the candidates whose matter are covered by the proceedings pending in this Court should also be declared. However, by the interim order result of all the candidates have been directed to declare provisionally.

Smt. Preeti Srivastava, Civil Judge, Junior Division, Hawali in her affidavit had submitted that on 26.2.2005 she had disposed of the petitioner''s application as infructuous on account of fact that the examination was over and petitioner was appeared in the said examination in pursuance to identity card issued in compliance of temporary injunction granted by the Court. It is unfortunate that Civil Judge, Junior Division, Hawali had not decided the application for temporary injunction on merit. Even if admission card was issued in pursuance to temporary injunction passed by learned trial Court, it was incumbent upon the Civil Judge, Junior Division, Hawali to decide the application on merit after considering the ground raised by petitioner''s University. Any action taken by the authorities in pursuance to interim order or temporary injunction granted by a Court shall not attain finality and will not extend a perpetual right unless the Court gives a finding on merit by deciding the issues in question. She had also failed to take notice of the interim order passed by this Court in other petitions, which were on record. It was expected from Smt. Preeti Srivastava, learned Civil Judge, Junior Division, Hawali to decide the application for temporary injunction on merit keeping in view the question of jurisdiction as well as interim order passed by this Court in identical case. The inaction on the part of Civil Judge, Junior Division in not deciding the application on merit seems to suffer from nonapplication of mind.

Even if parties had not pressed the application on merit for some unforeseen reason, it was incumbent upon the Civil Judge, Junior Division, Hawali to decide the issue on merit keeping in view interim direction issued by this Court.

It has been settled by this Court in a case reported in 1993 (2) UPLBEC 1019, Pradeep Kumar Arora v. ViceChancellor, Meerut University, Meerut and others, that the principal of an institution has got discretion in the matter of admission of students and even if his or her name has been recommended for admission in accordance to Government Order, and in case he/she found something which is against the rules or the admission of such students may create some untoward incident principal may decline to grant admission. Accordingly the respondent College was justified in not issuing admission card to the petitioner since his name was not approved by the petitioner University to appear in the examination. Petitioner University was justified in not allowing the respondents College to permit the private respondents to appear in the examination as they were admitted beyond the sanctioned strength in violation of Chancellor''s circular.

Section 28 deals with the power of Universities to regulate the admission in the University as well as affiliated or constituent Colleges. For convenience Section 28 of the Act is reproduced as under:

�28. Admission Committee (1) There shall be an Admissions Committee of the University, the constitution of which shall be such as may be provided for in the Ordinances.

(2) The Admissions Committee shall have the power to appoint such number of subCommittee as it thinks fit.

(3) Subject to the superintendence of the Academic Council and to the provisions of subsection (5), the Admissions Committee shall lay down the principles or norms governing the policy of admission not various courses of studies in the University and may also nominate a person or a subCommittee as the admitting authority in respect of any course of study in an Institute or a constituent College maintained by the University.

(4) Subject to the provisions of subsection (5), the Committee may issue any direction as respects criteria or methods of admissions (including the number of students to be admitted) to constituent Colleges maintained by the State Government and affiliated or associated colleges, and such directions shall be binding on such Colleges.

(5) Notwithstanding anything contained in any other provision of this Act

(a) reservation of seats of admission in any course of study in University, Institute, constituent College, affiliated College or associated College for the students belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens may be made and regulated by such orders as the State Government may, by notification, make in that behalf:

Provided that reservation under this clause shall not exceed fifty percent of the total number of seats in any course of study.

Provided further that reservation under this clasue shall not apply in the case of an institution established and administered by minorities referred in clause (1) of Article 30 of the Constitution.

Provided also that the reservation under this clause shall not apply the category of Other Backward Classes of citizen specified in Scheduled II to the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Others Backward Classes) Act, 1994.

(b) admission to the medical and engineering colleges and to course of instruction for degrees in education and Ayurvedic or Unani systems of medicine (including the number of students to be admitted) shall subject to clause (a), be regulated by such orders (which if necessary may be with retrospective effect, but not effective prior to January 1, 1979) as the State Government may by notification, make in that behalf.

Provided that no order regulating admission under this clause shall be inconsistent with the rights of minorities in the matter of establishing and administering educational institutions of their choice;

(c) in making an order under clause (a), the State Government may direct that any person who wilfully acts in a manner intended to contravene, or defeat the purposes of the order shall be punishable with imprisonment for a term not exceeding three months or with the fine not exceeding one thousand rupees, or with both, as may be specified in the order.

(5A) Every order made under clause (a) of subsection (5) shall be laid, as soon as may be, before both Houses of the State Legislature and the provisions of subsection (1) of Section 23A of the Uttar Pradesh General Clauses Act, 1904 shall apply as they apply in respect of rules made by the State Government under any Uttar Pradesh Act.

(6) No student admitted to any college in contravention of the provisions of this section shall be permitted to take up any examination conducted by the University and the Vice Chancellor shall have the power to cancel any admission made in such contravention.�

A plain reading of Section 28 of the Act shows that admission to a University and its associate or constituent colleges is regulated by the committee constituted by the university in pursuance to power conferred by subsection 1, 2, and 3 of the Section 28 of the Act. In case any admission is done incontravention of procedure, rules or guidelines framed by the admission committee then the concerned University may prohibit such students from appearing in the examination in pursuance to power conferred by subsection 6 of Section 28 of the Act. Subsection 6 is mandatory in nature. In case admission is done beyond the sanctioned strength, the Vice Chancellor may take appropriate action in accordance to law and students so admitted may be debarred to appear in the examination.

It has been settled by a Division Bench of this Court in a case reported in 1985 ALJ 290, Ramesh v. Vice Chancellor that the Admission Committee is competent to prescribe the number of students to be admitted in each course or session. Candidates does not have got vested or absolute right to get admission in a College or University or to appear in the examination (1986 ALJ 135, Kamal Singh v. Vice Chancellor, Allahabad University). Under Section 13 of the U.P. States Universities Act it is the duty of Vice Chancellor to supervise and control the affairs of university including its constituents colleges. The Vice Chancellor shall be responsible for holding and conducting the university examination properly and shall also be responsible to ensure that result of all such examinations are published expeditiously so that academic session of the university starts and ends on a proper dates. For convenience subsection 1, 2 of Section 13 is reproduced as under:

�Section 13 Powers and duties of the Vice Chancellor (1) the Vice Chancellor shall be the principal executive and academic officer of the University and shall

(a)exercise general supervision and control over the affairs of the University including the constituent colleges and the Institutes maintained by the University and its affiliated and associated colleges;

(b)given effect to the decisions of the authorities of the University;

(c)in the absence of the Chancellor, preside at meetings of the court and at any convocation of the University;

(d)be responsible for the maintenance of discipline in the University;

(e)be responsible for holding and conducting the University examinations properly and at due times and for ensuring that the results of such examinations are published expeditiously and that the academic session of the University starts and ends on proper dates.

(2) He shall be an ex officio member and Chairman of the Executive Council, Academic Council and the Finance Committee.�

Apart from Section 28, under Section 33 of the Act every University shall have an examination committee. Under subsection 4 of Section 29 of the Act the Examination Committee shall have power to debar the student from appearing in future examination on the use of unfair means.

In view of statutory provisions discussed hereinabove the petitioner university was justified in not permitting the students to appear in the examination who were admitted beyond sanctioned strength. It was the petitioner University which had not permitted the respondents college to issue admission card. Though a suit may be filed against college for any arbitrary action done at its level but in the present case since controversy relates to issuance of admission card and permission to appear in the examination it falls within the domain of petitioner University. It is settled law that what can not be done directly it can not be done indirectly. Once the petitioner University had decided not to permit the candidates to appear in the examination, it shall amount to a decision taken by the University. There is no role of affiliated or constituent Colleges in the matter of examination at their own level except to follow and implement the decisions taken by the University. Everything is to be done by University in pursuance to provision contained in Section 28 read with Section 29 of the U.P. States Universities Act. Accordingly a suit shall be barred in view of provision contained in Section 69 of the U.P. States Universities Act. For convenience Section 69 of the U.P. States Universities Act is reproduced as under:

�Bar of suit No suit or other legal proceedings shall lie against the State Government or the Director of Education (Higher Education) or the Deputy Director (as defined in Section 60A) or the Authorised Controller or the University or any officer, authority or body thereof in respect of; anything done or purported or intended to be done in pursuance of the Act or the rules or the statutes or the ordinances made thereunder.�

A plain reading of Section 69 of the Act shows that suit shall be barred against the decision taken by the State Government or its authorities or the Universities or any officer or authority or body thereof in respect to anything done or purported or intended to be done in pursuance to Act, Rules or statute or the ordinance made there under. Since a decision was taken not to issue admission card and also not to permit the students to appear in the examination who were admitted beyond the sanctioned strength and it was decided by the petitioner in pursuance to statutory power conferred by the Act as well as Chancellor''s circular, the suit was barred and the learned Civil Judge, Junior Division, Sadar, Faizabad was not competent to entertain the suit and pass an order of temporary injunction.

Under Section 68 of the Act a reference can be made to Chancellor in case any question arises relating to appointment of a member of authority or the body of University as well as any decision taken by any authority or officer of the University under the Act statute or ordinance. The decision taken by the petitioner to permit those student who were admitted beyond the sanctioned strength to appear in the examination was a lawful decision and in pursuance to power conferred by the Act. Accordingly a reference under Section 68 of the Act was very well maintainable before the Chancellor of the University. The legislature has used the word �Any decision of any authority of officer of the University� covers the entire field which includes admission and examination matters also.

A Division Bench of this Court in a case reported in 1981 UPLBEC 241, Rajendra v. Civil Judge, Bulandshahr and others, had proceeded to held that suit shall not be maintainable against the order passed by the Vice Chancellor or Chancellor. For convenience relevant portion from Rajendra''s case (supra) is reproduced as under:

�Section 68 contemplates reference of a dispute arising out of any decision of any authority or officer of the Unviersity to the Chancellor and the decision of the Chancellor thereon shall be final. Section 69 of the Act lays down that no suit or other legal proceedings shall lie against the State Government or the Director of Education or the Deputy Director of the authorized Controller or the University or any officer, authority or body thereof in respect of anything done or purported to be done in pursuance of the Act or the rules or the statutes or the ordinances made thereunder. Section 68 of the Act confers wide power on the Chancellor to adjudge the validly of selection and appointment of a teacher or principal as well as the order of the Vice Chancellor approving or disapproving the selection or appointment of a teacher. By Section 68 A of the Act the Chancellor is empowered to enforce his order against the Management of an affiliated College. The legislature has specifically declared that the decision of the Chancellor under Section 68 shall be final. By enacting Section 69 the legislature intended to impose a bar on the jurisdiction of the Civil Court to entertain a suit against the authorities designated therein as well as again any Act or Order of any authority, officer or body constituted under the Act.�

Hon''ble Supreme Court in a case reported in AIR 1969 SC 78, Dhula Bhai v. State of M.P. and others, held that if a statute imposes a liability and creates an effective machinery for deciding question of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may confer exclusive jurisdiction on the authorities to decide the controversy. For convenience relevant portion from Dhula Bhai''s case (supra) is reproduced as under:

�Neither of the two cases of Firm of Illuri Subayya, 19641 SCR 752 = (AIR 1964 SC 322) or Kamla Mills, 1966 1 SCR 64= (AIR 1965 SC 1942) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows:

(1) Where the statute gives a finality to the orders of the special tribunals the Civil Court''s jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provisions, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.

Where there is no express exclusion the examination of the remedies and the scheme of the particulars Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability an further lays down that all question abut the said right and liability shall be determined by the tribunals or constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionally of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limit or illegally collected a suit lies.

(6) Question of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.�

By the U.P. Amendment in Order 39 Rule 2, subrule 2 it has been added, that no injunction shall be granted in any matter where a reference can be made to the Chancellor of an University under any enactment for time being in force. It further provides that any order or injunction granted in contravention of provisions shall be void. As discussed and held hereinabove a reference shall lie under Section 68 to the Chancellor. No temporary injunction could have been granted by the learned trial Court. Even otherwise also keeping aside, the provision of Order 39 subrule 2, in view of unambiguous bar created by Section 69 of the Act the suit was not maintainable before the trial court for the purpose of relief claimed by the plaintiff. Directly or indirectly the trial Court was not competent to pass an order which amounts to interference with the decision taken by the petitioner University in pursuance to power conferred by the Act relating to the examination in question.

Subrule 3A of Order 39 provides that injunction application should be disposed of within thirty days in case it has been granted without giving notice to the defendant. For convenience Order 39 Rule 3A is reproduced as under:

�3A. Court to dispose of application for injunction within thirty days Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavor to finally dispose of the application within thirty days from the date on which the injunction was granted and where it is unable so to do, it shall record its reasons for such inability.�

It is unfortunate that learned Civil Judge, Junior Division had adjourned the case without giving any heed to statutory duty, to dispose of petitioner''s application for temporary injunction. No reason has been assigned by the learned trial Court while adjourning the case. There is not even a whisper relating to the interim order passed by this Court in identical matter or in the present case. It was an unfortunate act on the part of presiding officer of the Court below.

Learned Civil Judge while considering the petitioner''s application for vacation of temporary injunction as well as the subsequent application for expeditious disposal of stay vacation application had acted in a mechanical manner without considering the duty assigned by Order XXXIX Rule 3A of the Code of Civil Procedure referred hereinabove.

Order XXXIX Rule 3A of the Code of Civil Procedure makes it mandatory for the trial Court to decide the application for vacation of temporary injunction within thirty days from the date when injunction was granted and in case it is not possible then the reasons should be recorded. In the present case, an ex parte temporary injunction was granted by the learned Civil Judge. Accordingly, when an application was moved, it was incumbent upon him to decide the same within time frame provided by Order XXXIX Rule 3A of the Code of Civil Procedure. In case there was any problem, it was incumbent upon learned Civil Judge to assign reasons while deferring the application. In the present case, as discussed hereinabove no reason has been assigned by learned Civil Judge either on 24th April 2005 when an application for vacation of temporary injunction was moved by the petitioner University or on subsequent date when another application was moved for expeditious disposal of earlier application.

As held by Hon''ble Supreme Court in a case reported in 2004 (5) SCC 1, Triputi Balaji Developers (P) Ltd. v. State of Bihar, in our country and especially in judicial fraternity there is hierarchy of system and lower tear (sictier) is bound by the higher tear (sictier). Accordingly, when the interim order passed by this Court was produced before the trial Court it was incumbent upon the presiding officer of the Court to decide the application moved under Order 39 Rule 1 and 2 of the Code of Criminal Procedure on merit instead of adjourning the same without any rhyme and reason. Relevant portion from Triputi Balaji''s case (supra) is reproduced as under:

�The founding fathers of the Constitution devised a justicedelivery system in the country as one homogeneous in content, taking care of independence and hierarchy both, and holding the scales of balance even while doing so. The Union judiciary and the State judiciary are undoubtedly independent of each other except for a few areas relating to jurisdiction as we have very briefly indicated hereinbefore. However, at the same time, we cannot resist laying emphasis on the appellate hierarchy which, examined in the correct perspective, is a factor strongly contributing towards the independence of the judiciary and securing finality in adjudication within the delicate balance has been carefully crafted and sought to be achieved by independence and interconnectionboth existing simultaneouslyof the Supreme Court and the High Court.�

A great judge and jurist Benjamin N. Cardozo has a little bitter fruth to describe. Cautioning the judges against the officialinjudge being permitted to swallow up the maininhim. Benjamin Cardozo says that there have been judges in the past who suffered that disaster. However, what Cardozo has in mind is something more than

�the egotism that displays itself in harsh and overbearing manners, in explosive vigour of voice, etc. Exuberance such as these are at times the result of infirmities of temper not unknown altogether to the Bench though happily uncommon more often they are the defensive appliances of weakness or incapacity, conscious of its failings, and hopeful to divert attention by what seems to be a manifestation of its strength.

The slumbering beast is in us, and may be waked to life and fury if we feed him overmuch. The ravening official will seek to swallow up the man. I interpret the invitation to be with you today as an expression of your judgment that whatever mistakes I may have made and I know that they have been more than I like to figure or remember I have at least avoided this one, I have not allowed the officials to swallow up the man. I don''t mean that I am entitled to a great deal of credit for so modest an achievement. In a Court where the tradition of courtesy and equity is so ingrained and inveterate as it is in the Court of Appeals, one would have to be a pretty hardened sort of sinner to be guilty of the particular form of wrongdoing that its origin in the pride of office. But then, when you come to think of it, virtues are important in the inverse order to the credit that is due to those who cultivate and practice them. No one of us struts about with satisfaction for the selfrestraint involved in refraining from the crime of homicide, yet if the importance of the virtue were the measure of the credit we should all be crowing and cawing with the pride of moral excellence. So I don''t assume to pride myself on the very modest virtue of being merely a human being.�

The material on record shows that large number of students were being admitted beyond the sanctioned strength. The coming generation gets first lesson from the Schools, Colleges and Universities to shape up their future. In case the Colleges and Universities are permitted to admit students without following the due process of law at the pleasure of Principal or person who are at the helm of affairs it shall create chaos in the society or country. It appears that students were admitted in the affiliated or constituent Colleges of the petitioner''s University without having any time frame. The last date for admission in the Colleges were only on paper. The admission were done from time to time at the pleasure of Principal of the Colleges. In consequence there of petitioner University as well as Colleges failed to maintain discipline in the matter of admission resulting in induction of students beyond the sanctioned strength.

Admission in the affiliated Colleges were done without adhering to the prescribed procedure and admission forms were accepted and forwarded by the Colleges to the petitioner University even after lapse of last date of submission of form, such actions gives feeling to the citizen and the aspirants for admission that every wrong shall be converted into right and they shall get fruit of their wrong deeds. It appears that there is no strict compliance of procedure relating to the admission in the respective classes as well as acceptance of examination form and other related matters. Hon''ble Supreme Court in one another case reported in 1995 Supp (1) Supreme Court Cases 188, Gurdeep Singh v. State of J & K and others held that unduly lenient view of the courts on the basis of human consideration in regard to such excesses on the part of the authorities, will jeopardize the burden of selection process itself and shall engender cynical disrespect towards judicial process. Such tendency should be stopped. For convenience, relevant portion of Gurdeep Singh''s Case (supra) is reproduced as under:

�12. What remains to be considered is whether the selection of Respondent 6 should be quashed. We are afraid, unduly lenient view of the Courts on the basis of human consideration in regard to such excesses on the part of the authorities, has served to create an impression that even where an advantage is secured by stratagem and trickery, it could be rationalized in courts of law. Courts do and should take human and sympathetic view of matters. That is the very essence of justice. But considerations of judicial policy also dictate that a tendency of this kind where advantage gained by illegal means is permitted to be retained will jeopardized the purity of selection process itself; engender cynical disrespect towards the judicial process and in the last analysis embolden errant authorities and candidates into a sense of complacency and impunity that gains achieved by such wrongs could be retained by an appeal to the sympathy of the Court. Such instances reduce the jurisdiction and discretion of courts into private benevolence. This tendency should be stopped. The selection of Respondent 6 in the sports category was, on the material placed before us, thoroughly unjustified. He was not eligible in the sports category. He would not be entitled on the basis of his marks, to a seat in general merit category. Attribution of eligibility long after the selection process was over, in our opinion, is misuse of power. While we have sympathy for the predicament of Respondent 6, it should not lose sight of the fact that the situation is the result of his own making. We think in order to uphold the purity of academic processes, we should quash the selection and admission of Respondent 6. We do so, though, however reluctantly.�

It appears that State Government as well as Universities have not taken appropriate effective steps to regulate the admission as well as examination in the Universities and Colleges in a fair and proper manner so that the coming generation may achieve excellence on merit in the respective fields.

Under Directive Principles of the State Policy (PartIV of the Constitution of India), the Constitution commands the State to discharge certain duties of course, for the peoples of their own territorial jurisdiction. Article 38(2) of the Constitution of India commands the State, strikes to minimize the inequalities in status, facilities and opportunities not only amongst individuals but also amongst group of people. Article 39 (a) of the Constitution of India commands the State to frame policies for securing equal rights for adequate means of livelihood. Article 41 of the Constitution of India further provides that the State shall make effective provisions for securing the right to work, right to education etc. Article 46 of the Constitution of India further provides that the State shall take special care of educational and economical interest of the weaker section of the societies.

Article 51 A of the Constitution of India provides that every citizen shall work to develop the scientific temper, humanism and spirit of equality and reform in the country. It further provides that it shall be duty of every citizen to strive towards excellence in all sphere of individual and collective activity, so that the nation constantly rise to the higher levels of endeavor achievement. Such excellence or scientific temper cannot be achieved unless admission in the Colleges and Universities are strictly done within the sanctioned strength. Needless to mention that the strength of class in the Universities and the Colleges are decided on the basis of infrastructure as well as the teacher students ratio. In case admission are granted beyond the sanctioned strength or to an unlimited number it shall give a setback to the coming generation to achieve excellence in the respetive fields. The teachers or professor will not be able to impart education up to mark in case number of students are higher then sanctioned strength.

Things are done in such a manner for extraneous reasons and considerations, which results into serious setback to the constitutional goal. Unmeritorious scholars will have dark future not only in the competitive examination but also in their personal life with scrupulous mind and may indulge into corrupt and criminal activities.

Since it was argued by petitioner''s counsel, Shri Manik Sinha that it has become a common feature in the State of U.P. that Committee of Management/principal of the private institutions used to admit students beyond sanctioned strength in violation of statutory provisions, Government orders and circulars of the Chancellor. The petitioner University was directed to constitute a Committee to submit its opinion as to what steps should be taken to check reoccurrence of such incident in future. The Committee was constituted by the petitioner University which has submitted its report and the same has been filed through supplementary affidavit. Opinion was also sought by this Court from the Chancellor of the University. Shri D.K. Arora learned counsel for the Chancellor had placed on record a circular dated 6th September 2005 which provides that all the Universities of the State has been directed that admissions should be done within the sanctioned strength. The relevant portion from the recommendation submitted by the Committee constituted by the University duly approved by its Vice Chancellor is reproduced as under:

In view of the discussion hereinabove, coupled with Chancellors'' Circular, neither the University nor its constituents, associates or affiliated Colleges have got right to admit students beyond sanctioned strength. In view of the statutory bar, under subsection 6 of Section 28 of the U.P. States Universities Act, students admitted beyond the sanctioned strength shall have no right to appear in the examination. Neither this Court in pursuance to power conferred by Article 226/227 of the Constitution of India nor the subordinate Courts have got power to permit the students to appear in the examination by interim order or by temporary injunction who have been admitted beyond the sanctioned strength in an University, College or an institution as it shall amount to an order passed in violation of statutory provision contained in U.P. State Universities Act. Admissions granted beyond the sanctioned strength in an University, College or an institution will not extend any right to such students and accordingly even if students had studied for a year or more will have no right to appear in the examination.

No candidate can be granted admission in an University or its constituent or affiliated or associate colleges in violation of Chancellor''s Circular or Circular issued by the University concerned. The Principal or Management of the Colleges have no right to admit the students after the last date of admission fixed by the University concerned or the Chancellors and admission done after last date of admission will extend no legal right to such candidates to appear in the examination. It is the University and its authority who can pass appropriate order in accordance to decision taken by the examination committee/admission committee.

Any admission done by the Principal or Committee of Management of an institution beyond the sanctioned strength or any candidate permitted to appear in the examination without prior permission of University concerned or the competent authority shall be an act not sustainable under law and such act of the Principal shall amount to misconduct for which appropriate action may be taken in accordance to law.

In view of the finding recorded hereinabove, the temporary injunction granted by learned Civil Judge as well as admission made by the Principal of the respondents'' College to pursue the studies are not sustainable under law. During the course of argument it was submitted by learned counsel for the petitioner, Shri Manik Sinha, that it has become common feature of the State of U.P. in the private Colleges to admit the students beyond the sanctioned strength in connivance with the Committee of Management. Such actions are spoiling the academic atmosphere of the Colleges and Universities. Accordingly, it shall be appropriate that State Government as well as the Chancellor of Universities should make appropriate provision to check such malpractice. Appropriate provision should be made to take penal action against the Principal as well as Committee of Management of the respective institutions or colleges. The statutory provision contained in the U.P. States Universities Act as well as various Government circulars seems to have been given gobye for one or other reason creating serious setback to academic atmosphere in the State of U.P.

Since right to life including right to live with dignity, right to quality of life, right to livelihood coupled with various other rights protected by Article 21 of the Constitution of India, it is a paramount duty of the States and the Universities to do all the things which may be necessary to enhance and improve merit and excellence in the academic field. Since number of seats in an institution are sanctioned keeping in view the teacher student ratio and the available infrastructure it shall be necessary that admission of students should be done within the sanctioned strength.

This Court is not powerless to provide certain guidelines or lay down the procedure to fill up the vacuum on account of lack of provision in an Act or Statute. In a case reported in (2002) 5 Supreme Court Cases 440, Rakesh Wadhawan and others v. Jagdamba Industrial Corporation and others, Hon''ble Supreme Court has held as under:

�Sometimes when a difficult situation arises it may demand such directions being made as would pragmatically meet the needs of the situation and resort can be had to the inherent powers of the Court, if need be. Krishna Iyer, J. in Newabganj Sugar Mills Co. Ltd. v. Union of India held (at SCC p.123, para 6) �the difficulty we face here cannot force us to abandon the inherent powers of the Court to do� and he quoted Jim R. Carrigan to say: �The inherent power has its root in necessity and its breadth is coextensive with the necessity.� H.R. Khanna, J. observed in Jaipur Mineral Development Syndicate v. CIT (SCC p.511, para 5)�

In view of above, it shall be appropriate that certain guidelines may be provided to check the reoccurrence of such practice in the Universities and colleges of the State of U.P. till State Government or the Chancellor takes appropriate steps keeping in view observation made hereinabove.

FINDING

In view of above, the present writ petition deserves to be allowed. The writ petition is allowed subject to following directions:

(I) Shri Rakesh Kumar Nain, Civil Judge (Junior Division), Sadar Faizabad seems to have deliberately and intentionally deferred the proceedings of trial Court and had not considered the interim order passed by this Court as well as pleading on record that the suits were filed with fraudulent act. There seems to be deliberate and intentional attempt on the part of Shri Rakesh Kumar Nain, which is not expected in our hierarchy of system. The reoccurrence of such incident shall erode the people''s faith in the administration of justice. Accordingly, the conduct of Shri Rakesh Kumar Nain is �CENSORED� and the remark of this Court shall be a part of his service record.

(II) In view of facts and circumstances, discussed hereinabove Shri Liyaquat Ali, Additional District Judge, Faizabad is �WARNED� to remain cautious in future as it was he who seems to have prompted the learned Civil Judge at initial stage to pass temporary injunction, which is prohibited by law. The warning given by present judgment shall be a part of his service record.

(III) Civil Judge, Hawali, Smt. Preeti Srivastava in view of facts and circumstance discussed hereinabove is directed to remain cautious in future to comply with the orders passed by this Court in letter and spirit.

(IV) A writ in the nature of certiorari is issued quashing the temporary injunction granted by the trial Court dated 6th April, 2004 in Regular Suit No.251 of 2004 as well as order dated 26.2.2004.

(V) Since, already result of the students have been provisionally declared in pursuance to interim order passed by this Court, the said declaration of result shall be subject to final outcome of regular suit pending in the trial Court. The trial Court is directed to decide the suits keeping in view the observation made in the present judgment expeditiously and preferably within a period of three months from the date of receipt of a certified copy of this order and shall send a compliance report to this Court, immediately thereafter.

(VI) In view of Chancellor''s circular and provision of law discussed hereinabove neither University nor their associate or affiliated colleges have right to admit any student after last date of admission and in case any candidate is admitted after the last date of admission, such admission shall be nullity and no right shall accrue to such students, to appear in the examination. It shall be personal responsibility of the Principal of the respective institutions as well as the Vice Chancellor of the Universities not to permit any student to get admission in a course after the last date provided for the purpose.

(VII)Immediately after last date of admission and within a period of fifteen days thereafter, the affiliated, associate colleges or institutions shall send the list of candidates admitted for various courses to the Vice Chancellor of the respective University for record. Only those candidates shall be permitted to appear in the examination whose names shall find place in such list.

(VIII)In case, any candidate admitted after last date of admission or beyond the sanctioned strength, then for such act the Principal or the Manager of the College as the case may be, can be prosecuted on criminal side also and shall be a ground to take appropriate action in accordance to provision contained in the States Universities Act as well as Chancellor''s circular. Similar action may be taken against the Vice Chancellors of the Universities or competent authorities for any negligence on their part, admitting the student beyond the sanctioned strength of the University or after last date of admission.

(IX)The Principal of the respective colleges as well as Manager shall not permit the students to appear in the examination who have been granted admission after last date of admission or in a subject beyond the sanctioned strength or in an unrecognized subject. An action done in violation of this Order as well as Chancellor''s circular shall be a ground to initiate action against the Principal as well as Manager and also shall be a ground to derecognize such institution. Violation of this order as well as Chancellor''s circular may be a ground to award major punishment to Principal of an institution.

(X)The principal as well as Committee of Management may be prosecuted on criminal side also in case an offence is made out from the facts and circumstance of a particular case.

(XI)It is expected that State Government shall take appropriate step to provide sufficient mode to check admissions in the Universities and Colleges beyond the sanctioned strength. Some effective punitive provision should be made to punish the principal, authorities, management or other persons who are found to be involved in such malpractices adversely affecting the academic atmosphere of an institution.

Before parting with the judgment I wish to remind the members of the subordinate judiciary by quoting a passage from the judgment of Hon''ble Supreme Court reported in (2005) 1 SCC 201, Tarak Singh and another v. Jyoti Basu and others:

�Again, like any other organ of the State, the judiciary is also manned by human beingsbut the function of the judiciary is distinctly different from other organs of the State in the sense its function is divine. Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors fail people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth. Because of the power he wields, a judge is being judged with more strictness than others. Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary must take utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the justicedelivery system resulting in the failure of public confidence in the system. We must remember that woodpeckers inside pose a larger threat than the storm outside.�

Nothing should be done by the members of judiciary, which may shake the public faith in the administration of justice. The protection granted by the Judicial Service Protection Act as well as Constitution should be enjoyed to deliver judgment without fear or favour with intention to serve people but such protection should not be abused for vested interest.

Let a copy of this judgment be sent to Registrar General of this Court as well as District Judge, Faizabad for compliance. The District Judge, Faizabad shall transfer the suits in question to some other competent Court who shall decide the same in the light of observation made in the present judgment and in accordance to law. Copy of present judgment may also be sent to Administrative Judge of Faizabad for information and appropriate action.

Office shall send the copy of present judgment also to the Chancellor of the Universities, Principal Secretary, Higher Education as well as Principal Secretary, Law for appropriate action and issuance of appropriate order or circular in compliance of observation made in the present judgment to provide appropriate safeguard to check such malpractices. While doing so the Chancellor as well as State Government may also consider the finding recorded by the Committee constituted by the petitioner University, referred in the present judgment. It shall be appropriate that State Government may legislate and take steps by framing appropriate law consisting effective punitive measures to check the admission of students in the Colleges and Universities of the State of U.P. beyond the sanctioned strength as well as after last date of admission. It shall be also appropriate that some time frame may be provided by the Government or the Chancellor to regulate the admission as well as examinations in the Universities and Colleges of the State of U.P. expeditiously.

Writ petition is allowed accordingly. No order as to costs.

(Petition allowed)