T.N. Singh, J.@mdashThe Sports Authority of India is vested with the management of Lakshmi Bai National College of Physical Education, Gwalior, for short, LNCPE, established by the Ministry of Human Resources Development, Government of India. It is "autonomous" College, affiliated to Jiwaji University, Gwalior. The degree of Bachelor of Physical Education (B.P.E.) is conferred by the University for which a three-year course is conducted in LNCPE and regular examinations are held in April, while supplementary in August/ September every year.
2. The petitioner took her examination Jn B.P.E. Part II in April, 1988, but failed in theory papers of two subjects, securing 22 marks in "Psychology" and 16 marks in "Citizenship", as against the prescribed minimum of 25 marks in each. Admittedly, results were declared on 12th June, 1989 and on 1st July, 1989, she applied for revaluation in those two papers, as per Annexure R/I. It appears that candidates who had to take supplementary/second examination in Sept., 1989 in B.P.E. Parts I, II and III were informed by notice (Annexure R/II) about their performance and applications and examination fees were invited from them. Petitioner''s name figured in the list attached to annexure R/II and in that list also figured names of Dimbeswar Das of B.P.E. Part II and Shekhar Mourya and Mukesh Kumar of B.P.E, Parti. The main grievance of the petitioner is that the respondent was bound by this Court''s order passed on 1-11-1989 in M.P. No. 1226 of 1989 in the case of Shekhar Mourya, Mukesh Kumar and Dimbeswar Das and she should also have been given admission in B.P.E. Part III in accordance with decision rendered by this Court. We had based our decision in that case on proviso to amending Clause 6(1), 4th proviso of Ordinance No. 7 of Jiwaji University and that is extracted:
"Provided further that the Dean shall have power to grant admission to candidates who qualify for admission in higher class after revaluation of marks beyond the last date of admission as given above on the clear understanding that the attendance of all such students admitted under the proviso shall be counted from the date of commencement of Session."
3. In Shekhar Mourya''s case, we took the view that the petitioners had applied for admission to enforce their entitlement under the aforequoted provision after revaluation result was declared on 6-9-1989 and that was arbitrarily refused by the Dean passing a non-speaking order, "Admission not allowed". We rejected the contention agitated by the Dean that provision vested in him purely discretionary power and he need not give any reason. We held that the power had to be exercised reasonably and in the usual course admission could be refused when vacancies did not exist. We also held that the Rule aforequoted was an enabling provision contemplating notional credit of attendance to be given to students so admitted. The question of short attendance, therefore, did not arise and it had no bearing on the entitlement of candidate''s eligibility for anticipatory admission in higher classes.
4. In the instant case, Shri Roman''s contention supporting Dean''s return, we had noted in our order passed in this matter as early as on 15-12-1989. This petition was filed on 27-11-1989 and we had expedited hearing on being satisfied that it was a covered case and the question of petitioner''s right to anticipatory admission deserved priority treatment. On that date, we ordered provisional admission to be given to her taking the view that the petitioner had, in the meantime, crossed the last hurdle as she had passed also the supplementary examination. We found merit in the reliance of petitioner on the following provision of LNCPE''s prospectus ("Course of Study and Prescribed Books of B.P.E.") which gave an edge to her grievance and required immediate redressal:
"All candidates who are declared to be eligible for appearing at Supplementary Examination may join the next higher class in anticipation of declaration of results for the Supplementary Examination at the option of the College. Their attendance, like those of the other students, shall be counted from the beginning of the session. If they fail in the Supplementary Examination held in August/ September their admission in the higher class shall be cancelled".
5. Final disposal of the petition was deferred on the prayer of Shri Roman that the petitioner had not made any application to avail the benefit of the provision and her entitlement was dependent on that. Because that question had to be decided with reference to relevant provisions of the Prospectus and of University''s Ordinance, we heard this matter finally on 22-1-1990 for disposal and reserved order thereafter. The matter had come up before us earlier, on 12-1-1990, and on that date an additional return was filed though that was not contemplated at that stage as the matter remained part-heard on 15-12-1989. Still, suffice it to say that a strange plea, wholly foreign and unfounded on facts, is raised to wriggle out of fact-situation posed by the provisions that we had noted as also noticed during hearing on 15-12-1989. We do not know how the Dean could take the plea that "the petitioner was not residing in Gwalior till November, 1989", since August, 1989. Indeed, the irrefutable, admitted and patent is fact that she had taken her supplementary examination in September, 1989 and had even passed that examination. However, to some of documents filed along with the additional return, namely, Annexure R/I and R/II, we have referred above. We are required by the respondent to presume absence of petitioner from Gwalior merely because as per copies of postal receipts, some communications had been addressed to her at her Delhi address. Copies of documents filed in that regard cannot, therefore, advance respondent''s case. However, in our view, nothing turns on the facts pleaded in the additional return because petitioner''s entitlement has to be, and is found duly established aliunde, in law.
6. On the basis of provisions of the Prospectus of the College and University''s Ordinance, we have no doubt at all about petitioner''s entitlement. In Shekhar Mourya''s case, MP No. 1226 of 1989 (Madh Pra) (supra), we had spoken generally about vacancies without reference to the relevant provisions. That view was expressed in respect to the normal incident of admission under normal circumstances. The correct position in law in the context of relevant provisions noted above is that the question of vacancy will not be germane to anticipatory admission on provisional basis in higher classes of the same course for which instructions are imparted in three parts and examination is likewise held. There can be no question of any outsider being admitted in any part of the course for which degree is awarded only by Jiwaji University in respect of the course conducted in LNCPE in its status as an autonomous college. The provisions of the afore-extracted University Ordinance (extracted from Shekar Mourya''s case) confer power on Dean to grant admission to candidates qualifying for admission in higher classes after revaluation of marks and under those of the College Prospectus, afore-quoted, entitlement is also contemplated to secure admission in a higher class pending declaration of result of supplementary examination. It is true that such candidates can be only those who are taking the supplementary examination in one paper only, but if the result of revaluation in the case of the candidate failing in two papers make him eligible for the supplementary examination and if applications are filed for both, revaluation and supplementary examination, there would be duty cast on the Dean on result of revaluation being declared, to inform the candidate concerned of his entitlement to take anticipatory admission in the next higher class. That has to be done because it is the College which has to exercise "option" in that regard and unless that is done, the candidate will not be able to "join" the higher class.
7. The University Ordinance and the prospectus provision have an wholesome object meant to give life and purpose to educational plans and schemes of the College (LNCPE) and of that the facilities provided to students such as of revaluation of answer scripts and supplementary examination are integral parts. The constitutional imperative of Arts. 14 and 46 have an abiding and relevant message to be stressed in this context. Right to education and that too, of a weaker section, such as the women, are required to be effectively protected and promoted and the educational system must have inbuilt machinery to achieve that end. The College is bound to suffer loss of institutional credibility if the students are arbitrarily denied the promised benefits envisaged either under the University Ordinance or under the College Prospectus. It will make a mockery of the system to which College is statutorily as also constitutionally committed by rigid links. Such a situation would indent institutional credibility of an educational institution and that has to be judicially pre-empted.
8. In that instant case, as earlier pointed out, the petitioner had applied as per Annexure R/I revaluation of her answer scripts in both papers -- "Psychology" and "Citizenship" and she had also applied for taking examination in those two papers as per Annexure R/III. From the endorsements on the applications, it appears that fees were deposited on 25-8-1989 for the examination while for revaluation, that was done on 3-7-1989. Unfortunately, still, the only communications sent to her are those manifested in Annexures R/II and R/IV. By the first one, she was intimated that fees had to be paid and applications submitted for second/supplementary examination to be held in August/ September, 1989 and by the second, copy of the programme for the examination was sent to her on 1-9-1989. She ought to have been informed the result of her valuation and the Dean ought to have exercised his option on that date allowing her to attend higher classes as she had duly fulfilled the requirement of taking the supplementary examination securing thereby the entitlement to anticipatory admission. That admittedly has not been done. On the other hand, in the return, the fact which is not denied is that she had made applications to avail benefit of Rules and it is, on the other hand stated that the Dean had no jurisdiction or authority to admit any student in the higher class after 14th August, 1989. That stand makes a rude mockery of the provisions noticed above. At para 8 of the petition, on oath, the petitioner has stated in categorical terms that revaluation results were declared on 5-9-1989 and that of supplementary examination, on 10-11-1989 and that she had "applied several times to the Dean for seeking admission in B.P.E. Part III" and "all the applications were kept with the Dean himself and (he) not allowed the petitioner the admission". She has also stated in the petition that by legal notice Annexure P/6, pointed attention of Dean was drawn to this Court''s order passed in Shekhar Mourya''s case MP No. 1226 of 1989, D/- I-11-1989 (Madh Pra) (supra), claiming benefit of that decision and yet, nothing came out of that. These averments have remained unchallenged. On facts, we are fully satisfied that the respondent, Dean, acted arbitrarily in dealing with the petitioner resulting in denial to her of right of anticipatory admission contemplated under the provisions of the University Ordinance and College-Prospectus.
9. We are, therefore, of the view that the respondent has no defence and the stand he has taken to oppose admission of the petitioner in B.P.E. Part HI is wholly unjustified and unreasonable. Accordingly, we make absolute the interim order passed in this matter on 15-12-1989 because the petitioner has already cleared B.P.E. Part II. We direct that she be allowed to continue her studies in B.P.E. Part III and attend classes for that part of the course. She shall be given notional credit in respect of attendance as contemplated under the Rule.
10. In the result, the petition succeeds and is allowed. Although we are unhappy with the stand taken by the Dean and petitioner is entitled to her costs, we refrain from making that order, hoping that the petitioner shall not be victimised and cordial relations shall be maintained in the faculty among teachers and the students.
