G. P. Mathur. J. - (1.) THE petitioner has filed this writ petition praying that a writ of mandamus be Issued to the respondents to allow him admission in M.Ed, course 1991-92 in Meerut College Meerut Parties have exchanged affidavits and therefore, the writ petition is being disposed of finally at the admission stage.
(2.) THE case of the petitioner, in brief, is that Meerut College is an institution affiliated to Meerut University and it imparts education upto Post Graduate level; that the petitioner applied for admission in M Ed. course and submitted an application for that purpose in the University; that the University recommended his name for admission In Meerut College; that the petitioner approached the. Head of the Department of Education in Meerut College who asked for a report from the Proctor of the College; that the Proctor gave a report that the petitioner's name was in the list of candidates 'not to be admitted'; that thereafter the Chairman of the Admission Committee refused to admit the petitioner. THE case of the petitioner further Is that the State Government has issued an order on May 5, 1987 in exercise of powers conferred by a section 28 (51 of State Universities Act. 1973 (hereinafter referred to as the Act) and in accordance with the said order the Principal has no power to refuse admission to any student once his name is recommended by the Vice Chancellor of the University. A counter-affidavit has been filed on behalf of the Principal of the Meerut College and the case of the said respondent is that there were reports against the conduct of the petitioner The petitioner Is an in-disciplined student and the District Magistrate Meerut had. given report on August 6. 1986 and October 15. 1987 regarding those students whose admission In the college was likely to disturb the academic atmosphere of the Institution and was likely to create an atmosphere of lawlessness. The name of the petitioner was mentioned at si. no. 3 in the aforesaid list. A list was also prepared in the Meerut College regarding those students whose presence was likely to give rise to indiscipline and disturbance of the academic atmosphere of the institution and the petitioner's name found place in the said list. In January 1986 an order under section 144 CrPC was passed by a competent Magistrate whereby the petitioner and some other students were restrained from entering the premises of Meerut College and some other Institutions. It was on account of these reasons and to maintain proper academic atmosphere In the institution and In the Interest of students studying therein that the Principal decided not to admit the petitioner in Meerut College. It Is further pleaded that the list of the students sent by the University for admission In M Ed., course is recommendatory in nature and the Principal of the Institution has still a discretion in the matter, if he is of the opinion that a candidate Is not a fit person who should be granted admission. Learned counsel has submitted that State Government has issued an order on May 5. 1987 in exercise of powers conferred by section 28 (5) of the Act and in accordance with the said order the petitioner Is entitled to be admitted In Meerut College as his name was recommended by the Viae Chancellor and the Principal has no right or authority to refuse to grant admission to him- A copy of this order has been filed as Annexure-l to the writ petition. Learned counsel has drawn attention to paragraphs 4. 12 (3), 13 (2), 14 (c) and 13 of the order. Para 12 (3) provides that Principal will have a right not to grant admission to a candidate even though his name finds place in the merit list, if the District Magistrate has given a written report against him or he is being prosecuted for some criminal offence or he has been convicted in some criminal case, or he has been expelled for two or more years by the University on account of use of unfair means in examination, but for this purpose the Principal will have to obtain written permission from the University. It is contended by the learned counsel for the petitioner that as In the present case the Principal of the college had not obtained prior written permission from the University, he had no authority to refuse admission to the petitioner.
(3.) IN my opinion the contention raised by the learned counsel for the petitioner can not be accepted. There is no allegation in the writ petition that before refusing to grant admission to the petitioner, the Principal had not taken permission from the Vice Chancellor, This permission need not be for each INdividual student, Annexure-1 to the counter-affidavit Is a list prepared by the office of the Principal of the Meerut College on October 29, 1991 and It contains names of those persons (category 'A') who were not to be admitted in the college at ail and the name of the petitioner finds place in the said category. It is quite possible that this list was prepared by the Principal after taking permission from the University. IN absence of any clear and specific allegation in the writ petition to the effect that no permission was taken by the Principal from the University before refusing admission to the petitioner it is not open for him to contend that there has been a violation of para 12 (3) of the Government-Order. Learned counsel has referred to paragraphs 8, 9, 10 and 11 of the writ petition IN this regard. I have carefully perused the averments made in the aforesaid paragraphs of the writ petition and in my opinion the necessary factual foundation has not been laid in the aforesaid paragraphs of the writ petition which may enable the petitioner to contend that there has been a breach of para 12 (3) of the Government Order. Faced with the, difficulty, learned counsel for the petitioner has referred to para 8 of the rejoinder affidavit and also to a letter dated March 7, 1992 sent by the Vice Chacellor to the petitioner. It is not open to the petitioner to allege new facts IN the rejoinder affidavit. The letter of the Vice Chancellor has been sent in reference to the petitioner's application dated February 28, 1992. The copy of the aforesaid application has not been filed. IN rase the petitioner wanted to rely upon the aforesaid letter of the Vice Chancellor and wanted to plead some new facts, he should have sought the permission of the court to file a supplementary affidavit and then the respondents would have got an opportunity to file a reply thereto. It will not be proper to rely upon those facts and documents which have been brought on record for the first time through the rejoinder affidavit as the respondents has |got no right to file a reply to the same. Sri Pankaj Mittal, learned counsel for the respondents has further contended that the merit list sent by the University in accordance with the Government Order is merely recommendatory in nature end the final authority either to grant admission or to refuse admission still vests with the Principal of the institution. Sri Mittal has submitted that the merit list for the purpose of admission is prepared by the Vice Chancellor on the basis of academic record of a student. He has neither any material nor it is possible for him' to know about the other details of a candidate, The primary duty of a Principal of the institution is to maintain proper academic atmosphere and if he is of the opinion that the admission of a student would disturb the academic atmosphere of the institution, he has the right to refuse to admit him. I find the submission raised by the learned counsel well founded. Sub clause (5) of section 28 of the Act reads as follows : "Notwithstanding anything contained In any other provisions of this Act, admission to Medical and Engineering Colleges and to courses of instruction for degrees in Education or Ayurvedic and Unani Systems of medicine (including the number of students to be admitted/ shall be regulated by she orders (which if necessary may be with retrospective effect, but not effective prior to January 1. 1979) as the State Government may be by Notification make in that behalf : provided that ho order regulating admissions under this sub-section shall be Inconsistent with the rights of minorities in the matter of establishing and administering educational institutions of their choice." ;