Rakesh Tiwari, J. - (1.) HEARD counsel for the petitioner and Sri Ved Vyas Misra for the respondent university.
(2.) THIS writ petition has been filed for quashing the order dated 10.12.08 passed by the Secretary, UP. Madhyamik Sanskrit Shiksha Parishad, Lucknow to the effect that petitioners would be permitted to appear in the examinations as private candidate on the ground that as no student has been sent by the institution for the last three years for appearing in the examination conducted by the aforesaid Board, hence in view of Sections 37(8) and 49(d) of Article 12.31 of Sampumanand Sanskrit Vishwavidyalaya Niyamawali, affiliation of the institution has ceased. Contention of the counsel for petitioner is that Assistant Registrar of the University vide his letter dated 25.1.09 appended as Annexure 2 to the rejoinder affidavit has informed the DIOS that affiliation of the college in question is continuing. It is also stated that there is no provision in U.P. Secondary Sanskrit Education Board Act (U.P. Act No. 32 of 2001) to the effect that if no student is sent for appearing in the examination by the college for three years, affiliation would cease. It is submitted that Assistant Registrar of the university has granted affiliation for the year 2007-08 and also for the year 2009 to the institution where the petitioners are studying, as such no direction can be issued by the respondents for appearance of the petitioners in the examination as private candidate. The Standing Counsel appearing on behalf of the DIOS as well as the Board submits that respondent board has rightly taken a decision for petitioners' appearance in the examination as private student for the reason neither fee has been deposited nor they have any legal right to appear in the examination as regular student being barred by provisions of Sections 37(8) and 49(d) of Article 12.31 of Sampumanand Sanskrit Vishwavidyalaya Niyamawali.
(3.) IN rebuttal, counsel for the petitioner submits that it is apparent from the rejoinder affidavit that petitioners have paid their examination fee etc., and being regular student of the college they cannot be compelled to appear in examination as private students. After hearing counsel for the parties at length, in the opinion of this Court, in the absence of any provision in the aforesaid Act, the petitioners cannot be directed by the Board or DIOS to appear in the examination as private student also for the reason that respondent university still recognises the institution of petitioners as affiliated to it as is apparent from the record, and therefore the petitioners cannot be denied to appear in the examination as regular student merely on the basis of some deeming provision in the Act or statute.;