1

'AFR'

Judgment reserved on 05.09.2013

Judgment delivered on 09.10.2013

Case :- WRIT - A No. - 48208 of 2012

Petitioner :- Dhanpal And Others

Respondent :- State Of U.P. And Others

Counsel for Petitioner :- V.K.Upadhyay,S.K.Upadhyay

Counsel for Respondent :- C.S.C.

Hon'ble Satya Poot Mehrotra, J.

Hon'ble Sanjay Misra, J.

Hon'ble Manoj Misra, J.

1.This Bench has been constituted pursuant to a referring

order dated 19.09.2012 passed by a learned Single Judge in

Writ Petition No. 48208 of 2012.

2.Before we proceed to examine the question that has

been referred to us, it would be useful to give the

background facts, in brief.

3.The petitioners took admission in Special B.T.C. Training

Course 2008. They underwent training, passed the practical

examination and, thereafter, gave their final written

examination. When their results were not declared, they

approached this Court by means of Writ Petition No. 13741

of 2012, which was disposed of with a direction to the

authority concerned to consider their claim by a reasoned

and speaking order, within a specified period. Pursuant to

the aforesaid direction, the respondent No.2 (the Secretary,

Examination Regulatory Authority, U.P.) proceeded to pass

an order dated 07.05.2012 (Annexure 4 to the writ petition),

thereby holding that as the petitioners were claiming under

a certificate of “Adhikari Pariksha ” from Gurukul

Viswavidhyalaya, Vrindavan (hereinafter referred to as

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Gurukul), which has been referred to as a fake institution in

Government letter dated 22.02.2008, and this Court also,

vide order dated 13.10.2011, in Special Appeal No. 1990 of

2011 (Indrawati Devi v. State of U.P. and others ), has

held that certificate conferred by Gurukul, which has been

declared a fake university by University Grants Commission

(hereinafter referred to as UGC), cannot be accepted as a

valid qualification, therefore, the prayer of the petitioners for

declaration of result cannot be accepted.

4.As the order impugned in the writ petition places

reliance on the Division Bench decision in Indrawati Devi's

case, it is necessary for us to refer to the reasoning adopted

by the Division Bench in Indrawati Devi's case (supra ).

In Indrawati Devi's case, the Division Bench had the

occasion to examine the correctness of a decision rendered

by a single judge by which he had dismissed the writ

petition of the petitioner. In the said writ petition, the

petitioner therein had challenged cancellation of his

candidature for BTC Training Course 2010. The candidature

was canceled on the ground that Adhikari Pariksha passed

from Gurukul in the year 2001 was not valid as the said

University has been declared to be a fake University. The

petitioner therein contested the cancellation on the ground

that Adhikari Pariksha till 2008, was considered equivalent to

High School by the Board. The single judge dismissed the

writ petition by observing that since Gurukul has been

declared fake by UGC, it had no power to confer or grant

degree, which can be done by a University established or

incorporated by or under a Central Act, Provincial Act or

State Act or an institution deemed to be a University under

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section 3 of the UGC Act, as has been held by the apex court

in Prof. Yashpal & anr. V. State of Chhatisgarh & Ors.,

(2005) 5 SCC 420 . Before the division bench, in appeal,

it was canvassed that Adhikari Pariksha was accorded

recognition up to the year 2008 by the Board, therefore, the

candidature of the petitioner, who had passed Adhikari

Pariksha in the year 2001, cannot be canceled. Rejecting the

said contention, the division bench while dismissing the

Special Appeal preferred by Indrawati Devi, observed as

follows:

“Mere fact that for some period, the Adhikari

examination conducted by the said University was

considered to be equivalent to the high school

examination of U.P. Board, as emphasized by the

learned counsel for the appellant by pointing out various

letters and documents of the Secretary of the U.P.

Secondary Education Board, Allahabad filed along with the

writ petition, the same will not validate the certificate,

since the University granting such certificate has not been

established or incorporated in accordance with law.”

5.The petitioners, in the instant petition, have claimed,

inter alia, that they had passed the “Adhikari Pariksha”

with English as one subject from Gurukul, in one session, as

a regular student in 1992, 1993 and 1995 respectively and,

at that point in time, “Adhikari Pariksha” examination

conducted by Gurukul, with English as one of the subject,

cleared in one year, was recognized by the Board of High

School and Intermediate Education, U.P. (hereinafter

referred to as the Board), up to the year 2008, as equivalent

to High School Examination, vide Entry No.30 in Regulation

2 of Chapter XIV of the Regulations framed under the U.P.

Intermediate Education Act, 1921 (hereinafter referred to as

Act, 1921). It is their case that the Board is the only

authority to recognize educational courses run by various

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bodies as equivalent to High School and once such

recognition has been accorded, no fault can be found with

the “Adhikari Pariksha ” certificates obtained by the

petitioners prior to the year 2008. Reliance has been placed

on several judgments and orders, mostly, passed by a Bench

presided over by a Single Judge, so as to contend that

“Adhikari Pariksha”, up to the year 2008, was duly

recognized as a qualification equivalent to High School.

Reliance has also been placed on a judgment rendered by a

Single Judge of this Court in the case of Akanksha Gautam

v. State of U.P. and others: 2012 (6) ADJ 107 , decided

on 30.03.2012, where the Court, after examining various

provisions of the UGC Act, 1956, the Constitution of India

and the Act, 1921 including Entry No. 30 in Regulation 2 of

Chapter XIV of the Regulations framed thereunder,

proceeded to hold that recognition of Adhikari Pariksha as

equivalent to High School was not dependent on the status

of Gurukul as a University within the meaning of section 2(f)

of the UGC Act, 1956 and, therefore, the declaration of

Gurukul as a fake University by UGC would not affect the

decision of the Board to accord equivalence to Adhikari

Pariksha with High School. The learned single judge

concluded that as the Board had accorded equivalence to

Adhikari Pariksha with High School, up to the year 2008,

therefore, all those persons who had obtained Adhikari

Pariksha certificate up to the year 2008 were entitled to its

benefit, regardless of Gurukul being declared a fake

University by the UGC.

6.The judgment rendered in the case of Akanksha

Gautam's case (supra) , although, notices various

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judgments but it fails to notice the Division Bench decision

of this Court in Special Appeal No. 1990 of 2011 (Indrawati

Devi's case), which had held that certificate of “Adhikari

Pariksha” obtained from Gurukul was not a valid degree.

7.Faced with conflicting judgments, one rendered by a

single judge of this court in Akanksha Gautam's case

(supra) and the other rendered by a division bench of this

court in Special Appeal No. 1990 of 2011 in Indrawati

Devi's case (supra), a single judge of this court, vide order

dated 19.09.2012, referred the matter for consideration by a

larger bench, in the following terms:-

“Judgment in the case of Akanksha Gautam Vs.

State of U.P. and others reported in 2012 (6) ADJ

107 has not at all taken into consideration, the judgment

delivered in Special Appeal No. 1990 of 2011

(Indrawati Devi Vs. State of U.P. and others ) decided

on 13.10.2011 whereas aforesaid judgment in question has

been delivered on 30th March, 2012. Both the judgments

are running in different direction adopting different set of

reasoning for arriving at definitive conclusion, in view of

this it would be much more appropriate that this matter be

referred to Larger Bench to examine .

i. As to whether view taken in case of Akanksha

Gautam Vs. State of U.P. and others reported in 2012 (6)

ADJ 107 is correct view.

Or

ii. as to whether view taken in Special Appeal No.

1990 of 2011 (Indrawati Devi Vs. State of U.P. and others)

decided on 13.10.2011 is correct view.

Let the papers be laid before the Hon'ble The Acting

Chief Justice for constituting the Larger Bench, in this

regard.”

8.While constituting the Larger Bench, the then Hon'ble

the Acting Chief Justice made an endorsement which reads

as follows:-

“Since it is judicial order I have no other alternative

but to constitute Larger Bench. But Larger Bench may at

first place consider the ratio propounded by the Supreme

Court in AIR 1968 SC 372 and enter upon the issue.

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Signed Hon'ble ACJ

01.10.2012”

9. In the light of the endorsement quoted hereinabove,

we may observe that it is well settled that a Division Bench

decision is binding on a Single Judge and in case of conflict

between the two, the Division Bench decision would prevail.

But where the Division Bench decision fails to take notice of

relevant statutory provisions or a binding precedent, its

decision may not have the binding force of a precedent and

in such a case, it is open to a Single Judge to refer the

matter for consideration by a Larger Bench. Therefore, the

question as framed by the learned single Judge may not be

in appropriate words. However, during the course of the

hearing, our attention was drawn to a Division Bench

decision of this Court dated 28.04.2010 in Special Appeal

No. 391 of 2010 (Anshul Singh Baghel v. State of U.P.

and others), where it was held that since it is not in dispute

that during the relevant period, the Adhikari Pariksha

conducted by the Gurkul was recognized as equivalent to the

High School Examination conducted by the Madhyamik

Shiksha Parishad, U.P., Allahabad and it was derecognized

only in the year 2008, a person, who had already passed the

Intermediate Examination conducted by the Madhyamik

Shiksha Parishad, U.P. Allahabad in the year 2007, could not

have been prevented from appearing in the selection

examination of the Constable, only on the ground that the

Adhikari Pariksha Certificate issued by the Gurukul has been

derecognized, vide order dated 10th July, 2008. The said

division bench went on to observe that the Madhyamik

Shiksha Parishad, U.P. Allahabad had clarified that the

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derecognition would be effective prospectively i.e. in respect

of the examination of Adhikari Pariksha conducted by the

Gurkul after the year 2008. Thus, i n view of conflicting

decisions of two benches, of co-equal strength, on the same

issue, in order to settle the issue, we entertain the reference

and reframe the question referred to us in following terms:-

(a) Whether Adhikari Pariksha Certificate issued by the

Gurukul Viswavidyalaya, Vrindavan, Mathura, up to the year

2008 i.e. till it was recognized by the U.P. Board of High

School and Intermediate Education as equivalent to High

School, obtained with English as one of the subject and

passed in one year is a valid qualification equivalent to High

School, regardless of Gurukul having been declared a fake

University by the UGC?

(b) Whether the decision of the division bench in

Special Appeal No. 1990 of 2011 dated 13.10.2011

(Indrawati Devi v. State of U.P. and others ), which

holds that “Adhikari Pariksha” certificate obtained from

Gurukul Viswavidyalaya, Vrindavan, Mathura cannot be held

to be a valid degree, does not lay down the correct law?

10.Before we proceed to answer the aforesaid questions, it

would be useful to put on record that w hen we first

assembled on 09.05.2013, pursuant to the order dated

01.10.2012 of the Hon'ble the Acting Chief Justice, we had

requested the petitioners' counsel, namely, Sri V.K.

Upadhyay and the learned Chief Standing Counsel, namely,

Sri Yaswant Verma to submit their respective written

submissions after serving copy thereof on the other side.

Accordingly, pursuant to our order dated 09.05.2013, on

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11.07.2013, the written submissions, as required by order

dated 09.05.2013, were filed by Sri V.K. Upadhyay, learned

counsel for the petitioners as also by Sri Yaswant Verma,

learned Chief Standing Counsel appearing for respondent

Nos. 1, 2, 4 and 5. As we discovered on that day that the

copy of the writ petition was not served upon the learned

counsel for the respondent No.3 (the Board), we directed

the learned counsel for the petitioners as also Sri Yaswant

Verma, learned Chief Standing Counsel, to inform the

learned counsel for the respondent No.3 regarding our order

and we also observed that by the next date i.e. 22.08.2013

the respondent No.3 may file written submission. We had

also directed Sri V.K. Upadhyay, learned counsel for the

petitioners, to implead University Grants Commission (UGC)

as party-respondent No.6 and to inform Sri Ritvik Upadhyay,

learned counsel for the respondent No.6, about our order.

11.During the course of hearing on 11.07.2013, Sri V.K.

Upadhyay, learned counsel for the petitioners, had brought

to our notice a letter dated 03.06.2008 written by the

University Grants Commission, New Delhi to the Vice-

Chancellor, Ex. Minister of U.P. Govt., Gurukul Vrindavan,

Mathura, U.P., which has been enclosed as Annexure 11 to

the writ petition. The said letter read as follows:-

“UNIVERSITY GRANTS COMMISSION

BAHADURSHAH ZAFAR MARG

NEW DELHI-110002

F.No.1-4/2006(MPC) 03

June, 2008

Sh. Sachidanand Gupta

Vice-Chancellor

Ex. Minister of U.P. Govt.

Gurukul Vrindavan,

Mathura, U.P.

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Sub: Deletion of the name of Gurukul Vishwavidyala

Vrindavan, Mathura, U.P. from the list of fake

Universities.

Sir,

With reference to your letter No. Gu, Vi. Vi, Vr/2008

dated 05.-06.2008 on the subject mentioned above. It is

observed that your institution i.e. Gurukul Vishwavidyala

Vrindavan, Mathura, U.P. is offering courses at Secondary

level only. As your institution is using the word

“Vishwavidyala” in this title, UGC asked clarification.

UGC advised to delete the word “Vishwavidyala”. As

per advise, the institute has changed its the name

“Gurukul Vishwavidyala Vrindavan, Mathura, U.P. ” to

Gurukul Vrindavan, Mathura, U.P. and the matter was

reported to Registrar, Co-operative Societies for

incorporating necessary change in this regard.

UGC considered the request of the institution for

deletion of name from the fake universities list of UGC and

agreed to subject to submission a copy of the name

change incorporated in the records of Deputy Registrar,

Co-operative Societies within 6 months.

Yours faithfully,

(Dr. A.K. Parate)

Joint Secretary

Copy to:

1.The Registrar, Gurukul Vrindavan, Vrindavan, U.P.

2.The Deputy Registrar, Co-operative Societies, Chit

Funds, Vikas Deep, 3

rd

Floor, Station Road, Lucknow, U.P.

3.P.S. to Chairman, UGC

(Dr. A.K. Parate)

Joint Secretary”

12.Referring to the aforesaid letter, Sri V.K. Upadhyay,

learned counsel for the petitioners, submitted that the UGC

was apparently concerned only with the use of word “

Vishwavidyala” suffixed to the name Gurukul and was

prepared to delete the name of Gurukul from the list of fake

Universities on deletion of the name of Vishwavidyalaya

suffixed to its name.

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13.In view of the above submission, we, by our order

dated 11.07.2013, required Sri V.K. Upadhyay, learned

counsel for the petitioners, to bring on record all relevant

documents with regard to the said letter by filing a

supplementary-affidavit by 22.07.2013 and fixed

25.07.2013.

14.On 25.07.2013, a supplementary-affidavit was filed in

terms of our order dated 11.07.2013 and the respondents

were provided time to file supplementary counter-affidavit

by 14

th

August, 2013. On that date i.e. 25.07.2013, Sri

V.K.Upadhyay informed the Court that after impleading UGC,

as respondent No.6, copy of the writ petition and copies of

written submissions were tendered to Sri Ritvik Upadhyay,

Advocate, who declined to accept the same on the ground

that he had no instructions in the matter. Accordingly, we,

by our order dated 25.07.2013, directed that notices be

issued to the University Grants Commission (UGC). We

further felt, on considering the nature of controversy, that it

would be appropriate that the institution in question,

namely, Gurukul Viswavidhyalaya, Vrindavan be impleaded

as respondent No.7 and, therefore, we directed the

impleadment of the said institution and, accordingly, ordered

that requisite steps to serve the respondent Nos. 6 and 7 be

taken by registered post A.D., fixing 22.08.2013. On

22.08.2013, on the joint request of the learned counsel for

the parties, the matter was directed to be listed on 05

th

September, 2013. On 05

th

September, 2013, an affidavit of

service was filed by the petitioners indicating that personal

service was effected on the respondent No.6 (UGC) and

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respondent No.7 (Gurukul Vishwavidhalaya). We also noticed

the office report dated 30

th

July, 2013 that notices were

issued to the respondent Nos. 6 and 7 as also the follow-up

office report dated 20

th

August, 2013 which indicated that

neither acknowledgment nor unserved notice was received

back. Accordingly, we proceeded to hear the matter by

treating service of notice as deemed sufficient. Sri Rizwan

Ali Akhtar, however, put in appearance on behalf of

respondent No.6 but no one appeared on behalf of

respondent No.7, therefore, we heard Sri V.K. Upadhyay,

learned counsel for the petitioners, Sri Anoop Kumar

Srivastava, learned Additional Chief Standing Counsel for the

respondent Nos. 1, 2, 4 and 5 and Sri Rizwan Ali Akhtar for

the respondent No.6.

15.Sri V.K. Upadhyay relying on the statement made in the

supplementary-affidavit dated 21

st

July, 2013, which was

filed on 25.07.2013, submitted that the UGC had put

Gurukul Viswavidhyalaya, Vrindavan in the list of fake

Universities only on the ground that it was using the word

“Viswavidyalaya i.e. University against its name ”.

Attention of the Court was drawn to a letter no. Misc. No.6—

2/ 2011, dated 09

th

September, 2011, written by Sarita

Makhija, Under Secretary, UGC to one Sri Arvind Kumar Pal,

wherein it was mentioned that UGC is concerned with

education at the graduate and post-graduate level and that

Gurukul Viswavidyalaya was entered in the list of fake

Universities only because it was using the word

“Viswavidyalaya against its name ”. Attention of the

Court was also drawn to a press release of the month of

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December, 2011, enclosed as Annexure S.A. No.3 to the

supplementary-affidavit in which it was mentioned “that

there are some institutions offering undergraduate/postgraduate

degrees in various subjects, which are not established under

either Central Act or State Act or UGC Act and, hence, these

institutions are fake Universities/Viswavidyalayas and do not have

any right to confer/grant degrees.” In the press release, the

name of such fake Universities was disclosed and Gurukul

Viswavidyalaya, Vrindavan, Mathura figured as one of the

fake Universities listed therein.

16.Relying on the aforesaid documents, the learned

counsel for the petitioners submitted that the institution

Gurukul Vishwavidalaya, Vrindavan, Mathura, by itself, is not

a fake or fictitious institution but was entered in the list of

fake universities only because it used the word

“Viswavidyalaya i.e. University against its name ” and

since it was not established either under a Central Act or

State Act or UGC Act, any degree conferred by it was not

recognized. Sri V.K. Upadhyay submitted that grant of

“Adhikari Pariksha” certificate by Gurukul is not equivalent

to conferment of a degree and, therefore, would not become

invalid merely because the UGC considers Gurukul to be a

fake University. It was submitted that grant of “Adhikari

Pariksha” certificate is in the realm of Secondary Education

to which UGC has no concern. It has been submitted that

UGC was constituted by Act No. 3 of 1956. The object of the

Act was to make provision for the co-ordination and

determination of standards in Universities and for that

purpose, to establish a University Grants Commission. He

submitted that the term University has been defined in the

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UGC Act, 1956 vide Section 2 (f) as follows:-

“2(f) "university" means a University established or

incorporated by or under a Central Act, a Provincial Act or

a State Act, and includes any such institution as may, in

consultation with the University concern, be recognized by

the Commission in accordance with the Regulations made

in this behalf under this Act.

17.He submitted that under Section 3 of the UGC Act,

1956, the Central Government may, on the advise of the

Commission, declare, by notification in the Official Gazette,

that any institution for higher education, other than a

University shall be deemed to be a University for the

purposes of this Act, and on such a declaration being made,

all the provisions of this Act shall apply to such institution as

if it were a University within the meaning of clause (f) of

Section 2.

18.Sri V.K. Upadhyay further submitted that UGC Act,

1956 was enacted by the Parliament in exercise of its power

under Entry 66 of List I-Union List in the Seventh Schedule

of the Constitution, which confers power on the Parliament

to legislate for the purpose of co-ordination and

determination of standards in institutions for higher

education or research and scientific and technical

institutions. He submitted that otherwise, power to legislate

with regards to education is covered by Entry No. 25 in List

III-Concurrent List in the Seventh Schedule, which is

subject to the provisions of Entries 63, 64, 65 and 66 of List

I. He submitted that mere declaration of Gurukul

Viswavidhyalaya, Vrindavan as a fake University would not

obliterate its recognition at the secondary education level,

which has been accorded to it by the Board in exercise of

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power conferred by Section 7(4) read with Section 15 of the

Act, 1921. It has been submitted that under Section 7(4) of

the Act, 1921, the Board has the power to recognize

institution for the purposes of its examination. Under Section

15 of the Act, 1921, the Board may make Regulations for

the purpose of carrying into effect the provisions of the Act,

1921 and by sub-section (2) of Section 15, the Board,

without prejudice to the generality of its power, conferred by

sub-section (1), has power to make Regulations providing

for the conditions under which candidates shall be admitted

to the examinations of the Board and shall be eligible for

diplomas and certificates as well as for the admission of

institutions to the privileges of recognition and the

withdrawal of recognition. The learned counsel for the

petitioners submitted that in exercise of the powers

conferred by the aforesaid provisions, the Board has framed

Regulations. Under Regulation 1 of Chapter XIV, it is

provided that for taking admission to the intermediate

examination course, a candidate must have either passed

High School or High School technical examination or must

have passed such equivalent examination as may have been

declared by the Regulations. It has been submitted that

Regulation 2 of Chapter XIV provides for the list of such

courses/examinations, which have been granted equivalence

with High School Examination. Entry No.30 of Regulation 2

of Chapter XIV provides equivalence to Adhikari Pariksha,

from Gurukul Vishwavidyalaya, Vrindavan, up to the year

2008, with High School provided it is with English as one of

the subject and has been passed in one year.

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19.On the strength of the aforesaid Entry, the learned

counsel for the petitioners submitted that declaration of

Gurukul Vishwavidyalaya, Vrindavan as a fake University

would not affect the Adhikari Pariksha certificate accorded to

such candidates who have passed the examination, up to the

year 2008, with English as one of the subject, and have

passed the same in one year.

20.The learned counsel for the petitioners further

submitted that Division Bench decision in Indrawati Devi's

case (supra) failed to notice the Regulation 2(30) of

Chapter XIV of the Regulations framed under the U.P.

Intermediate Education Act, 1921 and it also failed to

consider that UGC had put Gurukul Vishwavidyalaya,

Vrindavan in the list of fake Universities/ Institutions only on

account of having used the word “Vishwavidyala” suffixed

to its name and not with regards to its right or power to

confer valid certificates at the secondary education level.

21.Sri V.K. Upadhyay further submitted that in Akansha

Gautam's case (supra) , the learned Single Judge of this

Court had examined all the statutory provisions including the

powers of the UGC under the UGC Act, 1956 and had taken

the view that Adhikari Pariksha falls within the ambit of

secondary education, which is not governed by 1956 Act but

it is within the legislative competence of the State

Legislature and as, in the State of U.P., the secondary level

education is governed by the provisions of Act, 1921 and the

Board has accorded recognition to Adhikari Pariksha, vide

Regulation 2(30) under Chapter XIV of the Regulations

framed under the Act, 1921, the Adhikari Pariksha certificate

16

obtained by the petitioners cannot be invalidated, inasmuch

as, they were obtained prior to the year 2008.

22.Sri Yaswant Verma, the learned Chief Standing Counsel

appearing for the respondent Nos. 1, 2, 4 and 5, had

submitted detailed written submissions. In his submissions,

Sri Yaswant Verma very fairly stated that the U.P.

Intermediate Education Act, 1921 and the UGC Act, 1956

operate in clearly distinct fields. The 1956 Act, is concerned

primarily and solely with higher education of the

Universities. It does not touch upon the subject of High

School or Intermediate education. Similarly, the 1921 Act is

confined to the functioning of the Board constituted

thereunder and the conduct of High School and Intermediate

Examinations. In paragraph 10 of the written submissions,

he submitted that de-recognition or declaration of the

Gurukul Vishwavidyalaya, Vrindavan as a fake University,

should not affect the certification granted by it in so far as

the High School or Intermediate education examinations are

concerned. It has further been submitted that for the

purpose of conducting the High School or Intermediate

classes, an institution is not required to be established under

a Central, Provincial or State enactment as is in a case of

University. It has been submitted that for the purpose of

preparing students to participate in the High School or

Intermediate examination conducted by the Board, an

institution does not require any recognition from the

University Grants Commission. The recognition of the course

carried out by Gurukul Vishwavidyalaya, Vrindavan and its

equivalence thereof conferred by the Board under the

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provisions of the Act, 1921 was an act within the exclusive

domain and legislative authority of the Board. The

declaration of law by the apex court in the case of Prof.

Yashpal's case (supra) , is to be confined to Universities

alone and institutions imparting higher education and those

conferring degrees or otherwise falling within the ambit of

the provisions of the Act, 1956. It was further submitted

that pursuant to the press note dated 27.11.2007, issued by

the Govt. of India, giving a list of fake Universities, which

includes the Gurukul Vishwavidyalaya, Vrindavan, the Board

issued a notification dated 28.07.2008 revoking the

declaration of equivalence granted to the Adhikari Pariksha

issued by the said institutions and, accordingly, the

Regulations framed under the Act, 1921 were amended with

effect from 08.09.2008 wherein Entry No. 30 in Regulation 2

contained in Chapter XIV was amended to accord

equivalence to the said certificate up to the year 2008 only.

It has been submitted that subsequent to the judgment of

the Division Bench in the case of Indrawati Devi's case

(supra) and in deference to the law laid down therein, the

protection granted to the said certificate up to the year

2008, was also revoked and Chapter XIV was amended

accordingly. In his written submissions, Sri Yaswant Verma

very fairly submitted that the act of recognition being

accorded to Adhikari Pariksha conducted by Gurukul was a

power exercised by the Board in accordance with Section 15

and 16 of the Act, 1921, which was an act made in exercise

of delegated legislation, therefore, the amendment should

not be interpreted to have retroactive operation. It has also

been submitted that amendments made by the Board to

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Regulation 2(30) were not intended to be retrospective. It

has thus been submitted that the amended Regulation does

not have the effect of disabling or revoking the certificates

granted by the institution up to the year 2008. Sri Yashwant

Verma in his submission further submitted that if

retrospective operation be conferred on the amendments

made by the Board, it would result in thousands of students,

who had obtained the certification prior to 2008 and who

may have pursued studies further, to suffer from a

fundamental disqualification. Such an interpretation would

have a wholly unfair and catastrophic effect. He further

submitted that certificate which has been obtained by

persons prior to the year 2008, would stand saved by virtue

of invocation of the de-facto doctrine, inasmuch as, the

grant of certificate by the Gurukul Vishwavidyalaya,

Vrindavan have not been faulted prior to the year 2008 and

were rather statutorily recognized up to that period, as being

equivalent to the High School examination.

23.Although, the University Grants Commission Counsel

had put in appearance but he neither advanced any

submission nor disclosed any intention of filing any response

to the various affidavits and submissions made by the

learned counsel for the petitioners as well as the learned

counsel for the State.

24.At this stage, it would be useful to refer to certain

documents that have been brought on record, vide

Compilation-A, supplied by the Chief Standing Counsel, Sri

Yashwant Verma, Advocate. Enclosure No. I of the

Compilation-A reveals that vide Notification dated

19

19.09.2008 issued by the Secretary, U.P. High School and

Intermediate Education Board, Allahabad, it was notified

that the Government by its letter No. 2085/15-7-08-1(139)/

05, dated 03.09.2008, had approved amendment to Entry

No.30 in Regulation 2 of Chapter XIV of the Regulations

framed under the U.P. Intermediate Education Act, 1921, in

exercise of its power under Section 16(2) of the said Act,

and the said amendment would be operative with immediate

effect. The unamended and the amended Regulation 2(30),

as per the notification, reads as under:-

orZeku Lo:i

v/;k;&pkSng] fofu;e&2 (30)

xq:dqy fo'ofo|ky; o`Unkou }kjk

lapkfyr vaxzsth ds vf/kdkjh ijh{kk] tks ,d ls

vf/kd o"kZ esa [k.Mksa esa mRrh.kZ u dh xbZ gksA

fVIi.kh& bl fofu;e esa iz;qDr 'kCn [k.Mksa ls

rkRi;Z iwjd ijh{kk ls gSA

la'kksf/kr Lo:i

v/;k;&pkSng] fofu;e&2 (30)

xq:dqy fo'ofo|ky;] o`Unkou }kjk o"kZ

2008 dh ijh{kk rd lapkfyr vaxszth ds lkFk

vf/kdkjh ijh{kk] tks ,d ls vf/kd o"kZ esa [k.Mks

esa mRrh.kZ u dh xbZ gksA

fVIi.kh&bl fofu;e esa iz;qDr 'kCn [k.Mksa ls

rkRi;Z iwjd ijh{kk ls gSA

25.Enclosure No. V of the said compilation reveals that

vide Notification No. 09/85, dated 10

th

May, 2013, the

Secretary of the Board notified that the Government, vide its

letter No. 500/15-7-2013-1(139)/2005, dated 09

th

April,

2013, has approved the revocation of Entry No.30 in

Regulation 2 of Chapter XIV of the Regulations framed under

the U.P. Intermediate Education Act, 1921, in exercise of its

power under Section 16(2) of the Act. The notification

provides as follows:-

orZeku fofu;e

v/;k;&pkSng] fofu;e&2 (30)

xq:dqy fo'ofo|ky; o`Unkou] eFkqjk }kjk

o"kZ&2008 dh ijh{kk rd lapkfyr vaxsth ds

lkFk vf/kdkjh ijh{kk] tks ,d ls vf/kd o"kZ esa

[k.M+ks esa mRrh.kZ u dh xbZ gksA

la'kksf/kr fofu;e

v/;k;&pkSng] fofu;e&2 (30)

fo[kf.Mr

20

fVIi.kh& bl fofu;e esa iz;qDr 'kCn [k.Mksa ls

rkRi;Z iwjd ijh{kk ls gSA

26.Thus, from a careful examination of the record as also

the submission of the learned counsel for the parties, the

following position emerges:

(a) That “Adhikari Pariksha” certificate awarded by

Gurukul Viswavidhyalaya, Vrindavan, Mathura was accorded

equivalence with a High School certificate by the U.P. High

School and Intermediate Education Board vide Entry No. 30

in Regulation No.2 of Chapter XIV of the Regulations framed

under the U.P. Intermediate Education Act, 1921, provided

the same was passed in one year with English as one of the

subject.

(b) That UGC declared a list of fake Universities

wherein the name of Gurukul Vishwavidhyalaya, Vrindavan

finds mention.

(c) That in deference to the declaration by UGC, vide

notification dated 19

th

September, 2008, Entry No. 30 in

Regulation No.2 of Chapter XIV of the Regulations framed

under the U.P. Intermediate Education Act, 1921 was

amended with the sanction of the State Government, under

Section 16(2) of the U.P. Intermediate Education Act, 1921,

whereby the equivalence accorded to “Adhikari Pariksha”

was limited up to the year 2008.

(d) That subsequently, vide notification dated 10

th

May,

2013, Entry 30 in Regulation 2, under Chapter XIV of the

Regulations framed under the U.P. Intermediate Education

Act was revoked by amendment, with the sanction of the

Government, under Section 16(2) of the U.P. Intermediate

21

Education Act.

27.From Enclosure IV to the Compilation-A, which is a

letter no. 500/15-7-2013-1(139), dated 09.04.2013, written

by the Joint Secretary, Govt. of U.P. to the Director of

Education, Madhyamik Shiksha Parishad, it appears that

Entry No. 30 in Regulation 2 of Chapter XIV of the

Regulations was revoked in deference to the order of this

Court in Special Appeal No. 1990 of 2011 (Indrawati Devi

v. State of U.P. and others). A careful perusal of the said

letter reveals that pursuant to the decision of this court in

Indrawati Devi's case (supra) , the matter relating to

equivalence of Adhikari Pariksha was referred to the

Examination Committee of the Board, which met on

24.08.2012. The said Committee took cognizance of this

Court's order, in Indrawati Devi's case, wherein it was observed

that Gurukul Vishwavidyalaya, Vrindawan was neither

constituted under a Central Act nor a State Act and its

examinations were also not accorded recognition by the UGC

and since the UGC had put it in the list of fake Universities,

therefore, its certificates cannot be considered to be valid.

The Committee, accordingly, recommended for revocation of

the recognition accorded to the Adhikari Pariksha.

28.Decision in Indrawati Devi's case (supra) follows

the principle laid down by the apex court in the case of

Prof. Yashpal and Anr. v. State of Chhattisgarh & Ors :

(2005) 5 SCC 420 . In Prof. Yashpal's case (supra) , it

has been held that the right of conferring or granting degree

can be exercised only by a University or an institution

deemed to be University under Section 3 of the UGC Act or

22

any institution especially empowered by an Act of Parliament

to confer or grant degrees. Mere conferment of degree is not

enough. What is necessary is that the degree should be

recognized and it is for this purpose that the right to confer

degree has been given under Section 22 of UGC Act only to

a University established or incorporated by or under a

Central Act, Provincial Act or State Act or an institution

deemed to be a University under Section 3 of the Act. This

Court in Indrawati Devi's case, following the principle laid

down in Prof Yashpal's case (supra) , proceeded to hold

that since Gurukul was not established or incorporated

either by Central Act, Provincial Act or State Act nor there is

anything on record that it was ever recognized by the UGC,

and as it has been declared to be a fake University by the

State Government as well as UGC, the degree or certificate

conferred by it cannot be held to be a valid degree. The

Court further proceeded to observe that the mere fact that

for some period, the Adhikari examination conducted by

Gurukul was considered to be equivalent to the high school

examination of U.P. Board, the same would not validate the

certificate, since Gurukul has not been established or

incorporated in accordance with law.

29. While rendering the judgment in Indrawati Devi's

case (supra) on the principle laid down in Prof. Yashpal's

case, this Court failed to notice that the decision of the Apex

Court in Prof. Yashpal's case (supra), was in reference to

“degrees” conferred by Universities. In Prof. Yashpal's

case (supra), the Apex Court examined the meaning of the

word “University” as also the word “degree”. In paragraph

23

19, 20, 21 and 22 of the judgment in Prof Yashpal's case

(supra), the apex Court considered various definitions of

the word “University” as follows:-

“19. In Halsbury’s Laws of England (4th Edn., Reissue),

Vol. 15, what is a university and how it is incorporated is

described as under:

256. General.—A university is the whole body of teachers

and scholars engaged, at a particular place, in giving and

receiving instruction in the higher branches of learning;

such persons associated together as a society or

corporate body, with definite organization and

acknowledged powers and privileges (especially that of

conferring degrees), and forming an institution for the

promotion of education in the higher or more important

branches of learning; also, the colleges, buildings and

other property belonging to such a body. Although the

institutions to which it refers are readily identifiable,

precise and accurate definition is difficult. The essential

feature of a university seems to be that it was

incorporated as such by the sovereign power.

Other attributes of a university appear to be the

admission of students from all parts of the world, a

plurality of masters, the teaching of one at least of the

higher faculties, namely theology, law or philosophy

(which in some definitions are regarded as identical) and

medicine, provision for residence and the right to confer

degrees, but possession of these attributes will not make

an institution a university in the absence of any express

intention of the sovereign power to make it one. A

university involves the relation of tutor and pupil; it is

charged with the supervision and upbringing of the pupil

under tuition. Incorporation was anciently effected by

papal grant or charter, and later by royal charter or Act

of Parliament.

The practice adopted in the case of the most recent

foundations is to incorporate the university by royal

charter, to which there is annexed a schedule containing

the original statutes of the university, and thereafter to

obtain the passing of a local Act of Parliament vesting in

the university the property and liabilities of any

institution which it replaces and making other necessary

provisions.

A copy of any application for a charter for the foundation

of any college or university which is referred by the

Queen-in-Council for the report of a Committee of the

Privy Council must be laid before Parliament, together

with a copy of the draft charter, for not less than 30 days

before the Committee reports upon it.

20. In 15-A, American Jurisprudence 2d “ university”

24

has been defined as under:

1. Definitions.—Properly speaking, a “university” is an

aggregation or union of colleges. It is an institution in

which the education imparted is universal, embracing

many branches, such as the arts, sciences, and all

manner of higher learning, and which possesses the

power to confer degrees indicating proficiency in the

branches taught.

The word “college” has been said to be employed in the

United States to indicate an institution of learning,

having corporate powers, and possessing the right to

confer degrees, and which, with reference to its

educational work, consists of the trustees, teachers, and

scholars, all of whom make up the membership of the

college and represent its active work. The term “college”

may also be used to indicate a building, or group of

buildings, in which scholars are housed, fed, instructed,

and governed while qualifying for university degrees,

whether the university includes a number of colleges or a

single college. In a broad sense, the terms “college” and

“university” convey the same idea, differing only in

grade, with each indicating an institution of learning

consisting of trustees, teachers, and scholars as making

up its membership and representing its active work, or

an institution engaged in imparting knowledge to

resident students and possessing the right to confer

degrees.

21. In the footnote to this paragraph, reference is made

to a decision which has some kind of similarity with the

case in hand and the footnote reads as under:

A school offering correspondence courses in professional

and other educational subjects, sending students

textbooks and lessons to study, giving examinations

based thereon, and awarding diplomas or degrees, but

having no entrance requirements, resident students,

library, laboratory, or faculty, is not a university. Branch

v. Federal Trade Com. (CA7).

22. In The New Encyclopaedia Britannica (15th Edn.)

“university” has been described as under:

(p. 165) University, institution of higher education,

usually comprising a liberal arts and sciences college and

graduate and professional schools and having the

authority to confer degrees in various fields of study.

* * *

(p. 186) Universities and students looked toward ways

of creating opportunities for a satisfying career outside

traditional roles for graduates in scholarship, teaching,

and the professions. The university’s basic traditional

functions remain unchanged — enabling students to

learn from their cultural heritage, helping them to realize

their intellectual and creative abilities, and encouraging

25

them to become humane and responsible people. The

university expands knowledge across the entire spectrum

of disciplines, and it can add to the understanding and

enjoyment of life. It continues to be needed for

imaginative solutions to the problems of society.”

The various definitions examined above have a

common thread that is, a University is primarily concerned

with higher education and that it has a right to confer a

degree.

30.In paragraph No. 37 of the judgment in Prof.

Yashpal's case (supra) , the Apex Court examined the

meaning of the word “degree”, which does not find mention

in the UGC Act. Paragraph 37 of the judgment reads as

follows:-

“37. It is important to note that in view of Section 22

of UGC Act, the right of conferring or granting degree can

be exercised only by University or an institution deemed to

be University under Section 3 of the aforesaid Act or

institution especially empowered by an Act of Parliament to

confer or grant degrees. What is a "degree" and what it

connotes is not given in the UGC Act but the meaning of

the word as given in dictionaries and standard books is as

under :

Webster's Third New International Dictionary :

1. “a title conferred upon students by a college,

International Dictionary university, or professional school

upon completion of a unified programme of study carrying

a specified minimum of credits, passing of certain

examinations, and often completion of a thesis or other

independent research project.”

2. “a grade or class of membership attained in a

ritualistic order or society denoting a stage of proficiency

often after a set ordeal or examination.”

Wharton's Law Lexicon :

“the state of a person, as to be a barrister-at-law, or

to be a Bachelor or Master of Arts of a University.”

Chambers's Twentieth Century Dictionary :

26

“a mark of distinction conferred by universities,

Century Dictionary whether earned by examination or

granted as a mark of honour.”

P. Ramanatha Aiyar's Law Lexicon (2

nd

Edn.) :

“a mark of distinction conferred upon a student Law

Lexicon (2nd Ed) for proficiency in some art or science;

University diploma of specified proficiency.”

Encyclopedia Americana

"DEGREE" - the title conferred by a college or

university, signifying that a certain step or grade has been

attained in an area of learning. The award of a diploma

conferring the bachelor's degree marks completion of

undergraduate study. The master's and doctor's degrees

reward graduate study. Other degrees constitute evidence

of preparation for professional work ---- the M.D. (doctor

of medicine) for example.

In the 20th century, however, the M.A. is granted in

American universities and in those of England and the

Commonwealth of Nations (apart from Oxford and

Cambridge) on the basis of study beyond the B.A. and the

presentation (usually) of a thesis. An exception is

Scotland, where the M.A. has been the first degree

conferred in all six universities ever since their founding.

The bachelor of philosophy and bachelor of letters degrees

are given for work beyond the M.A.

The New Encyclopedia Britannica

"Degree" ----in education, any of several titles

conferred by colleges and universities to indicate the

extent of academic achievement. The hierarchy of degrees,

dating from the 13th century, once resembled the

medieval guild system. In the United States and Great

Britain, the modern gradation of academic degrees is

usually bachelor (or baccalaureate), master, and doctor.

With some exceptions, intermediate degrees, such as

those of bachelor and master, have been abandoned in the

universities of continental Europe.”

31.In paragraph 38 of the aforesaid judgment, the Apex

Court observed as follows:

“ A degree conferred by a university is a proof of the

fact that a person has studied a course of a particular

higher level and has successfully passed the examination

certifying his proficiency in the said subject of study to

such level. In the case of a doctorate degree, it certifies

that the holder of the degree has attained a high level of

knowledge and study in the subject concerned by doing

27

some original research work. A university degree confers a

kind of status upon a person like a graduate or a

postgraduate. Those who have done research work and

have obtained a PhD, DLitt or DSc degree become entitled

to write the word “Doctor” before their names and

command certain amount of respect in society as

educated and knowledgeable persons. That apart, the

principal advantage of holding a university degree is in the

matter of employment, where a minimum qualification like

a graduate, postgraduate or a professional degree from a

recognised institute is prescribed. Even for those who do

not want to take up a job and want to remain in a private

profession like a doctor or lawyer, registration with the

Medical Council or the Bar Council is necessary for which

purpose a degree in medicine or law, as the case may be,

from an institution recognised by the said bodies is

essential. An academic degree is, therefore, of great

significance and value for the holder thereof and goes a

long way in shaping his future. The interest of society also

requires that the holder of an academic degree must

possess the requisite proficiency and expertise in the

subject which the degree certifies.”

“28. Though incorporation of a University as a

legislative head is a State subject (Entry 32 List II) but

basically University is an institution for higher education

and research. Entry 66 of List I is coordination and

determination of standards in institutions for higher

education or research and scientific and technical

institutions.”

32.In paragraph 33, 34, 35 and 36 of the aforesaid

judgment, the Apex Court dealt with the object and purpose

of the UGC Act and observed as follows:-

“33. The consistent and settled view of this Court,

therefore, is that in spite of incorporation of Universities as

a legislative head being in the State List, the whole gamut

of the University which will include teaching, quality of

education being imparted, curriculum, standard of

examination and evaluation and also research activity being

carried on will not come within the purview of the State

legislature on account of a specific Entry on co- ordination

and determination of standards in institutions for higher

education or research and scientific and technical education

being in the Union List for which the Parliament alone is

competent. It is the responsibility of the Parliament to

ensure that proper standards are maintained in institutions

for higher education or research throughout the country and

also uniformity in standards is maintained.

28

34. In order to achieve the aforesaid purpose, the

Parliament has enacted the University Grants Commission

Act. First para of the Statement of Objects and Reasons of

the University Grants Commission Act, 1956 (for short "UGC

Act") is illustrative and consequently it is being reproduced

below :

"The Constitution of India vests Parliament with

exclusive authority in regard to 'co-ordination and

determination of standards in institutions for higher

education or research and scientific and technical

institutions'. It is obvious that neither co-ordination nor

determination of standards is possible unless the Central

Government has some voice in the determination of

standards of teaching and examination in Universities, both

old and new. It is also necessary to ensure that the

available resources are utilized to the best possible effect.

The problem has become more acute recently on account of

the tendency to multiply Universities. The need for a

properly constituted Commission for determining and

allocating to Universities funds made available by the

Central Government has also become more urgent on this

account.”

35. In the second para it is said that the Commission

will also have the power to recommend to any University

the measures necessary for the reform and improvement of

University education and to advise the University concerned

upon the action to be taken for the purpose of implementing

such recommendation. The Commission will act as an expert

body to advise the Central Government on problems

connected with the co- ordination of facilities and

maintenance of standards in Universities.

36. The preamble of the UGC Act says - an Act to

make provision for the coordination and determination of

standards in Universities and for that purpose to establish a

University Grants Commission. Section 2(f) of this Act

defines a University and it means a University established or

incorporated by or under a Central Act, a Provincial Act or a

State Act, and includes any such institution as may, in

consultation with the University concerned, be recognized

by the Commission in accordance with the Regulations

made in this behalf under this Act. Clause 12 provides that

it shall be the general duty of the Commission to take, in

consultation with the Universities or other bodies concerned,

all such steps as it may think fit for the promotion and co-

ordination of University education and determination and

maintenance of standards of teaching, examination and

research in Universities, and for the purpose of its functions

under the Act, the Commission may do all such acts

enumerated in sub-sections (a) to (j) thereof. Sections 22

and 23 are important and are being reproduced below :

29

“22. Right to confer degrees - (1) The right of

conferring or granting degree shall be exercised only by a

University established or incorporated by or under a Central

Act, a Provincial Act or a State Act or an institution deemed

to be a University under section 3 or an institution specially

empowered by an Act of Parliament to confer or grant

degrees.

(2) Save as provided in sub-section (1), no person or

authority shall confer, or grant, or hold himself or itself out

as entitled to confer or grant any degree.

(3) For the purpose of this section, "degree' means

any such degree as may, with the previous approval of the

Central Government, be specified in this behalf by the

Commission by notification in the Official Gazette.

23. Prohibition of the use of the word

"University" in certain cases. -- No institution, whether a

corporate body or not, other than a University established

or incorporated by or under a Central Act, a Provincial Act or

a State Act shall be entitled to have the word "University"

associated with its name in any manner whatsoever:

Provided that nothing in this section shall, for a period

of two years from the commencement of this Act, apply to

an institution which immediately before such

commencement, had the word "University" associated with

its name.”

33.In paragraph 39 of the said judgment, the Apex Court

observed as follows:

“Mere conferment of degree is not enough. What is

necessary is that the degree should be recognised. It is

for this purpose that the right to confer degree has been

given under Section 22 of the UGC Act only to a university

established or incorporated by or under a Central Act,

Provincial Act or State Act or an institution deemed to be

a university under Section 3 or an institution specially

empowered by an Act of Parliament to confer or grant

degrees. Sub-section (3) of this section provides that

“degree” means any such degree as may, with the

previous approval of the Central Government, be specified

in this behalf by the Commission by notification in the

Official Gazette. The value and importance of such

degrees which are recognised by the Government was

pointed out by a Constitution Bench in S. Azeez Basha v.

Union of India.”

34.From the aforesaid observations, it is clear that the

30

UGC is concerned with the coordination and determination of

standards in Universities and is entitled to take such steps

as it may think fit for the promotion and coordination of the

University education and determination and maintenance of

standards of teaching, examination and research in

Universities, and for the purpose of its functions under the

Act, the Commission may do all such acts as are

enumerated in Section 12 of the Act, 1956. What further

appears is that University is concerned with higher education

like graduate, post-graduate, doctorate and the like and is

entitled to confer degree on those levels. The UGC Act, 1956

does not relate to Secondary and Higher Secondary Level

Education. The power to legislate in respect of education, in

general, can be drawn from Entry 25 in List III-Concurrent

List of the Seventh Schedule, which provides as follows:-

“25. Education, including technical education,

medical education and universities, subject to the

provisions of entries 63, 64, 65 and 66 of List I; vocational

and technical training of labour.”

Entries 63, 64, 65 and 66 of List I -Union List of

Seventh Schedule provides as follows:-

“63. The institutions known at the commencement of

this Constitution as the Benaras Hindu University, the

Aligarh Muslim University and the Delhi University; the

University established in pursuance of Article 371E; any

other institution declared by Parliament by law to be an

institution of national importance.

64. Institutions for scientific or technical education

financed by the Government of India wholly or in part and

declared by Parliament by law to be institutions of national

importance.

65. Union agencies and institutions for—

(a) professional, vocational or technical training,

including the training of police officers; or

(b) the promotion of special studies or research; or

31

(c) scientific or technical assistance in the

investigation or detection of crime.”

66. Co-ordination and determination of standards in

institutions for higher education or research and scientific

and technical institutions.”

35.The U.P. Intermediate Education Act, 1921 provides for

establishment of a Board of High School and Intermediate

education. The preamble of the Act, 1921 provides as

follows:-

“Whereas it is expedient to establish a Board to

take the place of Allahabad University in regulating and

supervising the system of High School and Intermediate

Education in the United Provinces and to prescribe

courses therefor”

36.Section 7 of the Act, 1921, provides as follows:-

“Section 7. Powers of the Board :- Subject to the

provisions of this Act, the Board shall have the following

powers, namely, –

(1)to prescribe courses of instructions, text-books,

other books and instructional material, if any, for the High

School and Intermediate classes in such branches of

education as it thinks fit;

(1A)..........

(2)to grant diplomas or certificates to persons who---

(a) have pursued a course of study in an institution

admitted to the privileges of recognition by the Board, or

(b)are teachers, or

(c) have studied privately, under conditions laid down in

the Regulations, and have passed the examinations of the

Board under like conditions;

(3) …................

(4)to recognise institutions for the purposes of its

examinations;

(5)to admit candidates to its examinations;

(6) to (II)............

(12) to do all such other acts and things as may be requisite

in order to further the objects of the Board as a body

constituted for regulating and supervising High School and

Intermediate Education.”

32

37.Section 15 of the Act, 1921, provides as follows:-

“15. Power of Board to make Regulations :- (1)

The Board may make Regulations for the purpose of

carrying into effect the provisions of this Act.

(2) In particular and without prejudice to the

generality of the foregoing power the Board may make

Regulations providing for all or any of the following

matters, namely, :-

(a)....

(b) the conferment of diplomas and certificates;

(c) the conditions of recognitions of institutions for

the purpose of its examination;

(d) …....

(e) the conditions under which candidates shall be

admitted to the examinations of the Board and shall be

eligible for diplomas and certificates.”

38.A conspectus of the aforesaid provisions would reveal

that the Board is not concerned with conferment of degrees,

but it is concerned with grant of certificate and diplomas to

certain category of persons. Thus, it is manifestly clear that

the Board and the UGC operate in clearly distinct fields. One

relates to secondary and higher secondary level education

whereas the other relates to higher education. UGC Act,

1956 is concerned with the coordination and determination

of standards in universities and UGC is entitled to take such

steps as it may think fit for the promotion and coordination

of the university education and determination and

maintenance of standards of teaching, examination and

research in universities.

39.What we find from the record is that the U.P. Board, in

exercise of its power conferred by Section 15, vide Entry

No.30 in Regulation 2 of Chapter XIV of the Regulations

framed under the Act, 1921, provided equivalence to the

33

Adhikari Pariksha conducted by the Gurukul

Vishwavidhyalaya, Vrindavan with High School examination

for the purpose of admitting a candidate to its intermediate

level course provided the Adhikari Pariksha was underwent

in one year with English as one of the subjects. Such

recognition accorded to Adhikari Pariksha by the Board was

within its power conferred by Act, 1921 and is independent

of the status of Gurukul as a University. Conferment of

Adhikari Pariksha certificate does not amount to conferment

of a degree by a University, which relates to higher level

education and not to the secondary level education.

40.We, therefore, find that the judgment rendered in the

case of Indrawati Devi's case (supra) , which placed

reliance on apex court's decision in the case of Prof.

Yashpal's case (supra) , fails to notice the distinction

between two different levels of education. No doubt, a

degree conferred by Gurukul, as a University, for graduate,

post-graduate or higher level cannot be accorded recognition

unless Gurukul is conferred with the status of a University

within the meaning of Section 2(f) of the University Grants

Commission Act, 1956. However, its secondary level

examination such as “Adhikari Pariksha”, which has been

accorded equivalence with high school examination by the

Board, in exercise of its power conferred under the Act,

1921, cannot be set at naught merely by a notification of the

UGC declaring Gurukul Viswavidhyalaya, Vrindavan as a fake

University.

41.At this stage, it would be useful to notice that under

Section 23 of the UGC Act, there is a prohibition for any

34

institution, whether a corporate body or not, other than a

University established or incorporated by or under a Central

Act, a Provincial Act or a State Act, to have the word

“University” associated with its name in any manner

whatsoever. It might be so, as suggested by the learned

counsel for the petitioners, that because of this prohibition

“Gurukul” was put in the list of fake Universities as it was

using the word “Vishwavidyalaya” suffixed to its name.

However, we refrain from making any authoritative

pronouncement on that score in absence of any conclusive

material provided to us by the learned counsel appearing for

the UGC.

42.In Akansha Gautam's case (supra) , the learned

Single Judge of this Court had considered, in detail, the

provisions of UGC Act, 1956, the provisions of the U.P.

Intermediate Education Act and the Regulations framed

therein. It would be useful to reproduce paragraphs 20 to

23 of the judgment in Akansha Gautam's case , which are

as follows:-

“20. Learned counsel for the petitioners could not

place anything before this Court to show that GVV,

Vrindavan (Mathura) was established in a manner so as to

qualify definition of 'University' under Section 2(f) of 1956

Act. It is also not their case that it can be treated a

"Deemed University under Section 3 of 1956 Act nor it can

be said to be an institution specially conferred power to

grant or confer degree by an Act of Parliament. To this

extent virtually learned counsel for the petitioners could

not dispute that in these circumstances the University

Grant Commission has identified the aforesaid institution

a "fake university/institution" running in violation of

Section 22 of 1956 Act and therefore State of Uttar

Pradesh in furtherance thereof has taken action to stop

functioning of aforesaid institution as a University so as

not to cheat, mislead and misguide innocent young

students aspiring higher standard and legal education in

35

this country. The result would be that GVV, Vrindavan

(Mathura) was never a body authorized and entitled to

either run any degree and diploma course nor any such

degree or diploma awarded by it would be valid for any

purpose. This is what has been said by this Court also in

Surjeet Singh (supra), Ishrat Ali (supra) and Rita Rani

(supra). The Apex Court has said in Prof. Yashpal & Anr.

Vs. State of Chhattisgarh & Ors. (2005) 5 SCC 420 that a

degree does not mean a mere degree but it means the

degree which is recognized. Right to confer a degree has

been conferred on a University established or incorporated

or is considered to be a University under 1956 Act.

Section 22 of 1956 Act restricts right of conferment of

degree upon University or institutions entitled to do so

under the said Act. Thus, if a question would have arisen

as to whether a degree issued by GVV, Vrindavan

(Mathura) can be considered a valid degree or not, it

would have to be answered in negative to the extent it

offends provisions of 1956 Act relating to the level of

education governed by the said Act. The GVV, Vrindavan

(Mathura) is not a University under UGC Act, 1956.

21. However, in the present case, I am concerned

with "Adhikari Pariksha" which is an examination claimed

to be equivalent with High School Exam of U.P. Board.

The Secondary Education admittedly is not governed by

1956 Act but it is within the legislative competence of

State Legislature. In the State of U.P.; it is governed by

the provisions of 1921 Act. A person who has obtained

education upto Class 10, may seek admission in Class 11

i.e. Intermediate course duly recognized under 1921 Act.

Chapter 14 of Regulations provides for Intermediate

examination and Regulation 1 reads as under:

^^b.VjehfM;V ijh{kk esa izos'k ds fy;s ;k ijh{kk ds fy;s fu/kkZfjr

ikB~;dze dk v/;;u izkjEHk djus ls iwoZ izR;sd ijh{kkFkhZ dks ifj"kn dh gkbZLdwy

ijh{kk vFkok gkbZLdwy izkfof/kd ijh{kk vFkok fofu;e }kjk mlds ¼gkbZLdwy ijh{kk½

led{k ?kksf"kr ijh{kk esa mRrh.kZ gksuk vko';d gksxkA^^

"For entrance in Intermediate Examination or prior

to commencement of study of the syllabus prescribed for

the said examination, every candidate must have passed

the High School Examination or High School (Technical)

Examination of the Board or any examination declared by

the Regulations equivalent to it (High School

Examination)."

(English Translation by the Court)

22. For the benefit of students and public at large,

various examination, which have been declared equivalent

to High School examination of U.P. Board, Regulation 2

chapter 14 contains a list, and the relevant extract thereof

may be reproduced as under:

36

^^2- fuEufyf[kr ijh{kk;sa b.VjehfM,V ijh{kk ds fu/kkZfjr ikB~;dze ds

v/;;u ds fy;s ijh{kkfFkZ;ksa dks izos'k dk ik= cukus ds mn~ns'; ls ifj"kn dks

gkbZLdwy ijh{kk ds led{k ?kksf"kr dh tkrh gS&

1- Hkkjr esa fof/kor~ LFkkfir fdlh fo'ofo|ky; dh eSfVªD;wys'ku ijh{kk]

tks ijh"kn }kjk bl mn~ns'; ls ekU; gSA fuEufyf[kr fo'ofo|ky;ksa dh

eSfVªD;wys'ku ijh{kk;sa ifj"kn }kjk ekU; gSa&

bykgkckn] iatkc] cEcbZ] dydRrk] enzkl] cukjl vkSj vyhx<+A

izfrcU/k ;g gS fd cEcbZ fo'ofo|ky; ds lEcU/k esa ijh{kkFkhZ dks izR;sd

fo"k; esa 35 izfr'kr vadks ls vFkok izFke vFkok f}rh; Js.kh mRrh.kZ gksuk pkfg,A

KkrO;&cukjl fgUnw rFkk vyhx<+ eqfLye fo'ofo|ky;ksa dh eSSfVªD;wys'ku

ijh{kk dk rkRi;Z izFke dh izos'k ijh{kk rFkk f}rh; dh gkbZLdwy ijh{kk ls gSA

2- mRrj izns'k vFkok fdlh vU; jkT; dk gkbZLdwy yhfoax lVhZfQdsV

ijh{kk bl izfrcU/k ds lkFk fd ;g ijh{kk ml jkT; esa fof/kor LFkkfir fo'ofo|

ky; }kjk eSSfVªD;wys'ku ds led{k Lohdkj dh tkrh gSA

3-dSfEczt Ldwy lVhZfQdsV ¼tks igys lhfu;j yksdy dgykrh Fkh½

ijh{kk;sa

4-phQ dkystksa dh fMIyksek ijh{kk]

5-e/; izns'k rFkk vU; jkT;ksa esa ;wjksfi;u Ldwyksa dh gkbZLdwy

ijh{kkA

6-e/; izns'k ds gkbZLdwy] f'k{kk ifj"kn dh gkbZLdwy lVhZfQdsV

ijh{kk]

7-gkbZLdwy Qkbuy eSfVªD;wys'ku ijh{kk ifj"kn oekZ }kjk lapkfyr

gkbZLdwy Qkbuy rFkk eSfVªD;wys'ku ijh{kk tks igys oekZ dh ,axyks oukZD;wyj

gkbZLdwy rFkk baxfy'k gkbZLdwy ijh{kk dgykrh FkhA

KkrO;&mu Hkkjrh; fo|kfFkZ;ksa ds lEcU/k esa] tks oekZ ls fu"dkUr gS] jaxwu

fo'ofo|ky; dh eSfVªD;wys'ku ijh{kk esa oekZ ds vfrfjDr vU; fo"k;ksa esa mRrh.kZ

ijh{kkfFkZ;ksa] ftUgksus vyx&vyx fo"k;ksa esa U;ure vad rFkk oekZ ds vfrfjDr

leLr fo"k;ksa esa okafNr U;wure ;ksxkad izkIr fd;s gS] b.VjehfM,V ijh{kk esa izos'k

ds ik= le>s tkrs gSA

8-yUnu fo'ofo|ky; dh eSfVªD;wys'ku ijh{kk]

9-V~koudksj jkT; dh gkbZLdwy yhfoax lVhZfQdsV ijh{kk]

10-gSnjkckn ¼nfD[ku½ dh gkbZLdwy yhfoax lVhZfQdsV ijh{kk] bl

izfrcU/k ds lkFk fd ijh{kkFkhZ izFke vFkok f}rh; Js.kh esa mRrh.kZ gqvk gS]

11-eSlwj dh lsdsUM~jh Ldwy yhfoax lVhZfQdsV ijh{kk bl izfrcU/k ds

lkFk fd ijh{kkFkhZ fo'ofo|ky; ikB~;dze esa izos'k dk ik= ?kksf"kr gqvk gS]

12-jk"V~h; bf.M;u fefyVjh dkyst] nsgjknwu ¼tks igys lSfud Ldwy

nsgjknwu rFkk ekSfyd :i ls jk;y bf.M;u fefyVjh dkyst dgykrk Fkk½ dh

fMIyksek ijh{kk]

13-----------

14-lsUVªy cksMZ vkQ lsdsUMjh ,tsdw'ku] vtesj tks igys cksMZ vkQ

gkbZLdwy ,.M] bUVjehfM;V ,twds'ku] jktiwrkuk ftlesa vtesj] ekjokM Hkh

lfEefyr Fks] e/; Hkkjr vkSj Xokfy;j] vtesj dgykrk Fkk rFkk ckn esa ftldk

uke cksMZ vkQ gkbZLdwy ,UM bUVjehfM;V ,twds'ku] vtesj] Hkksiky vkSj foU/;

izns'k vtesj] j[kk x;k dh gkbZLdwy dh ijh{kk

37

15-Hkkjrh; ukS lsuk dk gk;j ,twds'kuy VsLV tks igys ^^bf.M;u

ekdsZUVkby eSfju Vªsfuax f'ki MQfju^^ dk MQfju QkbZuy ikflax vkmV

bXtkeus'ku vf/k'kklh vFkok vfHk;U=.k dSMsVksa ds fy, dgykrk Fkk]

16-dksphu jkT; dh lsdsUMªh Ldwy yhfoax lkfVZfQdsV ijh{kk bl

izfrcU/k ds lkFk fd lkfVZfQdsV izkIr drkZ enzkl fo'ofo|ky; }kjk fo'ofo|ky;

ds v/;;u ds ikB~;dze esa izos'k dk ik= ?kksf"kr gqvk gSA

17-us'kuy ;wfuoflZVh vk;jyS.M dh eSfVªD;wys'ku dh ijh{kk bl

izfrcU/k ds lkFk fd ijh{kkFkhZ izFke vFkok f}rh; Js.kh esa mRrh.kZ gqvk gSA

18-mLekfu;k fo'ofo|ky;] gSnjkckn ¼nfD[ku½ dh eSfVªD;wys'ku

ijh{kk bl izfrcU/k ds lkFk fd ijh{kkFkhZ izFke vFkok f}rh; Js.kh esa mRrh.kZ gqvk

gS]

19-cksMZ vkQ b.VjehfM;V ,.M lsdsUMjh ,twds'ku

20-usiky 'kklu }kjk lapkfyr Ldwy yhfoax lkfVZfQdsV ijh{kk]

21-eSupsLVj] yhojiqy] ykMZl] 'kSfQYM rFkk cjfya?ke fo'ofo|ky;

ds la;qDr cksMZ dh gkbZLdwy lkfVZfQdsV ijh{kk bl izfrcU/k ds lkFk fd ijh{kkFkhZ

us ijh{kk] vaxszth] xf.kr] bfrgkl vFkok Hkwxksy rFkk nks vU; fo"k;ksa esa mRrh.kZ dh

gS] tks ek/;fed f'k{kk ifj"kn mRrj izns'k }kjk gkbZLdwy ijh{kk ds fy, Lohd`r gSA

22-la;qDr eSfVªD;wys'ku cksMZ fizaVkfj;k nf{k.k dh eSfVªD;wys'ku dh

ijh{kk]

23-cksMZ vkQ lsdsUMjh ,twds'ku gSnjkckn dh gk;j ldsUMªh

lkfVZfQdsV ijh{kk bl izfrcU/k ds lkFk fd ijh{kkFkhZ ,d iz;Ru esa mRrh.kZ gqvk gS

vkSj mlus ijh{kk esa lEiw.kZ ;ksxkad ds de ls de 35 izfr'kr vad izkIr fd;s gS

rFkk og mLekfu;k fo'ofo|ky; dh gSnjkckn dh iwoZ fo'ofo|ky; ----------- esa

izos'k dk ik= gS]

24-mRdy fo'ofo|ky; dh eSfVªD;wys'ku ijh{kk]

25-izeq[k ,;j dSQV'kueSu ds fy, iquoxhZdj.k gsrq vkbZ-,-,y-

,twds'kuy VSLV]

26-Hkkjrh; lsuk dk Lis'ky lkfVZfQdsV vkQ ,twds'ku

27-lu~ 1946 bZ0 ls ebZ 1964 bZ0 rd dh iz;kx efgyk fo|kihV }

kjk lapkfyr fo|k fouksnuh ¼eSfVªD;wys'ku½ ijh{kk bl izfrcU/k ds lkFk fd og

,Mokal vaxzsth oSdfYid fo"k; ds lkFk mRrh.kZ dh x;h gks rFkk iw.kZ ijh{kk ,d

lkFk vFkok ,d nwljs ls nks o"kksZa ds chp ¼nks ls vf/kd [k.Mksa esa ugh½ mRrh.kZ dh

xbZ gks]

iqu'p&iz;kx efgyk fo|kihB ds nkjkxat] bykgkckn rFkk 106 ghosV jksM

bykgkckn fLFkr dk;kZy;ksa ls iznRr izek.k &i= Lohdkj fd;s tk;sxsA

28-yadk dh lhfu;j Ldwy lkfVZfQdsV ijh{kk] ftldk ckn esa uke

tujy lkfVZfQdsV vkQ ,twds'ku ¼vkfMZujh ----½ ijh{kk yadk j[k x;k gSA

29-cksMZ vkQ gk;j lsdsUMh ,twds'ku] fnYyh dh gk;j lsdsUMh ijh{kk

¼,d o"khZ; vFkok rhu o"khZ; ikB~;dze½

30-xq:dwy fo'ofo|ky;] o`Unkou }kjk lapkfyr vaxzsth ds lkFk

vf/kdkjh ijh{kk] tks ,d ls vf/kd o"kZ esa [k.Mksa esa mRrh.kZ u dh xbZ gks] -------^^

23. Besides above, Clause 2-A, Chapter 14 of

Regulations contemplates certain examination conducted

by institutions privately managed which are not governed

38

by any statute or charter but satisfy the requirement with

respect to recognition as laid down therein and it reads as

under:

^^2d&uhps fy[kh gqbZ 'krsZ mu O;fDrxr :i ls O;ofLFkr laLFkkvksa ij

ykxw gksxh] tks fdlh vf/kfu;e vFkok pkVZj ds vUrxZr vfuok;Z 'krZ ds :i esa

ugh py jgh gSA ;s 'krsZ muds }kjk lapkfyr ijh{kkvksa dh ifj"kn dh gkbZLdwy

ijh{kk ds led{k fofu;e 2] v/;k; 14 ds vUrxZr ekU;rk nsus ds mn~ns'; ls

ykxw gksxh%&

1-ifj"kn dk ,d izfrfuf/k ml izkf/kdkj esa gksxk] tks ijh{kk ds fy,

v/;;u ds fu/kkZfjr ikB~;dze dk vuqeksnu djrk gSA

2-og laLFkk vius ijh{kk dsUnzksa dh ifj"kn ds izfrfuf/k }kjk fujhf{kr

fd;s tkus dh vuqefr nsxh]

3-og laLFkk ifj"kn ds izfrfuf/k;ksa dks ifj"kn ds fu;eksa ds

vuqlkj ;k=k ,oa nSfud HkRrk nsxhA

;s 'krsZ mu leLr laLFkkvksa ij ykxw gksxh tks ifj"kn }kjk ekU;rk izkIr

djus ds fy, vkosnu i= nsrh gS rFkk mu fudk;ksa ds fy, Hkh] ftudh ijh{kk;sa

bl v/;k; ds fofu;e 2 (30) rFkk 2 (33) ds vUrxZr ifj"kn }kjk mldh

gkbZLdwy ijh{kk ds led{k ekU; gSA^^

43. After examining the aforesaid provisions/ regulations

in detail the learned single judge went on to observe/ hold

as follows:-

“24. The list, extract whereof has been referred to

hereinabove, would show that besides matriculation

examinations conducted by certain Universities

established by law, it also recognises certain courses,

examination whereof is conducted by the institutions

which are not Universities established by law but are

bodies like Societies or others institutions. It also

recognises private institutions and bodies with certain

conditions. Therefore, for the purposes of High School

Examination conducted by U.P. Board, recognition as

equivalent course has been given not only to the

equivalent courses run by Universities established by law

but also to the Societies and other bodies including certain

private bodies.

25. A perusal of aforesaid list would show that

Adhikari Examination of GVV, Vrindavan (Mathura) was

recognized separately without including it along with

category of Universities established in the country

conducting matriculation examination and others. But

various courses recognized therein is equivalent to high

school examination of U.P. Board are bodies which either

satisfy the term 'University' under 1956 Act or bodies

established under some charter of concerned provincial

39

government. Those bodies who do not fulfill the said

requirement but are private, in respect thereto also a

separate provision was made in chapter 14 Regulation 2-

A.

26. It appear that at the time when Adhikari

Pariksha of GVV, Vrindavan (Mathura) was included in the

list of recognized institution, Board treated GVV,

Vrindavan (Mathura) to be a University governed by

provisions of 1956 Act and therefore the same was

included therein. It is for this reason when Government of

India acting upon identification made by UGC declared

GVV, Vrindavan (Mathura) as a fake university, the

consequential exclusion of GVV, Vrindavan (Mathura)

Adhikari Pariksha from the Regulation underwent with the

U.P. Board. The said declaration and existing Regulation

has not wiped out the examination already conducted by

GVV, Vrindavan (Mathura) up to 2008. Earlier Adhikari

Pariksha without any restriction of time was recognized as

equivalent to High School of U.P. Board but after

amendment made vide notification dated 08.09.2008,

Regulation, as it stand today, it continue to recognise

Adhikari Pariksha conducted by GVV, Vrindavan (Mathura)

but now it is confined upto 2008 and not beyond that. The

validity of this Regulation, as it stand today, has not been

disputed or assailed by anyone.

27. The Regulation, as it stood prior to 2008 or

thereafter, gives a clear impression to all that U.P. Board

still reconises Adhikari Pariksha conducted by GVV,

Vrindavan (Mathura) upto 2008 as a valid qualification

equivalent to High School Examination of U.P. Board. It

cannot be controverted that in the aforesaid scenario a

very large number of candidates must have appeared till

2008 in Adhikahri Pariksha conducted by GVV, Vrindavan

(Mathura) and have passed the same. For giving

admission in Intermediate course of U.P. Board the

aforesaid examination i.e. Adhikari Pariksha upto 2008

conducted by GVV, Vrindavan (Mathura) is still a valid

qualification and learned Standing Counsel could not

dispute that for giving admission in Intermediate Course,

there is no bar or disqualification for such candidates. The

recognition vis a vis equivalence up to High School

Examination to Adhikari Pariksha as such does not depend

upon the status of the institution in question namely GVV,

Vrindavan (Mathura) to be a University or not since such

equivalence under the list, as aforesaid, is available to

various examination bodies other than Universities under

UGC Act, 1956. This is very clear and evident.

28. That being so, the mere fact that GVV,

Vrindavan (Mathura) is not a University under U.G.C. Act,

1956 can it be said that Adhikari Pariksha, which is a

40

course in respect to Secondary Education would have any

adverse effect particularly when there is no complete de-

recognition by U.P. Board in respect to its equivalence

with High School Examination conducted by U.P. Board.

The answer would be 'No'. Even otherwise, this Court find

it appropriate to stick to this interpretation for the reason

that a huge number of candidates founded on Adhikari

Pariksha have obtained higher education from various

institutions including U.P. Board and various Universities.

Any decision otherwise would wipe out all these

qualifications earned by these students for no fault on

their part. Such a drastic consequence can be save

particularly when there is no compulsion to take such a

view.”

44.On careful examination of the various provisions

noticed by the learned single judge in Akansha Gautam's

case, which have not been disputed by the learned counsel

for the parties, we find ourselves in complete agreement

with the view taken by the learned Single Judge, and we

adopt the same.

45.In view of the discussion made herein above we are of

the view that the decision of the division bench in Special

Appeal No.1990 of 2011 dated 13.10.2011 (Indrawati

Devi v. State of U.P. and others ) does not lay down the

correct law. The law laid down in Akanksha Gautam's

case is hereby approved.

46.However, another ancillary question has cropped up for

our consideration. That is, as to what would be the effect of

revocation of Entry No. 30 in Regulation 2 of Chapter XIV of

the Regulations framed under the U.P. Intermediate

Education Act, 1921, vide notification dated 10

th

May, 2013

of the Board, with the sanction of the State Government

accorded under Section 16(2) of the Act, 1921.

47.Before we proceed to answer the above question, it

41

would be useful to first examine as to what would be the

effect of such revocation if we assign retrospective effect to

the same that is, as if, the Entry No.30 in Regulation 2 of

Chapter XIV of the Regulations framed under the Act, 1921

never existed. Ordinarily, a high school level examination is

not the end of scholastic pursuits. In fact, it is the beginning

of a series of examinations which a person undergoes to

attain eligibility for entry in various categories of service/

profession, etc. It is a foundational qualification on which the

superstructure of various higher qualifications including

technical and professional qualifications are built. Therefore,

if it is held that revocation of Entry No.30 in the Regulations

would mean that “Adhikari Pariksha” was never treated as

equivalent to a high school level examination, the entire

superstructure of higher qualifications attained by a person

based on that foundational qualification would crumble

resulting in catastrophic effect on the life and careers of

thousands of innocent persons who underwent the same and

have obtained various higher qualifications, job, etc. based

on that foundational qualification.

48.In State of Tamil Nadu & others V. M.

Sheshachalam & others: (2011) 12 SCC 641 , the apex

court observed that while making amendments to principal

or subordinate legislation either by executive decisions or by

legislative Act paramount consideration should be of the

persons who are going to be affected by such amendment.

In other words, legislative impact is one aspect which always

should be examined by the Government concerned before it

takes any decision which is likely to affect a larger section of

42

the society.

49.In Tariq Islam v. Aligarh Muslim University:

(2001) 8 SCC 546 , the apex court, observed that

equivalence of qualification has to be determined before a

person is allowed to undergo a course because to nullify the

equivalence accorded once would be to put the clock back

causing grave injustice to the person concerned, inasmuch

as, had he been denied admission on the ground that his

qualification is not equivalent to the qualification

determining eligibility, he might have obtained an equivalent

qualification or pursued his studies elsewhere. The relevant

observations of the apex court are in paragraph 8 of the

judgment, as follows:

“......Equivalence of qualification has to be determined

before a person is allowed to undergo a course. When the

appellant as a result of such admission obtained such high

qualifications as MPhil/PhD, it is difficult to imagine that

the equivalence of qualification obtained by him earlier

was not considered by the University. After having

obtained such degrees, to nullify the equivalence declared

by the Academic Council and the Vice-Chancellor will be to

put the clock back causing grave injustice to the

appellant. Had he been denied admission on the ground

that his qualification is not equivalent to Master’s degree,

he might have obtained an equivalent qualification or

pursued his studies elsewhere. That opportunity having

been deprived to him and his admission to such courses

having been ratified based on the recommendations of the

Equivalence Committee, it cannot be nullified in the

manner it has been done.”

50.In State of Orissa & another v. Bhupendra Kumar

Bose & others, AIR 1962 SC 945 , a Constitution Bench

comprising of five judges of the apex court while dealing

with the effect of expiration of a temporary statute held that

if the right created by the Statute is of an enduring

character and has vested in the person, that right cannot be

43

taken away because the statute by which it was created has

expired. It would be useful to reproduce paragraph 21 of

the report, which reads as follows:-

“ In our opinion, it would not be reasonable to hold that

the general rule about the effect of the expiration of a

temporary Act on which Mr Chetty relies is inflexible and

admits of no exceptions. It is true for instance that

offences committed against temporary Acts must be

prosecuted and punished before the Act expires. If a

prosecution has not ended before that day, as a result

of the termination of the Act, it will ipso facto terminate.

But is that an inflexible and universal rule? In our

opinion, what the effect of the expiration of a temporary

Act would be must depend upon the nature of the right

or obligation resulting from the provisions of the

temporary Act and upon their character whether the

said right and liability are enduring or not. As observed

by Parker, B. in the case of Steavenson v. Oliver:“there

is a difference between temporary statutes and statutes

which are repealed; the latter (except so far as they

relate to transactions already completed under them)

become as if they had never existed; but with respect to

the former, the extent of the restrictions imposed, and

the duration of the provisions, are matters of

construction”. In this connection, it would be useful and

interesting to consider the decision in the case of

Steavanson itself. That case related to 6th Geo. 4, c.

133, Section 4 which provided that every person who

held a commission or warrant as surgeon or assistant

surgeon in His Majesty's navy or army, should be

entitled to practise as an apothecary without having

passed the usual examination. The statute itself was

temporary and it expired on 1-8-1826. It was urged

that a person who was entitled to practise as an

apothecary under the Act would lose his right after 1-8-

1826 because there was no saving provision in the

statute and its expiration would bring to an end all the

rights and liabilities created by it. The Court rejected

this contention and held that the person who had

acquired a right to practise as an apothecary, without

having passed the usual examination, by virtue of the

provision of the temporary Act, would not be deprived

of his right after its expiration. In dealing with the

question about the effect of the expiration of the

temporary statute, Lord Abinger, C.B. observed that “it

is by no means a consequence of an act of Parliament's

expiring, that rights acquired under it should likewise

expire. Take the case of a penalty imposed by an act of

Parliament, would not a person who had been guilty of

44

the offence upon which the legislature had imposed the

penalty while the Act was in force, be liable to pay it

after its expiration? The case of a right acquired under

the Act is stronger. The 6 Geo. 4, c. 133, provides that

parties who hold such warrants shall be entitled to

practise as apothecaries; and we cannot engraft on the

statute a new qualification, limiting that enactment”. It

is in support of the same conclusion that Parker, B.

made the observations which we have already cited.

“We must look at this act, observed Parker, B., and see

whether the restriction in the 11th clause, that the

provisions of the statute are only to last for a limited

time, is applicable to this privilege, in question. It

seems to me that the meaning of the legislature was

that all assistant surgeons, who were such before 1-8-

1826, should be entitled to the same privileges of

practising as apothecaries, as if they had been in actual

practice as such on 1-8-1815, and that their privilege as

such was of an executory nature, capable of being

carried into effect after 1-8-1826.” Take the case of a

penalty imposed by a temporary statute for offences

created by it. If a person is tried and convicted under

the relevant provisions of the temporary statute and

sentenced to undergo imprisonment, could it be said

that as soon as the temporary statute expires by efflux

of time, the detention of the offender in jail by virtue of

the order of sentence imposed upon him would cease to

be valid and legal? In our opinion, the answer to this

question has to be in the negative. Therefore, in

considering the effect of the expiration of a temporary

statute, it would be unsafe to lay down any inflexible

rule. If the right created by the statute is of an

enduring character and has vested in the person,

that right cannot be taken away because the

statute by which it was created has expired. If a

penality had been incurred under the statute and had

been imposed upon a person, the imposition of the

penalty would survive the expiration of the statute. That

appears to be the true legal position in the matter.”

51.In the case of S.L. Srinivasa Jute Twine Mills (P)

Ltd. v. Union of India & Another: (2006) 2 SCC 740 ,

the apex court was required to adjudicate on the effect of

omission of clause (d) in section 16(1) of the Employees'

Provident Fund Misc. Provisions Act, 1952. By clause (d)

protection from operation of the provisions of the Act was

provided to newly set up establishment for a period of three

45

years from the date on which such establishment was set

up. By Ordinance, which was followed by amending Act,

clause (d) was omitted with effect from 22.09.1997. A

question, therefore, arose as to what would be the effect of

such omission on those establishments that have not

completed three years infancy period and were accorded

protection under the then existing clause (d). The apex court

after a considering a number of precedents took the view

that regardless of the omission of clause (d) from the

statute, the right under the then existing clause (d) had

accrued on the newly set up establishments and they were

entitled to protection for the full period of infancy. While

holding as above, the apex court in paragraph 18 of the

report, observed as follows:

“It is a cardinal principle of construction that every statute

is prima facie prospective unless it is expressly or by

necessary implication made to have retrospective

operation. (See Keshavan Madhava Menon v. State of

Bombay.) But the rule in general is applicable where the

object of the statute is to affect vested rights or to impose

new burdens or to impair existing obligations. Unless there

are words in the statute sufficient to show the intention of

the legislature to affect existing rights, it is deemed to be

prospective only nova constitutio futuris formam imponere

debet, non praeteritis. In the words of Lord Blanesburgh,

“provisions which touch a right in existence at the passing

of the statute are not to be applied retrospectively in the

absence of express enactment or necessary intendment”

(see Delhi Cloth & General Mills Co. Ltd. v. CIT).

“Every statute, it has been said”, observed Lopes, L.J.,

“which takes away or impairs vested rights acquired under

existing laws, or creates a new obligation or imposes a

new duty, or attaches a new disability in respect of

transactions already past, must be presumed to be

intended not to have a retrospective effect.” (See

Amireddi Rajagopala Rao v. Amireddi Sitharamamma.)

As a logical corollary of the general rule, that retrospective

operation is not taken to be intended unless that intention

is manifested by express words or necessary implication,

there is a subordinate rule to the effect that a statute or a

46

section in it is not to be construed so as to have larger

retrospective operation than its language renders

necessary. (See Reid v. Reid.) In other words, close

attention must be paid to the language of the statutory

provision for determining the scope of the retrospectivity

intended by Parliament. (See Union of India v. Raghubir

Singh.) The above position has been highlighted in

Principles of Statutory Interpretation by Justice G.P.

Singh. (10th Edn., 2006 at pp. 474 and 475.)”

52.Likewise, in the case of State of Andhra Pradesh v.

CH Gandhi: (2013) 5 SCC 111 , the apex court, in

paragraph 27 of the report, while dealing with the effect of

substitution of a Rule observed that the provision which is

substituted by the amending Rules, does not obliterate the

rights of the parties as if they never existed. While holding

as above, the apex court, in paragraph 23 cited with

approval Maxwell on the interpretation of Statutes, 12

th

Edn., wherein it has been stated thus:

“Perhaps no rule of construction is more firmly

established than thus - 'that a retrospective operation is

not to be given to a statute so as to impair an existing

right or obligation, otherwise than as regards matters of

procedure, unless that effect cannot be avoided without

doing violence to the language of the enactment. If the

enactment is expressed in language which is fairly capable

of either interpretation, it ought to be construed as

prospective only'. The rule has, in fact, two aspects, for it,

'involves another and subordinate rule, to the effect that a

statute is not to be construed so as to have greater

retrospective operation than its language renders

necessary.”

53.In the instant case, the revocation of the Entry No.30

from Regulation 2 of Chapter XIV was made in deference to

the order of this court in Indrawati Devi's case (supra) .

From the document enclosed with the compilation, as has

been noticed by us in paragraph 27 herein above, it does not

appear that the Board carried out any independent exercise

to ascertain that Gurukul, as an institution imparting

47

education up to the secondary level, for which it had been

accorded recognition, never existed. No material has been

brought on record to suggest that Gurukul was a bogus or a

fictitious institution. Thus, in view of the law noticed herein

above, providing retrospectivity to the amendment in the

Regulations would be completely unjustified inasmuch as the

equivalence earlier accorded to “Adhikari Pariksha”, up to

the year 2008, by the U.P. Board, in exercise of its power

under section 15 read with section 7 of the Act, 1921, has

conferred rights of enduring character on persons who

pursued the course and obtained such certificates, and such

right having vested in them cannot be extinguished by mere

deletion of Entry No.30 from Regulation 2 of Chapter XIV of

the Regulations framed under the Act, 1921, particularly, in

absence of any statutory intendment to make it applicable

from retrospective effect. Providing retrospectivity to such

an amendment would play havoc with the life and career of

innumerable persons who, on the strength of Adhikari

Pariksha certificate, have pursued and obtained higher

qualifications.

54.In view of the discussion made above, we answer the

reference thus:

(a) Adhikari Pariksha Certificate issued by the Gurukul

Viswavidyalaya, Vrindavan, Mathura, up to the year 2008

i.e. till it was recognized by the U.P. Board of High School

and Intermediate Education as equivalent to High School,

obtained with English as one of the subject, and passed in

one year, is a valid qualification equivalent to High School,

regardless of Gurukul having been declared a fake University

48

by the UGC.

(b) The decision of the division bench in Special Appeal

No. 1990 of 2011 dated 13.10.2011 ( Indrawati Devi v.

State of U.P. and others), which holds that “Adhikari

Pariksha” certificate obtained from Gurukul Viswavidyalaya,

Vrindavan, Mathura cannot be held to be a valid degree,

does not lay down the correct law.

Let the papers of this writ petition be placed before the

appropriate Court for further orders.

Order Date :-09.10.2013

Sunil Kr Tiwari

( Satya Poot Mehrotra, J. )

(Sanjay Misra, J.)

(Manoj Misra, J.)