Allahabad High Court
Smt. Rinki vs State Of U.P. Thru Prin.Secy. Higher ... on 18 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1875, 2020 (1) ALJ 678, (2019) 10 ADJ 631 (ALL), (2019) 4 ESC 1845
Bench: Anil Kumar, Devendra Kumar Upadhyaya, Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Reserved Case :- MISC. SINGLE No. - 35387 of 2018 Petitioner :- Smt. Rinki Respondent :- State Of U.P. Thru Prin.Secy. Higher Edu. Lko. & Ors. Counsel for Petitioner :- Satya Prakash Mishra Counsel for Respondent :- C.S.C.,Subhas Bisaria,W.U. Ahmad Hon'ble Anil Kumar,J. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Abdul Moin,J.
(Per D.K.Upadhyaya,J) This case concerns itself with the sanctity of admissions made by certain colleges in B.Ed course in the academic session 2013-2014 after 16.09.2013 and holding of examination of such students and declaration of their results. Hon'ble Single Judge in this case finding himself unable to agree with the judgment rendered on 03.12.2018 in a bunch of writ petitions, leading writ petition being Ankit Kumar and others vs. State of U.P. and others (hereinafter referred to as ''Ankit Kumar'), vide order dated 17.12.2018 has referred the following two questions for consideration by a larger bench.
"(i). Whether it was open for the State Government or this Court to have relaxed the time schedule fixed under the orders of the Apex Court in College of Professional Education (Supra), as reiterated and re-inforced in Maa Vaishno Devi Mahila Mahavidyalaya (Supra), as also the order dated 25.11.2013 passed in I.A. No. 109 and 110 of 2013 in College of Professional Education, fixing 16th September, 2013, by permitting/directing declaration of results of students admitted in B.Ed Course in the Academic Session 2013-14 after 16.09.2013? (ii). Whether the instructions of the State Government dated 28th November, 2018 could be acted upon or that it amounts to an act in disobedience/derogation of the orders of the Apex Court, referred to above, rendering the responsible officers of the State liable to be proceeded with under contempt jurisdiction, in view of the observations contained in para 90.2 of the Supreme Court judgment in Maa Vaishno Devi Mahila Mahavidyalaya (supra)."
This larger bench has thus assembled to consider the aforesaid reference. This petition by Smt Rinki has been filed with the prayer to issue a direction to the authorities of Chaudhary Charan Singh University, Meerut to declare her result of B.Ed examination for the academic session 2013-2014 in light of her admission made to the aforesaid course in pursuance of Government Orders dated 26.09.2013 and 08.10.2013. Before dealing with the issues involved in this reference, the facts and circumstances which led the State Government to issue Government Orders dated 26.09.2013 and 08.10.2013, are necessary to be noticed. For making admissions to B.Ed course in various Universities and the Colleges affiliated/associated with them in the State of U.P. for the academic session 2013-2014, a ''Joint Entrance Examination B.Ed 2013' was held by Deen Dayal Upadhyaya Gorakhpur University, Gorakhpur which was nominated as the Nodal University. On the basis of said Joint Entrance Examination, counselling of successful candidates for being given admission in various institutions was held between 01.06.2013 to 27.06.2013. After this counselling, a pooled counselling was held, however, even after the pooled counselling, around 50,000 seats remained vacant and accordingly to fill up these 50,000 seats, another pooled counselling was held between 04.08.2013 to 29.08.2013. Even after second pooled counselling, 34294 seats remained vacant. The State Government thus considered the situation which arose on account of 34924 seats remaining vacant and for the said purpose, a high level meeting chaired by the Principal Secretary of the State Government in the Department of Higher Education was held on 25.09.2013 which was attended to by the Special Secretary, Department of Higher Education, Registrar of the Nodal University i.e. the Gorakhpur University, Deputy Registrar and the State Nodal Officer, Joint Entrance Examination B.Ed-2013, Deen Dayal Upadhyaya Gorakhpur University, Gorakhpur. The order dated 26.09.2013 was thus issued by the State Government on the basis of deliberations held and decisions taken in the said meeting. As a matter of fact, the said order dated 26.09.2013 issued by the State Government is the minutes of meeting held on 25.09.2013. Perusal of the said Government Order dated 26.09.2013 reveals that while taking decision to meet the exigency which arose on account of unfilled 34294 seats, the Committee referred to the judgment of Hon'ble Supreme Court, dated 22.07.2011 passed in Special Leave to Appeal (Civil) No.13040 of 2010, College of Professional Education and others vs. State of U.P. and others, reported in 2013 (2) SCC 721. The State Government is thus said to have taken note of paragraph 4 (vi) (b) of the judgment in the case of College of Professional Education and others (supra) and decided in the meeting held on 25.09.2013 that a list of candidates, on the basis of their merit who appeared in Joint Entrance Examination and were not admitted, be sent to all self-financed B.Ed institutions and further that institutions shall then admit the students from the said list after inviting applications through advertisement to be published in newspapers, in accordance with the ranking of the candidates in the merit. The State Government also decided vide Government Order dated 26.09.2013 that last date for completing the process will be 15.10.2013. Pursuant to the said Government order dated 26.09.2013, the State Government issued another Government Order dated 08.10.2013 directing the Nodal University that admissions to B.Ed course shall be made only in accordance with the merit of the candidates as per the list to be provided by the Nodal University to the institutions and that the seats on which allotment of students could not be made on the basis of counselling, shall be treated to be vacant and further that the seats against which candidates do not take admission till 12.10.2013 shall also be treated to be vacant. Assertion made by the petitioner in this case is that she was admitted on the basis of the process decided and implemented by the State Government in terms of the Government Orders dated 26.09.2013 and 08.10.2013 and thus her admission is lawful and accordingly she is entitled not only to take admission in B.Ed course but also for declaration of her result. Reference made to this bench thus revolves around the time schedule fixed by Hon'ble Supreme Court in its judgment and order dated 22.07.2011 in the case of College of Professional Education and others (supra). Paragraph 4 of the said judgment contains a schedule which is based on broad consensus regarding procedure of admission between the institutions and the State Government. Paragraph 4 of the said judgment is thus extracted hereinbelow:-
"4. In regard to admissions for academic sessions 2012- 2013 and subsequent academic years, the institutions and the state government have arrived at a broad consensus regarding the procedure, the terms of which have been set out in the affidavit filed by Dr. R.K. Gupta, Associate Professor, Department of Higher Education, Government P.G. College, Noida on behalf of the state of U.P. The terms agreed are as under:
(i) To ensure that all seats in the colleges are filled through counseling pursuant to Entrance Examination, the Colleges are required to update their websites daily and display the number of students admitted as well as the number of seats vacant. For this purpose, each college shall have an official websites giving the details of total sanctioned seats, bank account etc. During the course of counseling, they will update their official website on day to day basis regarding vacant seats after admissions. The colleges shall also communicate the said particulars on daily basis to the Registrar of concerned University (Examination conducting body) through e- mail/telephone/Fax.
(ii) Every college will display its Bank Account Number and its name on its website and also provide to the concerned University (the examination conducting body). Any student, who is allotted to a particular college through counseling after the B.Ed. Joint Entrance Examination, will deposit his fees directly with the CBS Branch of the said Bank Account of the college to which he is allotted, within three days from the day of counseling. Subsequently, the said student will make available the copy of the proof of fee deposited to the concerned college and the concerned University. The concerned college will display the same on its website along with the details of the students. If any student faces any difficulty in depositing of the fee in the CBS account of the college to which he is allotted, he can immediately contact the University, the college and if required then concerned District Magistrate.
(iii)The schedule for admission for the academic session 2012-13 and subsequent years, shall be as under:
1. Publication of Advertisement 01.02.2011
2. Sale of Application Forms and 10-2-2012 to 10-3-2012 their submission
3. Date of Entrance Examination 20.04.2012 to 25.04.2012
4. Declaration of Result 25.05.2012 to 30.05.2012
5. Commencement and completion of counselling 01.06.2012 to 25.06.2012
6. Last Date of Admissions after counseling 28.06.2012
7. Commencement of Academic session 01.07.2012 [Note : for subsequent years, the same dates and months will apply]
(iv) From 2012-13, there will be only one counseling, which will continue for a period of 25 days. During the counseling, if it is found that a candidate/s allotted to any college do not turn up to take admission, the college shall inform the Counseling Authority and upon receipt of such information, another set of candidates will be sent to such colleges after counseling. The said counseling will be continuous to expedite the procedure of admission till closure of admission, without any second or third round of counseling.
(v) As per the schedule agreed for the year 2011-12, as per order dated 11.3.2011 of the Supreme Court, the admission process will be completed by 31.07.2011 after the first counseling. Subsequently, any vacant seats ascertained, will be filled up through second phase of counseling conducted from 03.08.2011 to 07.08.2011. Thus, the whole process of admission to all the seats of B.Ed. course shall be completed by 14.08.2011.
(vi) After that date (14.08.2011) if any seat remains vacant in a private college then to fill up the same the following course may be followed to ensure filling up all the vacant seats through counseling only:-
(a) A waiting list in the form of pool of about 5000 candidates will be prepared. The waiting list may be enlarged as per the requirement to fill up the vacant seats. The candidates registered with the pool will have to give an undertaking to the effect that they can be sent to any college having vacant seat for admission and they will have no objection. The candidates registered with the pool/waiting list will be arranged as per merit and will be allotted the colleges having vacant seats in their subjects according to their merit. This option will be exercised only after the end of counseling and be adopted only on the request of the colleges for filling up their remained vacant seats within three days from the last date of admission.
In such circumstances, the concerned university will provide the students from waiting list accordingly to fill up the seats but the entire process will be completed within 10 days, i.e. by 24.08.2011 for the session 2011-12 and 8th of July for the next consecutive years.
The wait listed pool candidates, shall along with the undertaking, deposit the fees with the University concerned and in case the candidates fails/refuses to join the allotted college as per his undertaking then the fee deposited with university will be remitted to the account of the college immediately, to which the students has been allotted by the university provided that the seats remained vacant during that academic session.
(b) After the counseling is over, the concerned University will continue to allot the candidates from the above mentioned waiting list against the vacant seats till all the seats in the colleges are filled up. It is further submitted that the organizing university will provide students only to the existing B.Ed. College and all those B.Ed. Colleges which will get affiliation up to dated 07.07.2011 will not be considered for counseling to the year 2011-12 and for the next consecutive years and onward the colleges which will be get affiliated on or before 10th of May of that year, would be considered for counseling.
(c) The organizing University will start online help service through which the complaints of the candidates will be redressed. All the colleges concerned will also provide their helpline separately and after receipt of the complaints the organizing university will forward the same to the concerned college for redressal, failing which the organizing university will seek the explanation from the college concerned and if any default or omission is found on the part of the college, then the same would be forwarded to the government for necessary actions against such college.
(d) The state shall take all endevour to ensure admissions only through counseling after holding State Level Entrance Examination against all the seats sanctioned in self-financing institutions running B.Ed. Course.
(e) That in case any unforeseen difficulty arises regarding filling up vacant seats in the concerned colleges despite strictly following the procedure agreed, even after 24.08.2011, the colleges will be entitled to approach, for filling up their vacant seats, to Principal Secretary/Secretary of the Department of Higher Education, Government of UP who will arrange to provide selected candidates from the wait-list pool within 3 days from receipt of application to fill up those vacant seats.
(f) The same procedure will mutatis mutandis apply for the academic years 2012-13 and thereafter.
(vii) The state government will adopt similar procedure in regard to filling of any vacant seats for the admission for the academic year 2012-13 and subsequent years."
The schedule as directed to be followed by Hon'ble Supreme Court in the case of College of Professional Education and others (supra) was however issued with a further direction to the State Government that the State Government will endeavour to formulate the said schedule in the form of appropriate admission and procedural rules. The judgment further provides that until the State Government makes such rules, the said procedure shall be applied. It also provides that same procedure will mutatis mutandis apply for the academic session 2013- 2014 and thereafter.
Hon'ble Supreme Court in its subsequent judgment dated 13.12.2012 in the case of Maa Vaishno Devi Mahila Mahavidyalaya vs. State of U.P. and others, reported in (2013) 2 SCC 617 reiterated the schedule mentioned in the case of College of Professional Education and others (supra) in relation to admissions, recognition, affiliation and commencement of B.Ed course. In this case Hon'ble Supreme Court even observed that in case of disobedience of the said schedule or any attempt to circumvent the judgment of Supreme Court and the directions contained therein, the person concerned shall become liable for proceedings under the Contempt of Courts Act, 1971 and for disciplinary action as well.
Paragraph 91.1 and 91.2 contained in the said judgment of Hon'ble Supreme Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya (supra) are extracted herein below:-
"91.1. The Schedule stated in College of Professional Education and in this judgment in relation to admissions, recognition, affiliation and commencement of courses shall be strictly adhered to by all concerned including NCTE, the State Government and the University/examining body.
91.2. In the event of disobedience of schedule and/or any attempt of overreach or circumvent the judgment of this Court and the directions contained herein, the person concerned shall render himself or herself liable for proceedings under the Contempt of Courts Act, 1971 and even for departmental disciplinary action in accordance with law."
Admittedly, no separate procedural rules governing admission to B.Ed course in the State of U.P. have yet been formulated by the State Government and accordingly there cannot be any ambiguity that the schedule formulated by Hon'ble Supreme Court in the case of College of Professional Education and others (supra) as reiterated in the case of Maa Vaishno Devi Mahila Mahavidyalaya (supra) is binding not only on the State Government but also on the Nodal University which conducted the Joint Entrance Examination and also on the Universities and the Colleges/Institutions where admissions for the academic session 2013-2014 were made.
There cannot be any quarrel that by operation of Article 141 of the Constitution of India whatever is laid down by Hon'ble Supreme Court becomes law of the land and that its decision are binding on all. The law laid down by Hon'ble Supreme Court is applicable to every person including those who are not parties to that order.
Apart from the provision of Article 141 of Constitution of India which provides that law declared by Hon'ble Supreme Court shall be binding on all, there is yet another provision in the Constitution of India in the form of Article 144 which needs to be taken note of at this juncture itself.
Article 144 declares that "All Authorities, Civil and Judicial in the territory of India shall act in aid of the Supreme Court". Thus, every authority in the country, without exception, is bound by the directions of the Hon'ble Supreme Court.
To reflect as to whether admissions in the B.Ed course in the academic session 2013-2014 made after 16.09.2013 can be said to be lawful entitling such students to appear in the examination and seek declaration of their result, we find it necessary to examine the Government Orders dated 26.09.2013 and 08.10.2013 in the background of directions of Hon'ble Supreme Court issued in the case of College of Professional Education and others (supra) as reiterated in the case of Maa Vaishno Devi Mahila Mahavidyalaya (supra). As per schedule in the case of College of Professional Education and others (supra), admission on the basis of extended second counselling could be made only till 14.08.2013. The direction contained in paragraph 4 (vi) (b) of the judgment in the case of College of Professional Education and others (supra), however permitted to fill up seats which remained vacant even after 14.08.2013 by following the course/procedure given therein. As per the said procedure, the University was to provide students from wait list to fill up vacant seats but such entire process could be completed within ten days from 14.08.2013 i.e by 24.08.2013.
As a matter of fact, an interlocutory application, namely, IA No. 109-110 of 2013 was filed by an Institution i.e. DAV College at Meerut-Hapur Road, District Meerut in Civil Appeal No.5914 of 2011 (College of Professional Education and others, decided on 22.07.2011) with the prayer that the said institution be permitted to admit students in B.Ed course against vacant seats. However, Hon'ble Supreme Court after considering the said prayer passed an order on 25.11.2013 whereby interlocutory application was dismissed. The order dated 25.11.2013 passed by Hon'ble Supreme Court in IA No.109-110 is reproduced hereunder:-
"We have not been granting any further relief to any party in case of admissions for the academic session 2013-2014 after 16.09.2013. These interlocutory applications are also dismissed.
It will however be open for the applicant to have the concerned court including this Court for further relief for the academic session 2014-2015."
Thus, at the most, admission to B.Ed course in the State of U.P. for the academic session 2013-2014 could have been made only till 16.09.2013 and any admission made thereafter would be in derogation of the directions issued by Hon'ble Supreme Court in its judgment dated 22.07.2011 in the case of College of Professional Education and others (supra). The decision of the State Government contained in the Government Order dated 26.09.2013 is thus to be considered in light of the aforesaid.
While examining the Government Orders dated 26.09.2013 and 08.10.2013, we may also record that State of U.P. filed Miscellaneous Application bearing IA No.1216 of 2017 in the case of College of Professional Education and others (supra) which was already decided on 22.07.2011 and prayed therein to provide that this Court shall be free to pass appropriate orders in certain pending writ petitions without being influenced by the order dated 25.11.2013 passed in IA No.109-110 of 2013. Another Miscellaneous Application bearing IA No. 1243 of 2017 was filed by a candidate-Rupam Sharma, in the case of College of Professional Education and others (supra) decided on 22.07.2011 where IA No.109-110 of 2017 were also dismissed on 25.11.2013, with the prayer that directions be issued that the order dated 25.11.2013 was not applicable to students who had taken admission pursuant to the Government Order dated 08.10.2013. Both these interlocutory applications i.e. IA No.1216 of 2017 and 1243 of 2017 were also dismissed by Hon'ble Supreme Court vide its order dated 10.09.2018 which is quoted herein below:-
"Upon hearing the counsel, the Court made the following order.
The applications are dismissed.
M.A. Nos.1216/2017 and 1243/2017 are disposed of accordingly."
The Government Order dated 26.09.2013 has been attempted to be justified by learned Advocate General appearing on behalf of State of U.P. by referring to the directions issued by Hon'ble Supreme Court in paragraph 4 (vi) (e) of the judgment in the case of College of Professional Education and others (supra). In support of his submission, learned Advocate General has submitted that the said paragraph in the judgment of College of Professional Education and others (supra) permitted admission in B.Ed course even after 24.08.2013 in case any unforeseen difficulty would arise in filling up vacant seats despite following the procedure. According to learned Advocate General the said directions issued by Hon'ble Supreme Court provided that institutions shall be entitled to approach the State Government for filling up their seats who would arrange to provide selected candidates from the wait list pool.
The direction of Hon'ble Supreme Court contained in paragraph 4 (vi) (e) in the case of College of Professional Education and others (supra) is extracted herein below:-
"(e) That in case any unforeseen difficulty arises regarding filling up vacant seats in the concerned colleges despite strictly following the procedure agreed, even after 24.08.2011, the colleges will be entitled to approach, for filling up their vacant seats, to Principal Secretary/Secretary of the Department of Higher Education, Government of UP who will arrange to provide selected candidates from the wait-list pool within 3 days from receipt of application to fill up those vacant seats".
It is true that the Hon'ble Supreme Court by the said directions permitted admission even after 24.08.2013, however it was subject to the condition that any unforeseen difficulty would have arisen regarding filling up vacant seats. The said direction further provides that in such an eventuality, the colleges shall approach the State Government for filling up their vacant seats and thereafter the State Government shall arrange to provide selected candidates from the wait list pool, that too, within three days from receipt of application from the colleges to fill up the vacant seats. There is nothing on record which reveals, neither is it reflected from the Government Orders dated 26.09.2013 and 08.10.2013, that colleges had made any such request to the Principal Secretary/Secretary of the Department of Higher Education, Government of U.P. as envisaged in the directions contained in paragraph 4 (vi) (e) in the case of College of Professional Education and others (supra).
In this view of the matter, submission made by learned Advocate General that the Government Order dated 26.09.2013 was issued in light of the directions contained in paragraph 4 (vi) (e) in the case of College of Professional Education and others (supra), is not acceptable; rather merits rejection.
The Government Order dated 26.09.2013 refers to paragraph 4 (vi) (b) of the judgment in the case of College of Professional Education and others (supra) which provides that even after counselling is over the University concerned will continue to allot the candidates from the wait list against vacant seats till all seats in the college are filled up. However, the said directions, in our opinion, could not be construed by the State Government to make the process of admission in B.Ed course an unending one. The schedule as fixed in the said case was to be followed in every circumstance and after 24.08.2013 no admission could have been made except by following the procedure as provided by Hon'ble Supreme Court in paragraph 4 (vi) (e) in its judgment in the case of College of Professional Education and others (supra).
Hon'ble Single Judge in the case of Ankit Kumar has relied upon a communication dated 26.11.2018 issued by the Special Secretary in the Department of Higher Education and has observed that on the basis of said communication learned counsel representing the State of U.P. submitted that the State Government did not have any objection in case result of the petitioners of said case (bunch of writ petitions leading writ petition being Ankit Kumar and others vs. State of U.P) was declared by the University. The judgment dated 03.12.2018 in the case of Ankit Kumar is based on the statement made by learned State counsel on the basis of communication dated 28.11.2018. The communication dated 28.11.2018 was issued by the Special Secretary, Government of U.P. in the Department of Higher Education and is addressed to the Chief Standing Counsel who represented the State Government in the said case. Paragraph 2 of the said communication makes reference of order of Hon'ble Supreme Court dated 25.11.2013 while dismissing Interlocutory Application nos.109-110 of 2013 by observing therein that no further relief to any party in case of admission after 16.09.2013 had been granted. Paragraph 2 of the communication dated 28.11.2018 is extracted herein below:-
"ek0 loksZPp U;k;ky; }kjk flfoy vihy l0a 5914@2011 esa fnukad 25-11-2013 dks ;g fu.kZ; ikfjr fd;k x;k fd fdlh Hkh i{kdkj dks 'kSf{kd l= 2013&14 ds fy, 16-09-2013 ds ckn dksbZ vU; vuqrks"k iznku ugha fd;k tk;sxkA ek0 mPpre U;k;ky; ds vkns'k fnukad 22-07-2011 ds vuqikyu essa jkT; ljdkj }kjk ch0 ,M0 dh fjDr lhVksa ds izos'k ds fy, vfUre frfFk 15-10-2013 fu/kkZfjr dh x;h FkhA bl fu.kZ; ds QyLo:i fnuakd 15-10-2013 rd vusd Nk=ksa dks fofHkUu egkfo|ky;ksa esa izos'k izkIr dj fy;k x;k FkkA egkfo|ky;ksa esa fnuakd 16-09-2013 ,oa 15-10-2013 ds e/; izos'k ik;s Nk=ksa dh ijh{kk vk;ksftr ugh gks ldh] ftlls {kqC/k gksdj Nk=ksa }kjk ek0 mPp U;k;ky; esa dkQh la[;k esa fjV ;kfpdk;sa ;ksftr dh x;h gSA bu fjV ;kfpdkvksa dh vxz.kh fjV ;kfpdk 4289 ¼,e0 ,l0½@2014] vafdr dqekj o vU; cuke jkT; o vU; esa foHkkx dh vksj ls 'kiFk i= o vuqiwjd 'kiFk i= nkf[ky fd;s tk pqds gSA bl laca/k esa 'kklu ds i= la[;k&fjV 09@lRrj&3&2014] fnuakd 20-01-2015 ,oa i= la[;k&fjV 19@lRrj&3&2015Мw ¼35½@2012 fnuakd 24-04-2015 }kjk iwoZ esa 'kklu ds i{k ls voxr djk;k tk pqdk gSA"
The said communication, after referring to the order dated 25.11.2013, further recites that various students had taken admission even after 16.09.2013 till 15.10.2013, however their examination was not conducted whereupon they filed writ petitions and that in such petitions, including in the case of Ankit Kumar, stand of the State had been submitted.
When we examine the instructions given to the State counsel by the Department of Higher Education, State of U.P. vide its communication dated 28.11.2018 what we find is that it does not in categorical and unambiguous terms state that the State had no objection in case results of the petitioners of the said petitions were declared by the University concerned.
Now coming to the first question referred to us by Hon'ble Single Judge, we may observe that in our constitutional scheme though Hon'ble Supreme Court and the High Courts are both courts of record and this Court is not a Court subordinate to the Supreme Court, however the provisions of constitution, especially the appellate jurisdiction assigned to Supreme Court, give a superior place to the Supreme Court over High Courts in the hierarchy. So far as the appellate jurisdiction vested in the courts in our country is concerned, in all matters, civil and criminal, Supreme Court is the highest court of appeal and it is the final interpreter of law. Under Article 141, the law declared by the Supreme Court is final and is binding on all courts including this Court. Under Article 144, all authorities, civil and judicial, which would include High Courts as well, are to act in aid of the Supreme Court. In the hierarchical judicial system envisaged by our Constitution, the Supreme Court is placed over the High Courts vertically. As a superior forum it has the jurisdiction to annul or modify or affirm any order or judgment which may be rendered by this Court. The corrective jurisdiction inherently encompasses in its fold power to issue direction to be followed by and is binding on the forum below. Any failure on the part of lower forum to obey or carry out such directions issued by higher forum may lead to destruction of the hierarchical system in administration of justice.
In this regard, we would like to refer to a judgment of Hon'ble Supreme Court in the case of Bharat Builder Pvt Ltd and others vs. Parijat Flat Owners Coop. Housing Society Ltd., reported in (1999) 5 SCC 622. The said judgment is a very short one. However, its reference in this case suffices to highlight the purpose for which makers of our constitution made Article 144 part of the Constitution. The judgment in the case of Bharat Builder Pvt Ltd and others (supra) is extracted herein below:-
"1. The respondent appears.
2. Leave granted.
3. The order under challenge was passed by a Division Bench of the High Court at Bombay on a review application in the following circumstances.
4. On 19-12-1997, on a special leave petition [SLP (C) No. 22776 of 1997] filed by the appellant against the respondent, the following order was passed:
"The Division Bench of the High Court at Bombay has, in the judgment and order under appeal, noted that the petitioner and the respondent had in an earlier writ petition, jointly filed, pleaded that the deed whose construction is relevant here 'is a sale and not a lease'. The High Court took the view that this pleading was sufficient to reach the conclusion that the deed 'is an agreement for a sale'.
We have been shown the relevant averments in the earlier writ petition. It appears that the High Court has not considered whether the admission is of a sale or an agreement to sell. We think that, in the circumstances, the petitioner should move the Division Bench of the High Court in this behalf, by the convenient means of a review petition.
We make it clear that the High Court shall decide, after hearing parties on the review petition, whether the admission is of a completed sale or of an agreement to sell and whether, by reason thereof, the provisions of the Maharashtra Ownership Flats (Regulation and Promotion of Construction, Sale, Management and Transfer) Act will apply. Regardless of the technical limitations of the review petition, these questions shall be addressed.
Mr. K.K. Venugopal, learned Counsel for the petitioner, states that the review petition shall be moved within 4 weeks. Mr. Harish N. Salve, learned Counsel for the respondent, states that, pending the review petition, no steps shall be taken to execute the decree that is under challenge.
The SLP is disposed of accordingly."
(emphasis supplied)
5. The review petition was heard by the two learned Judges who had passed the order which was the subject-matter of the earlier SLP. The order on the review petition states "It is contended that the Supreme Court while disposing of the above said SLP has called upon this Court to decide. In interpreting the document Exh. E whether the admission made by the parties construing the document Exh. E in the earlier writ petition is of a completed sale or an agreement to sale and whether by reason thereof the provisions of the Maharashtra Ownership Flats (Regulation and Promotion of Construction, Sale, Management and Transfer) Act will apply. In fact the aforesaid question was not at all a question raised in the suit in the trial court or before this Court. In fact the main question that was posed in the appeal was as to whether Exh. E was properly construed by the lower court as one of agreement to sell or as indenture of lease".
The Division Bench has, therefore, come to the conclusion that "rightly or wrongly an impression has been created while reading our judgment that we have solely relied upon the judgment of this Court in previous writ petition in interpreting the document Exh. E. This misunderstanding must have been crept in partly due to some clerical mistake occurred in some places in the judgment by using phrases agreement for sale instead of agreement to sell. However, the issue posed to be examined as directed by the Supreme Court is not the issue which was raised in the trial court or the Appellate Court and it is not permissible for us to go into such a fresh issue in this review application, first time. In view of this we do not find any merit in the contentions of the applicant and review application is, therefore, liable to be rejected."
(emphasis supplied)
6. The Division Bench has not read the order that we passed on 19-12-1997. We have asked the Division Bench to consider the questions set out in the third paragraph of the order. To enable it to do so we have asked the appellants to move it 'by the convenient means of a review petition'. We have ordered: 'Regardless of the technical limitations of the review petition these questions shall be addressed.' Nonetheless, it has not done so.
7. It is necessary to point out to the High Court that the Constitution of India, in Article 144, requires all authorities, civil and judicial in the territory of India to act in aid of the Supreme Court.
8. It was imperative for the High Court, to have decided the questions that it was required to decide by this Court's order dated 19-12-1997. For this reason, very fairly, the respondents do not object to the order under challenge being set-aside the review petition being sent back to the High Court.
9. The appeal is allowed. The order under challenge is set aside. The review petition is restored to the file of the High Court to be heard and decided afresh. In so deciding, the High Court shall scrupulously follow the requirements of the order of this Court dated 19-12-1997. In the circumstances aforestated, it becomes necessary to require that the review petition shall be listed before learned Judges other than those that passed the order under challenge.
10. Pending further orders no steps shall be taken to execute the decree.
11. No order as to costs."
In the said case, the Hon'ble Supreme Court had required the High Court to consider certain issues and questions in review petition regardless of the technical limitations of review, however the High Court dismissed the review petition by observing that, "the issue posed to be examined as directed by the Supreme Court is not an issue which was raised in the trial court or the appellate court and it is not permissible for us to go into such a fresh issue in this review petition, first time. In view of this, we do not find any merit in the contention of the applicant and review application is, therefore, liable to be rejected".
Hon'ble Supreme Court when considered the aforesaid judgment passed by High Court in review petition, it observed that it was imperative for the High Court to have decided the questions that it was required to decide by Hon'ble Supreme Court. While setting aside the order of the High Court, Hon'ble Supreme Court also reminded the High Court of Article 144 of the Constitution of India which requires all authorities, civil and judicial in the territory of India to act in aid of the Supreme Court.
Failure to comply with the direction of Hon'ble Supreme Court has always been deprecated. In this regard, reference may be had to paragraph 9 of the judgment in the case of Bharat Earth Movers vs. Commissioner of Income Tax, Karnataka, reported in (2000) 6 SCC 645, which is extracted herein below:-
"9. Before parting, we would like to observe that when this appeal came up for hearing on 24.3.1999 we felt some difficulty in proceeding to answer the question arising for decision because the orders of the authorities below and of the Tribunal did not indicate how the leave account was operated by the appellants and the leave salary provision was made. To appreciate the facts correctly and in that light to settle the law we had directed the Income Tax Appellate Tribunal to frame a supplementary statement of case based on books of account and other relevant contemporaneous records of the appellant which direction was to be complied with within a period of six months. The hearing was adjourned sine die. After a lapse of sixteen months the matter was listed before the court on 20.7.2000. The only communication received by this court from the Tribunal was a letter dated 20th June, 2000 asking for another six months time to submit the supplementary statement of case which prayer being unreasonable, was declined. Under Section 258 of the Income Tax Act, 1961, the High Court or the Supreme Court have been empowered to call for supplementary statement of case when they find the one already before it not satisfactory. Article 144 of the Constitution obliges all authorities, civil and judicial, in the territory of India to act in aid of the Supreme Court. Failure to comply with the directions of this court by the Tribunal has to be deplored. We expect the Tribunal to be more responsive and more sensitive to the directions of this Court. We leave this aspect in this case by making only this observation."
Reflecting upon the necessity of accepting the decisions of higher courts by the courts of lower tier in the hierarchical system of courts, the Hon'ble Supreme Court in the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd and others, reported in (1985) 1 SCC 260 has observed as under:-
"We desire to add and as was said in Cassel and Co. Ltd. v. Broome we hope it will never be necessary for us to say so again that 'in the hierarchical system of Courts' which exists in our country, 'it is necessary for each lower tier', including the High Court, 'to accept loyally the decisions of the higher tiers'. "It is inevitable in a hierarchical system of Courts that there are decisions of the Supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary...............But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted". The better wisdom of the Court below must yield to the higher wisdom of the Court above. That is the strength of the hierarchical judicial system. In Cassel & Co. Ltd. v. Broome, commenting on the Court of Appeal's comment that Rookes v. Barnard was rendered per incuriam Lord Diplock observed:
"The Court of Appeal found themselves able to disregard the decision of this House in Rookes v. Barnard by applying to it the label per incuriam. That label is relevant only to the right of an appellate court to decline to follow one of its own previous decisions, not to its right to disregard a decision of a higher appellate court or to the right of a judge of the High Court to disregard a decision of the Court of Appeal."
It is needless to add that in India under Article 141 of the Constitution the law declared by the Supreme Court shall be binding on all courts within the territory of India and under Article 144 all authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court."
We may also notice that Government of India Act, 1935 under Section 210 (1) also had a provision similar to Article 144 of the Constitution of India. Section 210 (1) of Government of India Act, 1935 is reproduced below:-
"210. Enforcement of decrees and orders of Federal Court and orders as to discovery, etc- (1) All authorities, civil and judicial, throughout the Federation, shall act in aid of the Federal Court".
It is also worthwhile to observe that Article 144 of Constitution of India was adopted by Constituent Assembly on 27.05.1949 without any amendment in the draft constitution (Article 120) or even without any debate.
This clearly shows the significance and importance which is intended to be given to Article 144 of Constitution of India for maintenance and working of hierarchical system of courts in our judicial set up.
The principle of law as embodied in Article 141 and 144 of the Constitution of India as discussed by Hon'ble Supreme Court in the aforementioned judgments does not leave any scope whatsoever for either this Court or for any authority in the State Government not to act in accordance with the directions contained in any judgment or order passed by Hon'ble Supreme Court. Any act by any authority in derogation and even in contravention of an order passed by Hon'ble Supreme Court cannot be approved of on any count or for any reason whatsoever.
In the instant case, we have already seen and concluded that the Government Orders dated 26.09.2013 and 08.10.2013, are not in conformity with the directions issued by Hon'ble Supreme Court in its judgment dated 22.07.2011 in the case of College of Professional Education and others (supra). Further, it is noticed that the interlocutory applications, namely, IA No.109-110 of 2013 which were filed before Hon'ble Supreme Court with the prayer made by an institution to permit it to admit the students in B.Ed. course against vacant seats were already dismissed vide order dated 25.11.2013 passed by Hon'ble Supreme Court by observing that Hon'ble court had not been granting any further relief to any party in case of admissions after 16.09.2013. When the State Government moved IA No.1216 of 2017 before Hon'ble Supreme Court with the prayer to permit the High Court to pass appropriate orders in relation to declaration of results of B.Ed students admitted pursuant to the Government Order dated 08.10.2013, Hon'ble Supreme Court vide its order dated 10.09.2018 dismissed the same. The prayers made in the interlocutory application (IA No.1216 of 2017) is extracted herein below:-
"In the facts and circumstances of the case and in the interest of justice it is most respectfully prayed that Your Lordships may graciously be pleased to:
(i) permit the High Court to pass appropriate orders in relation to declaration of result of B.Ed. students admitted pursuant to Govt. Order dated 08.10.2013.
(ii) clarify the position that the High Court shall be free to pass appropriate orders in the pending Writ Petitions without being influenced by the order passed by this Hon'ble Court on 25.11.2013 in IA No.110/2013; and
(iii) Pass such other and further order (s) as this Hon'ble Court may deem just and proper in the premises of this case."
The said prayer was rejected, as observed above, by Hon'ble Supreme Court on 10.09.2018. Thus, it appears that the said order was not brought to the notice of this Court in the case of Ankit Kumar which was decided subsequent to the order dated 10.09.2018 passed by Hon'ble Supreme Court i.e. on 03.12.2018. Dismissal of IA No.1216 of 2017 filed by the State of U.P. by Hon'ble Supreme Court vide its order dated 10.09.2018 does not leave anyone in doubt that time schedule relating to admission etc. in B.Ed courses by Hon'ble Supreme Court in the case of College of Professional Education and others (supra) was to be strictly followed and in view of what we have discussed above in reference to provision of Article 141 and 144 of the Constitution of India, we have no hesitation to hold that it was not open for any authority or body, be it the State Government or even this Court, to have in any manner relaxed the time schedule as fixed by Hon'ble Supreme Court in the case of College of Professional Education and others (supra).
We thus answer the question no.1 referred to us as follows.
It was not open either for the State Government or this Court to have relaxed the time schedule fixed by Hon'ble Supreme Court in the case of College of Professional Education and others (supra) and that declaration of result of students admitted in B.Ed course in the academic session 2013-2014 after 16.09.2013 is impermissible.
As regards question no.2 referred to us, we may observe that instructions of the State Government contained in its communication dated 28.11.2018 did not instruct the State counsel to submit before this Court that the State Government did not have any objection if the result of the petitioners in the said matter, was declared. Nonetheless, we may notice that the said communication dated 28.11.2018 though notices the order dated 25.11.2013 whereby Interlocutory Application Nos. 109-110 were dismissed by Hon'ble Supreme Court, however, it does not make any mention of the order dated 10.09.2018 which was passed by Hon'ble Supreme Court on the interlocutory applications made by the State of U.P. itself (IA No.1216 of 2017) whereby prayer of the State Government for permitting this Court to pass appropriate orders for declaration of result of B.Ed students admitted in pursuance of the Government Order dated 08.10.2013, was rejected.
It is needless to say that it is the duty of every authority including the authorities of the State Government and its instrumentalities as well not only to disclose correct facts before the Court but also to disclose full and complete facts so as to assist the Court appropriately in discharge of its judicial functions.
Having observed as above, we may only point out at this juncture that the communication dated 28.11.2018 did not instruct learned Standing Counsel appearing for the State of U.P. to make any such statement that the State had no objection in case result of the petitioners of the said case was declared by University. The manner in which the case of Ankit Kumar was conducted on behalf of State of U.P. though cannot be appreciated for non-disclosure of full and complete facts, however, we do not find it a case of any deliberate attempt by the officers of the State Government to mislead the Court so as to make the officers liable to be proceeded against, under contempt jurisdiction. In this view of the matter, question no.2 referred to us is answered as follows:
Since instructions of State Government contained in its communication dated 28.11.2018 did not disclose full and complete facts including the order dated 10.09.2018 passed by Hon'ble Supreme Court on the interlocutory application moved by State of U.P. itself (IA No.1216 of 2017), the said instructions could not be acted upon, however, in absence of any specific instruction to learned State counsel to submit before this Court that State did not have any objection if result of those admitted students is declared by the University, the contempt proceedings against officers of the State may not be initiated/instituted.
Reference made is answered thus.
Let writ petition be listed before Hon'ble Single Judge for hearing and decision accordingly.
Order Date :- October 18, 2019 Renu/-