Madhya Pradesh High Court
St. Pauls Convent Senior Secondary ... vs The Central Board Of Secondary ... on 4 January, 2018
Author: Virender Singh
Bench: Virender Singh
High Court of Madhya Pradesh
Bench at Indore
HIGH COURT OF MADHYA PRADESH: BENCH
AT INDORE
D.B: HON'BLE SHRI JUSTICE P.K. JAISWAL &
HON'BLE SHRI JUSTICE VIRENDER SINGH
Writ Petition No.1875 of 2017
St. Paul's Convent Senior Secondary School, Ujjain
Vs.
The Central Board of Secondary Education & Others
Whether approved for reporting: Yes/No
Shri Anshuman Singh, learned counsel for the
petitioner.
Shri Akhil Godha, learned counsel for the respondent
nos.1 and 2/CBSE.
Shri Vivek Patwa, learned Public Prosecutor for the
respondent nos.3 and 4/State.
ORDER
(Delivered on 04/01/2018) Per: Virender Singh, J.
1. The petitioner has come before this Court to set aside the impugned order dated 02/03.02.2017 (Annexure P-11) passed by Central Board of Secondary Education (Respondent no.1&2) (hereinafter referred as "The Board") whereby the provisional affiliation of the petitioner institution with the Board is withdrawn with immediate effect.
2. Succinctly stated material facts giving rise to the present petition are that the petitioner is a school established High Court of Madhya Pradesh Bench at Indore in the year 1979. The school is managed and run by the Diocese of Ujjain Society which is registered with the Registrar of Firms and Societies, Madhya Pradesh. Presently the strength of the school is 3050 students who are pursuing their studies from Kindergarten to Class-XII. The school has 84teaching staff and 23 supporting staff. The School is affiliated with "The Board".
3. In the year 2016, student of XIth standard namely Nitesh Kanojiya did not perform well and could not pass the final examination. He alongwith his mother approached the school (petitioner) and submitted a written application dated 07.04.2016 requesting for grant of Transfer Certificate (TC) stating that he was not able to cope up with "The Board"
standards and wanted to changed the examination board (Annexure P-2). He made another application on the same day requesting the Principal of the School to grant him "Pass Certificate" so that he may seek admission in another school and may save his academic year (Annexure P-3). The school acceded his request and granted him pass certificate and TC. He tried to get admission in another school having curriculum of state Board, but failed. Thereafter, he again approached the petitioner school to grant him admission in class XII on the basis of pass marks given by the petitioner. The petitioner did not grant him admission in XIIth standard though they were ready to give him admission in XIth standard. He got annoyed High Court of Madhya Pradesh Bench at Indore by refusal and made some complaints to the Collector/District Authorities to the effect that he was pressurized and granted TC fraudulently threatening him that otherwise he will be failed in XIth standard. He further alleged that the school had issued the mark-sheet to deceive him and that the signatures of his mother were obtained on blank papers.
4. Acting on his complaint and some other false complaints said to be made by some other students who have taken transfer certificates from the school, the Collector directed the petitioner to grant them admission. In compliance of the directions of the Collector, the petitioner issued them a letter and asked all such students to seek readmission in the petitioner's school, but none of them turned up. The petitioner refused to succumb before pressure of the State Administration/Authorities to grant him admission in class XIIth as he could not pass class XIth standard.
5. Annoyed by this, the Collector sent a letter to "The Board" for taking action against the petitioner institution. Acting on the said request, "The Board" issued show-cause notice dated 20.10.2016 alleging that the school had issued a false mark-sheet to the students with intend to deceive them. The petitioner duly replied to the notice and submitted all the facts. Despite this, respondent no.2 issued the impugned order on behalf of "The Board".
High Court of Madhya Pradesh Bench at Indore
6. In the meantime, student himself filed a Writ Petition No.4562/2016 before this Court on the same grounds that the school had deceived him and even after granting passing marks in XIth standard, refused to grant him admission in the XIIth standard. The Court considered all the allegations of the student and reply of the petitioner at length and after examining and considering the averments of both the parties, dismissed the writ petition holding that there was no fault on the part of the petitioner institution and it cannot be compelled to grant admission to the student in XIIth standard.
"The Board" itself was a respondent in this petition and no further action has been taken against the order of this Court, therefore, it attained finality. All these facts relating to the petition brought to the notice of "The Board" even then "The Board" passed the impugned order.
7. The petitioner has come before this Court on the grounds that the impugned order is completely arbitrary and illegal, has been issued in blatant violation of the statutory provisions and is also against the fundamental rights of the petitioner guaranteed under Article 14, 19, 21 and 30 of the Constitution of India. While passing the impugned order, the respondents have completely ignored the fact that there was no deception on the part of the petitioner in issuing passing marks of XIth class to the student as it was issued on his own request to facilitate him to take admission in some other High Court of Madhya Pradesh Bench at Indore school affiliated with the State Board to save his academic year. In these circumstances, very edifice of the impugned order dated 02.03.2017 is vitiated. While passing the impugned order, the facts placed before the respondent authorities in the reply to the show-cause notice have not been considered at all. The respondents have completely ignored the order of this Court passed in W.P. No.4562/2016 which disapproved the allegations of the student that the petitioner institution has granted pass mark-sheet with intent to deceive him and was not granting admission to him in the XIIth class arbitrarily. No fault was found by this Court in the action of the petitioner. "The Board" itself was party to that petition and no further action has been taken against the order of the Court in that petition. Therefore; it was no more open to the respondents ("The Board") to pass the impugned order. Passing marks was issued to the student bonafidely in the interest of the student to save his academic year.
8. Though there was some fault on the part of the petitioner institution in granting pass marks to a handful of students, but it cannot be said that it has undermined the sanctity of the entire examination or have made any attempt to deceive any student. The petitioner has never concealed the aforesaid facts from the authorities or even from the Court. While passing order in W.P. No.4562/2016, this Court has considered all these facts.
High Court of Madhya Pradesh Bench at Indore
9. It is also the averment of the petitioner that the impugned order is passed single handedly and acting upon the dictates of the District Collector, while he has no jurisdiction to recommend action against the petitioner institution. "The Board" cannot take any action only on the recommendation/instruction of the District Collector. The Collector had no occasion to recommend action against the petitioner institution when the matter has already been judicially scrutinized by this Court. Further, the recommendations made by the District Collector for taking action against the respondent institution have not been supplied to the petitioner.
10. The affiliation cannot be cancelled on the ground that the petitioner had not responded to any notice issued by District Education Officer (DEO). The allegation that the DEO had made any inspection in which certain discrepancies were found is also baseless. No such inspection was conducted; no copy of the report of any such inspection has been supplied to the petitioner.
11. The impugned order also could not have been passed on the ground that the petitioner has failed to grant admission on directions of Bal Kalyan Samiti or the District Authorities.
12. It is also submitted that the allegations of violation of Clause 13(3), 17(1),(2),(xi) of the bye-laws are also baseless and completely misplaced and misconceived. There is no High Court of Madhya Pradesh Bench at Indore violation on the part of the petitioner institution. The petitioner has never declined to supply any information to any of the authorities. The respondents have not pointed out any specific violation or any specific condition which is violated. Only general provisions have been pointed out to somehow justify the impugned order, therefore, the impugned order deserves to be set aside.
13. It is the allegation of the petitioner that the impugned order is passed on extraneous consideration. On several occasions, the Collector and other District Authorities have recommended the petitioner to give admission to several students. The petitioner makes every effort to entertain such recommendations and accommodated the students for whom such recommendations are made. However, it is not possible for the petitioner to comply with all such recommendations. It is the failure on the part of the petitioner to bow down to all such recommendations for admission, which is the genesis of the dispute between the petitioner and the district authorities or district administration. Precisely, this is the reason, the authorities got annoyed from the petitioner and for this extraneous reason, the petitioner institution is being made to suffer at the hands of the respondents.
14. It is further contented by the petitioner that there has to be a reasonable nexus between alleged misconduct and the punishment inflicted. In the present case, there was no High Court of Madhya Pradesh Bench at Indore malafide on the part of the petitioner. Acting bonafidely, they have issued pass mark-sheet to the student on his request to save his interest/academic year. The withdrawal of affiliation is the most extreme form of action which "The Board" was capable to take. On the basis of alleged failure alone, decision of withdrawal of affiliation cannot be justified under any circumstances. This is against the 'Principle of Proportionality'. The impugned action of withdrawal of affiliation is grossly disproportionate to the alleged misconduct. The respondents have put prejudice and in fact destroyed the future of 3050 students pursuing their studies and also the future of 84 teaching staff and 23 supporting staff. Therefore, the petitioner has approached this court with the prayer to set-aside the impugned order.
15. By filing reply, respondent nos.1 and 2 have denied all the grounds taken or the allegations made by the petitioner and have supported the impugned order.
16. It is contended by the answering respondents that the affiliation was granted to the petitioner on the understanding that the school shall abide by the affiliation and examination Bye-laws of the Board. The petitioner itself has admitted that the management of the school has passed the failed students by awarding them false marks. The action of the petitioner is intend to deceive the system and is in gross violation of Rule 13.3, 17.1&2a(xi) of the Affiliation Bye-laws. The conduct of High Court of Madhya Pradesh Bench at Indore the petitioner school is malafide. District Collector brought this fact into the notice of the Board. The Collector also informed the answering respondent that the DEO got inspected the petitioner school on 26.06.2016 and found that the management of the School has passed the failed students by awarding them false marks with intent to deceive the examination system and issued them transfer certificates. As per the letter of the Collector and reply of the school to the notice, it is proved that the school authorities have violated the Rule 13.3 of the Affiliation Bye-laws of the Board as the school authority has awarded false marks to the students arbitrarily which is against the fidelity of the examination system. It was also informed by the Collector that the School Management did not provide information asked by the DEO which is against the Rule 13.3 of the Affiliation Bye-laws of the Board. As per the intimation provided by the Collector when the students who have been awarded false marks failed to secure admission in other schools, they approached the petitioner school to get admission, but the school refused to give them admission, which caused dispute and then only the conduct of the petitioner school came into the light. The teachers of the petitioner school had been awarding marks in answer sheets of the students arbitrarily which is against the fidelity of the examination system. By awarding false marks to some of the failed students, the school management has deceived the examination system. The conduct of the High Court of Madhya Pradesh Bench at Indore petitioner school is malafide and also against the public policy.
17. It is further contended that the petitioner school was not supposed to award false marks to save the sanctity of the examination. By awarding false marks, they have deceived the examination system and also undermined the sanctity of the examination. The respondent has full right to take action on the basis of the information provided by the District Collector who is authority of the State Government and works for the betterment of the State. There is no ground to doubt on the information provided by the Collector and inspection got done by the DEO as they are the State authorities. Misconduct of the petitioner school is against the affiliation Bye-laws of the respondent Board. The respondent has all rights to withdraw the affiliation if any misconduct is done by the School.
18. Denying the allegations of extraneous consideration in passing the impugned order, the answering respondents have stated that the Board or any of its officers has never made any recommendation to the petitioner for admission of any student. The action is taken as the petitioner has committed misconduct. The order passed by the answering respondent is based upon the principle of natural justice as proper opportunity was granted to the petitioner school by issuing show-cause notice which was also replied by the petitioner. In High Court of Madhya Pradesh Bench at Indore reply, the petitioner has admitted that he has granted false marks to failed students which is not only against the Bye- laws of the Board relating to the affiliation of the school but also against the fidelity of the examination system. The petitioner has not undermined the sanctity of the examination system also.
19. It is also submitted that the order passed by this Court in Writ Petition No.4562/2016 is completely on different issue. The issue involved in that petition is with regard to the denial of admission to the students and the present issue is withdrawal of the provisional affiliation of the petitioner school on the ground that they have passed the failed students by awarding them false marks.
20. While issuing impugned order, the respondent has taken care of interest of the students who are pursuing their studies in the petitioner school keeping in view of safeguard of career of the existing students of class IX to XII, they are permitted to appear in the Board's class X and XII examination to be held in the year 2018 for the academic year of 01.04.2017 to 31.03.2018.
21. The answering respondents have also taken objection regarding jurisdiction of the Court. It is submitted that as per the affiliation Bye-laws, the present petition is not maintainable before this Court as the Bye-laws relating to the affiliation provides that the jurisdiction of the Court of law High Court of Madhya Pradesh Bench at Indore shall be the Union Territory of Delhi and no any other place. On all these grounds, the answering respondents have prayed for dismissal of the petition.
22. Respondent nos.3 and 4 have filed a separate reply, but have taken more or less same grounds for the same prayer of dismissal of the petition.
23. It is submitted by the respondent nos.3 and 4 that some of the students of the petitioner school made complaints dated 13.06.2016, 14.06.2016, 24.06.2016 and 25.06.2016 alleging that they were failed and expelled by the petitioner institution without any reason. Some of the parents have also made complaints regarding irregularities and arbitrariness in admission of students, selection of teaching faculties, increase of tuition fees and some other irregularities. Respondent no.4/DEO has directed the Principal, Government Higher Secondary School, Jivajiganj, Ujjain to enquire about the complaints who submitted a report dated 04.07.2016. On enquiry, it was found that the petitioner institute has evaluated and changed the marks of the students arbitrarily due to which some students got failed. The petitioner institution obtained application for issuing transfer certificate from such students and issued them transfer certificates arbitrarily. Such irregularities were mentioned by the Principal in his report (Annexure R-3). The Collector, Ujjain (Respondent no.3) directed the petitioner institution High Court of Madhya Pradesh Bench at Indore vide communication dated 14.07.2016 to give admission to those students to whom the petitioner institution had issued transfer certificates as they have passed the XI th class. The Collector asked them to submit compliance report within three days and informed that otherwise stern action will be taken against them, but no reply was filed by the petitioner, therefore, the Collector sent a letter dated 11.08.2016 and 16.08.2016 alongwith the enquiry report to the Board for taking stern action against the petitioner.
24. In its two separate rejoinders to the replies of the respondents, apart from the facts stated in the petition, the petitioner has submitted that the petitioner institution has acted in the most justifiable and bonafide manner. The Congregation took up the matter with utmost seriousness and called for an explanation from the Principal Sister Archana on the issue of enhancement of marks of the students. She explained the circumstances in which marks were enhanced. She stated that the school had nothing to gain out of the enhancement of the marks and the same was done only in the interest of the student who was leaving the institution. She, nevertheless accepted her mistake and taking moral responsibility of the entire sequence of events, offered to relinquish the office of the Principal. By order dated 01.06.2017 issued by the Provincial Superior, the competent authority, the Principal Sr. Archana was removed from the post of Principal of the petitioner institution and charge of the High Court of Madhya Pradesh Bench at Indore post has been handed over to Sister Rose Tom who was serving as Principal, Carmel School, Ratanpur, Bhopal. Apparently, the petitioner institution has taken its own remedial measures on the issue. It is submitted that in the aforesaid background there was no occasion for issuance of the impugned order. The impugned order is shockingly disproportionate to the mistake, if any, committed by the institution. The petitioner school and all the student studying therein cannot be subjected to such grossly harsh treatment by the respondents.
25. It is further submitted by the petitioner that all such documents which are claimed to be complaints and which have been filed with the reply as Annexure R-1& R-2 by the respondent nos.3 and 4 have never been supplied to the petitioner. The petitioner has never been informed and provided copies of any such alleged complaints which have allegedly been made by the parents and the students. The petitioner institution has never had any opportunity to controvert any of the allegations contended in the aforesaid documents, therefore, no reliance can be placed on the said documents and they cannot be read against the petitioner institution as it is blatant violation of the principle of natural justice that apart, all the allegations are contended in the aforesaid alleged complaints made by the parents and students are completely false and baseless. For an example, in a complaint dated 13.06.2016, filed by one Reena Choudhary, High Court of Madhya Pradesh Bench at Indore it is claimed that the petitioner institution has pressurized the student to withdraw from the school and was orally threatened that if she would obey the order, she would be failed in the examination. Such complaints would have been made at the behest of one Devendra Maheshwari who claimed to be leading the organization against the western minority institution. The said Reena Choudhary performed miserably in the examination; therefore, there was no question for the petitioner to threat her. She indeed failed in the examination. Her poor performance is reflected in her mark-sheet (Ex.P/16). False allegations have been made against the petitioner institution only to malign its image and only to be pressurized to grant promotion to the students even though they were failed in the final examination.
26. It is further contested by the petitioner that no such enquiry as claimed by the respondents have been conducted by any person or for that matter by the Principal of Government Higher Secondary School or no such report dated 04.07.2016 have ever been submitted by him. No notice of any such inquiry has ever been given to the petitioner institution. No enquiry has been done in the presence of the petitioner institution or any of its authority members. The copy of the alleged inquiry report has never been supplied to or brought to the knowledge of the petitioner. No opportunity of hearing was afforded to the petitioner in the alleged enquiry. None of the allegations which are claimed to be High Court of Madhya Pradesh Bench at Indore enquired into by Enquiry Officer have ever been brought to the knowledge of the petitioner. Thus, the entire exercise of conducting the alleged enquiry against the petitioner institution is vitiated for non-compliance of the principle of natural justice.
27. It is the allegation of the petitioner that reply of respondent nos.3 and 4 makes it apparent that it is the District Administration which has been putting pressure on the respondent board to cancel the affiliation of the petitioner institution. The action has been taken by the board only at the behest of the Collector. The entire action against the petitioner is colourable exercise of powers and is liable to be set aside on that count alone.
28. Further averment of the petitioner is that the Collector has no administrative control over private, un-aided minority educational institutions. The Collector has no power or authority to request the respondent board or to take action against the petitioner institution, therefore, the entire action against the petitioner is without jurisdiction. There is no authority in the District Education Officer to carry out inquiry of inspection by delegating his powers to another person. Even otherwise, the DEO does not have any power or authority to issue any instruction to inspect. The State Government grants recognition only up to the 8 th standard and this is not disputed, that the present dispute is with regard High Court of Madhya Pradesh Bench at Indore to the students of XIth standard, therefore, the State Authority had no role to play whatsoever.
29. It is also alleged by the petitioner that the State Authorities put pressure on the petitioner institution to grant admission to the students in the XIIth class despite the fact that they have failed in the XIth class and were not entitled to promote to the next class, without any authority to issue such direction to the petitioner institution to grant or not to grant admission to a particular student in a particular class. District authorities have no power or authority to interfere in the functioning of the petitioner institution. Mark-sheets of students particularly of Nitesh Kanojiya and Reena Choudhary would itself demonstrated the students are weak in academics and were not entitled to get promotion in the next class, but the authorities were putting pressure to promote them in the next class and when the petitioner institution did not succumbed to the pressure, they got annoyed and have recommended action against the petitioner institution. Entire action of the respondents against the petitioner is without jurisdiction and is liable to be set aside. Action of the respondent is completely misplaced and misconceived and without any authority or jurisdiction. It is illegal and arbitrary, based on irregularities and false documents, therefore, the petition deserve to be allowed.
High Court of Madhya Pradesh Bench at Indore
30. We have considered rival contentions of both the parties and have gone through the documents submitted by them.
31. The petitioner institution is disaffiliated by respondent no. 1&2 mainly on the two grounds that the Collector has recommended action on the ground that the petitioner institution granted false pass marks to the failing students and that the petitioner did not provide requisite information asked by the DEO. The relevant paras of the impugned order reads thus:
"AND WHEREAS, the District Collector, District Ujjain vide letter dated 11.08.2016 and 16.08.2016 has informed that the District Education Officer, District Ujjain has got inspected the said school on 26.06.2016 and found that the management of school has passed the failure Students by awarding false marks with intent to deceive and issued them transfer certificates. When these students have failed to secure admission in other school, they approached the said school to get the admission again but the school refused to give the admission which caused the dispute. The teachers of the School has been avoiding the marks in answer books of students arbitrarily which is against the Fidelity of the examination system.
And whereas, the manager of the school was served with a Show Cause Notice dated 20.10.2016 on the basis of information given by the District Collector, Ujjain and the reply of the school to Show Cause Notice submitted by the school vide its letter dated 23.11.2016 has been examined by the Board and the same has not been found satisfactory as the school did not give the information asked by the DEO office vide letter High Court of Madhya Pradesh Bench at Indore dated 29.7.2016 which is in violation of rule 13.3 of affiliation Bye-Laws of the board and committed Grave misconduct by deceiving the sanctity of the examination by giving false marks to some of the students.
And Whereas, from the above act of the school it is established that school has blatantly violated the rule 13.3 and 17.1&2a(xi) of affiliation bye-laws of the board.
Therefore, the Board after due consideration, has decided to withdraw the provisional affiliation granted to the school for Secondary School Examination and Senior Secondary School Certificate Examination of the board with immediate effect."
32. Rule 13.3 and 17.1&2a (xi) of the Affiliation Bye-laws as mentioned in the impugned order reads thus:
"13.3 The school shall supply information and returns called for by the Board/State/Central Government/Local Authority within the prescribed time given for its furnishing to the authority concerned.
17.1. Affiliation may be withdrawn by the Board either in a particular subject or in all subjects. Institution may be disaffiliated if the Board is satisfied that the school concerned is not fit to enjoy continuing affiliation to the Board.
17.2a. Procedure for withdrawal of affiliation may be initiated by the Board in case the schools are found guilty of following after reasonable notices:
(xi) Any other misconduct in connection with the admissions/examinations/any other area which in the High Court of Madhya Pradesh Bench at Indore opinion of the Board warrants immediate disaffiliation of the school."
33. Since reply to the Show Cause Notice issued by the Board, the petitioner is claiming that it had never forced any student to take Transfer Certificate. Some of the students have taken TCs as they were not able to cope up with syllabus of the CBSE Board. However, on the direction of the Collector, they asked them to take back the admission in the petitioner school but no one turned up rather they refused to take readmission in the petitioner school except one Nitesh Kanojiya. No complaints whatsoever have been brought to the notice of the petitioner institution. The school has supplied all information whenever asked by the DEO. The DEO had never made any inspection subsequent to the direction of the Collector for readmission to the students. Report of the inquiry allegedly made on the direction of the DEO has never been furnished to the institution. These facts either not specifically rebutted by the respondents or no record is produced to show the claim of the petitioner wrong.
34. Entire controversy between the parties revolves around the facts or allegations that the petitioner institution has granted false marks to one of the Student of XIth class namely Nitesh Kanojiya and issued transfer certificate in his favour. According to the petitioner this has been done on the request of the student and his mother bonafidely to save one full academic year of the student as he could not secure pass mark High Court of Madhya Pradesh Bench at Indore in his XIth class and was not entitled to promote in the next class in the petitioner's school, while according to the respondents, this action of the petitioner is not only against the affiliation bye-laws of the Board and also bye-laws relating to the examination but the action of the petitioner has also undermined the fidelity and sanctity of the examination system.
35. The petitioner has admitted its fault and has taken remedial action on its own and has removed the principal who was indulged in the alleged activity.
36. As the fault on its part is admitted by the petitioner and also the authority of the Board to pass the order of disaffiliation of any institution is not challenged, we therefore are not inclined to indulge in the allegations and counter allegations regarding the fact that on what basis, the board has taken action against the petitioner or has issued the impugned order or whether the Collector has any administrative control over private, un-aided minority educational institutions or not, whether the Collector has any power or authority to request the respondent board to take action against the petitioner institution or to send intimation or request to the Board to take action against any institution or the DEO has authority to direct any officer to enquired into any matter relating to irregularities in the institution affiliated to the Board or the information given by the Collector was High Court of Madhya Pradesh Bench at Indore biased, prejudiced, or influenced for some extraneous consideration or not, or the opportunity during the inquiry was granted to the petitioner or not. In view of the admission of the petitioner, all these questions take a back seat and lost its significance. Therefore, without scrutinizing them in detail which is otherwise also is a matter of fact; scrutiny of which is not permissible while exercising writ jurisdiction, we are of the opinion that the only question remained to consider for us is the balance between the allegation against the petitioner and the action taken by the respondent No.1 &2 as to whether in the attending facts and circumstances of the case, the action taken by the board is proportionate to the misconduct of the petitioner or not.
37. Here, it would be apt to consider first the "Principle of Proportionality". While considering the restrictions imposed on the right conferred by the Constitution of India under Article 19 (2) to (6), the Hon'ble Supreme Court in para 121 to 131 and para 194 of Subramaniam Swamy Vs. Union of India AIR 2016 SC 2728 has discussed test and considerations for examining the reasonableness on the basis of the "Principle of Proportionality". Referring various earlier judgements, the Court opined that a restriction imposed in any form has to be reasonable and to that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or excessive. It must possess a direct and proximate nexus with the object sought to be achieved. Whenever and wherever any High Court of Madhya Pradesh Bench at Indore restriction is imposed upon the right to freedom of speech and expression, it must be within the framework of the prescribed law, as subscribed by Article 19(2) of the Constitution. The limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.
38. The Court ruled that it is not possible to formulate an effective test which would enable the court to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant circumstances must be taken into consideration. The test of reasonableness cannot be determined by laying down any abstract standard or general pattern. It would depend upon the nature of the right which has been infringed or sought to be infringed. The ultimate "impact", that is, effect on the right has to be determined. The "impact doctrine" or the principle of "inevitable effect" or "inevitable consequence" stands in contradistinction to abuse or misuse of legislation or a statutory provision depending upon the circumstances of the case. The prevailing conditions of the time and the principles of proportionality of restraint are to be kept in mind by the court while adjudging the constitutionality of a provision regard being had to the nature of the right. The conception of social interest has to be borne in mind while considering reasonableness of the restriction imposed on a right.
High Court of Madhya Pradesh Bench at Indore
39. The Court further held that when a law limits a constitutional right, such limitation is constitutional if it is proportional. The law imposing restriction is proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose and such measures are necessary. Such limitations should not be arbitrary or of an excessive nature beyond what is required in the interest of the public. Reasonableness is judged with reference to the objective which the legislation seeks to achieve, and must not be in excess of that objective. Further, the reasonableness is examined in an objective manner from the stand point of the interest of the general public and not from the point of view of the person upon whom the restrictions are imposed.
40. The "Principle of Proportionality" in sentencing a crime-doer is well entrenched in criminal jurisprudence. Hon'ble the Supreme Court has considered this Principle time and again. While discussing about the concept of proportionality of the sentence and the points to be considered, the Court in para 18 of the judgement passed in Gopal Singh v. State of Uttarakhand (2013) 7 SCC 545 :
(AIR 2013 SC 3048), has expressed thus:-
"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The High Court of Madhya Pradesh Bench at Indore principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasis, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self- adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime in carcination meaning] has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the High Court of Madhya Pradesh Bench at Indore realm of fancy. It should be embedded in conceptual essence of just punishment."
41. While examining proportionality of any action what matters should be considered and also dealing with the issue as to whether the Court can interfere in such matters, the Apex Court in Rishi Kiran Logistics Pvt. Ltd v. Board of Trustees of Kandla Port Trust and Ors AIR 2014 SC 3358 has held that "the test to be adopted is these cases is "the court should consider whether something has gone wrong of a nature and degree which requires its intervention". The Court described in para 20 of the judgement that :
"..... Two other facets of irrationality may be mentioned.
i) It is open to the court to review the decision maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way cannot be upheld. .....
ii) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. ....."
42. While considering the proportionality of the punishment awarded in departmental enquiry and also the arguments that if allegations are proved by some evidence than it is a matter of fact and writ court has no jurisdiction in interfering in such matters, Hon'ble the Supreme Court in the case of Bhagat High Court of Madhya Pradesh Bench at Indore Ram vs. State of H.P. reported in (1983) 2 SCC 442, Ranjit Thakur vs. Union of India reported in (1987) 4 SCC 611 and U.P. SRTC vs. Mahesh Kumar Mishra reported in (2000) 3 SCC 450 has held that if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court then the Court can interfere in such cases and can mould the punishment.
43. In the wake of aforesaid legal position, now we will consider the reasonableness of the order of disaffiliation issued by the respondents.
44. Noteworthy hear that this Court, while considering the plea of the student Nitesh Kanojiya in Writ Petition No.4562/2016 has already considered as to whether the alleged act was done by the petitioner with dishonest intention and did not find any malafide of the petitioner in granting pass mark-sheet and transfer certificate to the petitioner Nitesh Kanojiya.
45. In Writ Petition No.4562/2016 the Court observed that :
(para nos.7 to 11) "7. The present writ petition has been filed putting forth a concocted story that the application for transfer certificate was prepared fraudulently or the signature of the petitioner's mother was obtained on blank papers and prays for dismissal of the writ petition.
8. As per norms of the CBSE, the list of candidates for Class XII examination of 2016-2017 batch was required to be High Court of Madhya Pradesh Bench at Indore furnished to the CBSE latest by 24.10.2016. The respondent No.4 submitted a list of candidates online on 17.10.2016. The said list does not contain the name of the petitioner. Only regular students to be eligible to take final examination, they are required to have a minimum of 75% attendance. The respondent No.4 has already conducted two terminal examinations, which are mandatorily required to be undertaken by the students to be eligible for the final examination.
9. For these reasons, now at this stage, no admission in Class XII, as prayed can be granted to the petitioner as a regular student. Till now, no admission has been granted to anyone. It is a common knowledge that once a student is given an admission in any education institution, he is not required to submit fresh application forms after he passes a class for his admission to the next higher class. It is also a common knowledge that once a student is given admission in any educational institution, the same continues class after class until he leaves the school. In the facts and circumstances, it is difficult to accept that after a student passed his Class XI his admission to the next higher class, ie., XII Class would be a fresh admission or readmission.
Nothing is on record to show that the private school has the power to regulate admission by prescribing the criterion of cut- off level of marks under the rules framed by the Central Board of Secondary Education and on that basis may deny admission to the students of its own school to Class XII who had passed Class XI, Central Board of Secondary Education with marks less than 50 per cent in aggregate. Thus, we are of the view that on passing the examination promotion from one class to next High Court of Madhya Pradesh Bench at Indore higher class does not involve any fresh admission or re- admission in the school.
10. As per reply of the school, the petitioner was not able to cope with the requirements of the curriculum and, therefore, his mother applied for transfer certificate in the month of April, 2016.
11. We have also perused the answer-sheets of the petitioner in respect of subject Accountancy, Business Studies, English, Economics and Information Practices. For the aforesaid subjects, he has received, 12, 18 ½ , 12, 19, 18 ½ and 23 marks out of 90 and 80 respectively. He was declared failed. These exams were held in the month of March, 2016 and, therefore, his mother applied for transfer certificate. At the time of filing of the application of the transfer certificate, a request was made to declare him as pass, so that he may get admission in some other school and, therefore, a mark-sheet of pass was issued by the Principal of school on 09.04.2016. As per mark-sheet in term 1, 2 and 3, he was graded D, C-2 and C-1 and promoted to Class XII. After receipt of mark-sheet(s) by which he was declared pass and promoted to Class XII, the petitioner and her mother became more wiser and started making complaints against the school before the Collector in "public hearing" and, thereafter by way of this writ petition. Even if we accept the mark-sheet of 09.04.2016 by which the petitioner has been declared pass now at this stage, no admission can be granted in Class XII because petitioner will not complete 75% of attendance and forms have already been forwarded to the Central Board of Secondary Education in the month of October, 2016 i.e., much prior to the filing of the writ petition. During High Court of Madhya Pradesh Bench at Indore the course of the arguments, learned counsel for the respondent No.4/School made a statement at bar that school is ready to grant admission in Class XI because as per valuation, of his answer sheet, he was declared as fail by the school in the month of March, 2016."
46. Considering all the facts and circumstances, this Court held that the petition has no merit and has dismissed the petition.
47. Thus, the basis of the action taken by the board has already been examined by this Court while considering the writ petition 4562/2016 and this Court has not found malafide in the alleged action of the petitioner.
48. In the present case the petitioner has already taken internal remedial measures, earring official/concerned principal, who was found indulged in granting pass mark to the failing student has already been removed from the job, no malafide was found in the action of the petitioner by this Court, the action is taken by the board against the petitioner on the basis of one mistake, nothing is there to show that in the past, at any point of time, the petitioner was found indulged in any such irregularities, misconduct, misdeed or malpractices, the action has great adverse impact on the future of the 3050 students pursuing their studies in the petitioner institution and on the future of 84 teaching and 23 supporting staff as well, their future is hanged in the balance, entire institute is being penalized for the fault of a person as High Court of Madhya Pradesh Bench at Indore nothing is on record and also this is not the allegation or averment of the respondent Board that other officials or office bearers were also involved in the alleged wrong doing.
49. The allegation of the petitioner institution is that the entire exercise is done by the local authorities for extraneous reasons. The local authorities were putting pressure to give admissions to their recommended students. They accommodated most of them but it was not possible to accommodate all such recommendations. Annoyed by this, the district authorities have recommended action on false and frivolous grounds. 10 out of hundreds of such recommendation have been filed by the petitioner as Annexure P/13. The respondent No.3&4 have not denied these recommendations.
50. In view of the aforesaid facts and circumstances of the case the action taken by the respondent appears to be highly disproportionate, excessively harsh and not commensurate with the gravity of the allegation made against the petitioner institution. If one of the employees of the petitioner is found involved in any of mischief or wrong doing then whole institution cannot be and should not be penalized for such mischief particularly, when the internal remedial measures have already been taken by the institution and the person concerned has already been removed from the post by the petitioner institution itself and that apart malafide was not High Court of Madhya Pradesh Bench at Indore found behind the alleged action and more so when this was the first such fault or mistake on the part of the petitioner institution. Though this is denied by the petitioner that some information asked by the DEO was not provided by the petitioner but if we take it as true, even then this lapse on the part of the petitioner does not warrant so harsh or extreme action.
51. The petitioner institute is situated within the jurisdiction of this Court and the order is served and has adverse effect on the institution situated in Ujjain. Therefore, this Court has every jurisdiction to consider the validity of the action taken by the respondent board. Thus, this ground of the respondents also has no merit.
52. Therefore, we are of the considered view that the decision of the board of disaffiliating the petitioner institution warrants and needs interference of this Court. Consequently, the petition is allowed. The impugned order issued by the respondent no.2 dated 02/03.02.2017 disaffiliating the petitioner institution is hereby set aside. However, no order as to the cost.
(P.K. Jaiswal) (Virender Singh)
Judge Judge
amit
Digitally signed by Amit
Kumar
Date: 2018.01.18
11:28:09 -08'00'
High Court of Madhya Pradesh
Bench at Indore