Calcutta High Court (Appellete Side)
Managing Committee Kankinara High ... vs West Bengal Board Of Secondary ... on 21 February, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
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21.02.2014.
S.D.
W.P. No. 3786 (W) of 2014
With
ASTA 37 of 2014
Managing Committee Kankinara High School & Anr.
Versus
West Bengal Board of Secondary Education & Ors.
Mr. Arbinda Chatterjee
Mr. Ashim Halder
Mrs. Moupiya De Basu
....For the Petitioners.
Mr. Ashok Banerjee, ld. Government Pleader
Mr. S.K. Mitra
......For the Board.
Mr. Subir Sanyal
Mr. Suthirtha Dad
...For the newly added respondents.
Considering the urgency involved in this matter as also the order passed by a Division Bench of this High Court in the matter of the West Bengal Board of Secondary Education vs. Ram Kumar Bharti and Others (In re: AST No. 250 of 2013 and application bearing ASTA No. 121 of 2013, this matter is taken up for hearing treating the same as on day's list with the consent of the parties.
In re: ASTA 37 of 2014 2 This is an application for addition of guardians of 379 students of the Kankinara High school, District - North 24-Parganas. The subject matter of challenge involved in the writ application is the action on the part of the West Bengal Board of Secondary Education not to allow the aforesaid students to participate in the ensuing Madhayamik Pariksha (Higher Secondary Examination), 2014.
Having heard the learned counsel appearing for the respective parties as also after considering the facts and circumstance of the case, I find that the above writ application was initially dismissed in limine by an order dated February 10, 2014. An appeal was preferred against the above order and the above appeal was disposed of on February 20, 2014 granting leave to the appellant to implead guardians of 379 students in this writ application and to take up this writ application on merit if such prayer for addition of parties is made before this Court.
Having heard the learned counsel appearing for the respective parties, I find that the presence of the aforesaid parties are necessary for full and complete adjudication of issues involved in this case.
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In view of the above, this application is allowed with a direction upon the writ petitioners to add the aforesaid guardians of 379 students as party respondents to this proceeding. The petitioners are further directed to supply the printed sheets containing the names of those guardians of 379 students to the department for bringing the same on record of this writ application.
This application is, thus, disposed of. There will, however, be no order as to costs.
In re: W.P. No. 3786 (W) of 2014 This writ application is filed by the Managing Committee of Kankinara High School, District - North 24-Parganas for a direction upon the West Bengal Board of Secondary Education to allow 413 students of their schools to participate in the ensuing Madhyamik Pariksha (Secondary Examination) 2014. The fact of the above case is set out below in a nutshell:-
The authority of the above school submitted requisite papers in respect of the 883 students in the month of September 2012, for registering their 4 names for appearing in the ensuing Madhyamik pariksha (Secondary Examination), 2014 to be conducted by respondent Board. On September 26, 2013, the respondent Board received a communication from the teacher-in-charge of the school under reference with the information of bona fide students reading in class - X of the above school together with true copies of the attendance register containing the particulars of 475 bona fide students. In September, 2013, the respondent Board sent the scrutiny List of 470 students out of the aforesaid students to the petitioner school for participating in the above ensuing examination. The names of 413 students did not appear in the above scrutiny list.
The guardians of three wards; namely;
(i)Ram Kumar Bharti, guardian of Ashis Kr. Bharti,
(ii) Gopal Shaw , guardian of Suraj Kr. Shaw & (iii) Raj Kumar Hazra, guardian of Rishab Kr. Hazra filed an application under Article 226 of the Constitution of India in the matter of Ram Kumar Bharti & Ors.
Vs. State of West Bengal & Ors. (In re: W.P.32131(W) of 2013). On December 16, 2013, an order was passed in the above writ application directing the 5 respondent Board to issue registration certificate in respect of 413 students including the aforesaid three students for registration of their names to participate in the ensuing examination.
The West Bengal Board of Secondary Education preferred an appeal assailing the above order in the matter of West Bengal Board of Secondary Education & Ors. Vs. Ram Kr. Bharti & Ors. (In re: AST 250 of 2013 and an application bearing ASTA 121 of 2013), a Division Bench of this Court disposed of the above appeal along with the following directions:
"In our view, if the admission of the petitioners' sons in Class-IX of the said school is found to be regular in terms of the aforesaid office circular No. S/141 dated 4th July, 2008 issued by the Secretary of the West Bengal Board of Secondary Education, then their registration cannot be denied by the Board. On the contrary, if it is found that their admission was irregular and/or not in accordance with the said circular, the Board may refuse to register them.
Accordingly, we feel that before issuing any mandatory order, directing the Board to issue the Registration Certificates in favour of the petitioners' sons, an enquiry is needed by the Board for ascertaining the legalities of the admission of these three students in Class-IX of the said school.6
If ultimately after holding such enquiry, it is found that those three students were admitted in Class-IX in the said school in conformity with the provisions contained in the said aforesaid Office Circular and/or any other relevant Circulars and/or Regulations relating to admission issued by the competent authority, the Board should issue their Registration Certificates immediately after holding such enquiry.
Be it mentioned here that since these students attended the classes in the said school regularly or not, or they appeared in the examination held by the school or not and/or their eligibility to appear in the Madhymik Pariksha (S.E) are not relevant factors for deciding the present issue as to whether they will be registered with the Board or not, the Board, while taking its decision on the present subject should not be swayed by any other factor save and except the legalities of their admission in class IX in the said school.
In the event, the Board ultimately decides to reject their applications, the Board is required to pass a reasoned order in support of its conclusion and intimate its decision to the petitioners.
Such exercise should be completed and the decision to be taken by the Board on the said issue should be communicated to the school as well as the petitioners positively by 28th January, 2014.
While making such exercise, Board should also bear in mind that despite certain irregularities noticed by the Board as pointed out by Mr. Banerjee, 7 learned senior counsel before us, the Board permitted 647 students of the said Institution to be registered and allowed them to appear in the final Madhyamik Examination in 2011. Similarly, 822 students of the said Institution were registered by the Board which allowed them to appear in the final Madhyamik Pariksha in 2012 from the said Institution as regular candidates. Similarly in 2013, the Board registered 806 students of the said Institution and allowed them to appear in the final Madhyamik Examination held in 2013, even though the Administrator appointed over the said school expressed his doubt about the bonafideness of bulk of such students who were so permitted to appear in the said Madhyamik Examination in 2013.
By consent of the parties, we fix 20th January, 2014 at 11 a.m. for holding inspection of the school's records by the Board Officials relating to the admission of those students. Since the date of holding such inspection is fixed by this Court with consent of the parties, no formal notice about the date of holding such inspection need be served by the Board upon the school authority.
The school authorities are directed to co-operate with the Board Officials in course of holding such inspection of the official records in the school premises and they should also supply all relevant documents relating to the admission of those three students to the Board Officials without fail.
It is further made clear that in the event the entire exercise including communication of its decision cannot be completed by the Board by 28th January, 2014, then it will be presumed that 8 Board has no objection in issuing the Registration Certificates in favour of those three students and in that event the Board will register them as students of the said Institution in Class-IX for the year of 2012 and issue Registration Certificates in their favour to the school authorities within 30th January, 2014.
Needless to mention here that in the event the Board ultimately registers these three candidates as students of the said Institution in Class-IX therein in 2012, then the Board will allow the said students to fill up their respective forms for appearing in the Madhyamik Pariksha (S.E.) 2014 provided they fulfil the conditions for appearing in the Madhyamik Examination in 2014 as per the Examination Regulations issued by the Board on 3rd July, 2001 vide Office Circular No. S/488.
The writ petition is thus disposed of.
Both the appeal and the application are also disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the learned advocate for the petitioners immediately.
( Jyotirmay Bhattacharya, J ) ( Ishan Chandra Das, J.)"
The respondent Board in compliance of the above order passed an order under its memo no. 14/Admn./14(4) dated January 28, 2014, the same is quoted below:-
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"Pursuant to the order of the Hon'ble High Court in AST No.250/2013 arising out of W.P.32131(W) of 2013 dated 10.01.2014 and as per report of the Enquiry Committee, constituted under order No.09/Admn/14 dated 17.01.2014 and the Administrator of the Board in regard to the legality of the admission of the above named students(petitioners) of Class-IX of 2012 of the said school, the undersigned has to intimate him the following decisions of the Board for his kind perusal.
The relevant Admission Register of Class IX was duly consulted and it was found that the names of those students appear in serial no. 430,446 and 450 and they were admitted to Class-IX on 11.04.2012 & 16.04.2012 respectively taking transfer certificates from different schools. But the admission of the said students was taken in the month of April by the school authority i.e. beyond the prescribed last date of admission i.e. 16th March, 2012 for academic session, 2012 without the permission from the Board. As such, there is no scope to issue registration in favour of them as their admission in Class IX is not legal in terms of Clause 4, serial no.1 of Board's Circular No.S/58 dated 10.03.2010."
It is submitted by Mr. Lakshmi Gupta, learned Senior Advocate appearing on behalf of the petitioners that the cause of rejecting the names of 10 413 students out of 883 students can be ascertained from the order dated January 28, 2014 passed by the respondent Board in respect of three students. It is further submitted by Mr. Gupta that the basis of that order was a Board Circular No. S/58 dated, March 10, 2010. After drawing the attention of this Court towards the above Circular read with the Provisions of Procedure for holding election of the Managing Committee of Non-Government Institutions (Aided and Unaided) framed in exercise of powers conferred under Rule 9 read with Rule 6 and 6A of the Management of Recognized Non-Government Institutions (Aided and Unaided) Rules 1969, it is submitted by Mr. Gupta that the last date prescribed in the above procedure was amended by Board Circular No. s/58 dated March 10, 2010. According to Mr. Gupta, a plain reading of Note (ii) of Clause 8 of the above Procedure, it appears that the last date of admission up to Class IX was prescribed as March 16 of each and every year. According to Mr. Gupta, it relates to the enrolment of names of the guardians in the voters' list for the election of the Managing Committee of the Institutions. Drawing the attention of this Court towards the Note below 11 the above provision it is submitted that first admission and admission on transfer should have been considered in accordance with the provisions laid down in the Board Circular No. S/851, dated December 02, 1988. It is also submitted by Mr. Gupta that the above date prescribed in the above Board Circular was subsequently amended in the Board Circular No. S/141, dated July 04, 2008 as July 15 of each and every year. It is submitted by Mr. Gupta that in view of the above Provision, the cause of rejection of the names of the three students read in class X to participate in the examination cannot be sustained in law.
The above submissions made on behalf of the petitioners are repeated and reiterated by Mr. Subir Sanyal, learned counsel appearing for the newly added respondents.
It is submitted by the learned Government Pleader appearing on behalf of the Respondent Board that the Board acted on the basis of the informations supplied by the Teacher-in-Charge of the school under reference. Names of 475 bona fide students were sent to the Respondent Board with a forwarding letter dated July 26, 2013 annexing the 12 true copies of relevant Attendance Register of the students concerned for issuing Registration Certificate in their favour as also to enroll their names as regular students for participating in the ensuing examination. The Board acted on the basis of such informations. Therefore, the grievance of the petitioner school cannot be examined on its merit in this writ application which is filed just a few days before the commencement of the above examination.
I have heard the learned counsel appearing for the respective parties at length and I have considered the facts and circumstances of the case. Though it is not in dispute that the petitioner school sent a list of 883 students for issuing Registration Certificate in their favour in the year 2012, the Board acted on the basis of the subsequent informations supplied by the Teacher-in-Charge of that school on July 26, 2013. Prescribed forms for scrutiny of 470 regular students were sent to the petitioner school as back as in September 2013. No information was sent to the respondent Board agitating their grievance in respect of the remaining students.
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Admittedly, the Board acted on the basis of the communication dated July 26, 2013 issued by the Teacher-in-Charge of the petitioner school. Though an attempt is made on behalf of the petitioner school to submit that the school was under the management of an Administrator, who was nominated by the respondent Board for the period up to November 2013. No material is produced before this Court to show that after taking over of the Management of the school any resolution was adopted in the meeting of the present Managing Committee of the petitioner school or any information was sent to the respondent Board for consideration of the cases of the remaining 413 students.
It is an admitted fact that the respondent Board acted or changed their position on the basis of the informations supplied by the teacher-in- charge of the petitioner school in the communication dated July 26, 2013. Subsequently, at no point of time the respondent Board was requested by the petitioner school to consider and/or reconsider the case of remaining 413 students to allow them to appear in the ensuing examination under reference. In view of the above admitted facts, the petitioner 14 school is estopped from re-opening the above issue just a few days before the ensuing examination. The above principle of Law has been decided in the decision of Union of India vs. Godfrey Phillips India Ltd., reported in (1985) 4 SCC 369 and the relevant portions of the above decision are set out below:-
"Now the doctrine of promissory estoppel is well established in the administrative law of India. It represents a principle evolved by equity to avoid injustice and, though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is the interposition of equity which has always, true to its form, stepped in to mitigate the rigour of strict law. This doctrine, though of ancient vintage, was rescued from obscurity by the decision of Mr. Justice Denning as he then was, in his celebrated judgment in Central London Property Trust Ltd. v. High Trees House Ltd. The true pinciple of promossory estoppel is that where one party has by his word or conduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party, the promise or representation would be binding on the party making it and he would not entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings which have taken place between the parties. It has often been said in England that the doctrine of promissory estoppel cannot itself be the basis of an action: it can only be a shield and not a sword: but the law in India has gone far ahead 15 of the narrow position adopted in England and as a result of the decision of this Court in Motilal Padampat Sugar Mills v. State of U.P. it is now well settled that the doctrine of promissory estoppel is not limited in its application only to defence but it can also found a cause of action. The decision of this Court in Motilal Sugar Mills case contains an exhaustive discussion of the doctrine of promissory estoppel and we find ourselves wholly in agreement with the various parameters of this doctrine outlined in that decision."
(Emphasis Supplied).
In view of the above settled principles of law, while examining the facts and circumstances of the case, I find that the Board acted on the basis of the informations supplied by the petitioner school for entertaining the cases of 470 students' participation in the ensuing Madhayamik Pariksha (Secondary Examination), 2014.
It is necessary to point out that the fact of sending the above communication dated July 26, 2013 to the respondent Board by the teacher-in-charge of the petitioner school has not been disclosed in this writ application.
Therefore, no relief can be granted to them in view of the settled principles of law as discussed hereinabove.
This writ application is dismissed. There will, however, be no order as to costs. 16 Let urgent photostat certified copies of this order, if applied for, be given to the parties on usual undertaking.
(Debasish Kar Gupta, J.)