Patna High Court - Orders
The Chairman,Bihar School Examination ... vs Ram Shrestha Bhagat & Anr on 9 August, 2011
Bench: Chief Justice, Birendra Prasad Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1066 of 2011
In
Civil Writ Jurisdiction Case No. 2256 of 2011
And
Miscellaneous Jurisdiction Case No. 1108 of 2011
With
Interlocutory Application No. 4935 of 2011
In
Letters Patent Appeal No. 1066 of 2011
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1. The Chairman, Bihar School Examination Board, Budh Marg, Patna.
2. The Secretary, Bihar School Examination Board, Budh Marg, Patna.
3. The Deputy Secretary (College Establishment), Bihar School
Examination Board ( Higher Secondary), Bihar, Patna.
4. The Director (Education), Bihar School Examination Board (Higher
Secondary), Budh Marg, Patna.
.... .... Appellant/s
Versus
1. Ram Shrestha Bhagat, son of Late Ram Bilash Bhagat, resident of
Village-Parsa Malind, P.S.- Sonbarsa, District-Sitamarhi, Present
Working as Principal, M.K. College, Bhutahi, Sitamarhi.
2. The State of Bihar through the Principal Secretary, HRD Department,
Govt. of Bihar, Patna.
.... .... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Lalit Kishore, Sr. Advocate with
Mr. Piyush Lall, Advocate.
For the Respondent/s : Mr. Mithilesh Kuamr Rai, Advocate.
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
03. 09-08-2011This Appeal by the Bihar School Examination Board (hereinafter referred to as "the Board") is preferred under Clause Patna High Court LPA No.1066 of 2011 (3) dt.09-08-2011 2 10 of the Letters Patent against the judgment and order dated 4 th April 2011 passed by the learned single Judge in above C.W.J.C. No. 2256 of 2011 and M.J.C. No. 1108 of 2011 in so far as the Board has been directed to hold special Examination for 128 students of Arts faculty admitted by the respondent- M.K. College, Bhutahi, District- Sitamarhi ( hereinafter referred to as "the College") for 2009-11 academic session. The Board has also challenged the finding that the officers of the Board are guilty of contempt of Court and have been visited with the punishment of fine of Rs. 1000/-.
Pursuant to a press note published by the Board on 24th July 2009, the respondent College applied for permission for one more section of 128 students for intermediate education (+2) in Arts faculty for the academic session 2009-11. In anticipation of the permission the College admitted 128 students. The anticipated permission, however, was not received. Instead, under communication dated 27th September 2010 the College was informed that the permission for one more section for 2009-11 academic session was refused.
Feeling aggrieved, the College filed C.W.J.C. No. 18773 of 2010 under Article 226 of the Constitution. The said petition came to be disposed of on 10th December 2010. The learned single Judge relied upon the press note dated 24th July 2009 and concession made by the learned advocate representing the Board to the effect that for one more section of 128 students for academic session 2009-11, no permission was required by the College. The learned single judge directed the Board to issue necessary permission and OMR certificate to the College for one Section of 128 students for the academic session 2009-11.
Feeling aggrieved, the Board filed above M.J.C. No. 58 of Patna High Court LPA No.1066 of 2011 (3) dt.09-08-2011 3 2011 for review of the above referred order dated 10th December 2010 made in C.W.J.C. No. 18773 of 2010. According to the Board the press note dated 24th July 2009 specifically referred to constituent colleges which had received permission for one more section for the academic session 2008-10. For the colleges other than the constituent colleges, application for permission in the prescribed proforma was required. The College, being an affiliated college and not a constituent college, was required to make application and obtain permission. Pending the said review application the College filed M.J.C. No. 317 of 2011 alleging non compliance of the above referred order dated 10 th December 2010. The College also filed above C.W.J.C. No. 2256 of 2011 to challenge the exam schedule published by the Board. By order dated 3rd March 2011 made pending the writ petition, the learned single Judge directed the Board to provisionally allow 128 students of one more section of the Arts faculty of the College to appear in the examination commencing from 8th March 2011. The said order was challenged by the Board in Letters Patent Appeal No. 445 of 2011. By order dated 14th March 2011 the said Letters Patent Appeal was disposed of after recording the concession on behalf of the Board that "in the event the respondent college succeeds, the Board shall conduct a special examination for those 128 students." The College filed M.J.C. No. 1108 of 2011 alleging non compliance of the order dated 3rd March 2011.
By the impugned common judgment and order the learned single Judge has rejected the claim of the College for permission for one more section of 128 students in Arts faculty. However, the Board has been directed to hold special examination for those 128 students as assured by the Board before the Letters Patent Bench and has also held that the Patna High Court LPA No.1066 of 2011 (3) dt.09-08-2011 4 Officers of the Board were guilty of contempt of the Court for not holding such examination and has punished them with a fine of Rs.1000/- each. It is the aforesaid two directions; first, to hold special examination for 128 students; and second, the imposition of fine upon the Officers of the Board which are under challenge before us.
Learned Additional Advocate General Mr. Lalit Kishore has appeared for the Board. He has submitted that the statement made by him on behalf of the Board recorded in the order dated 14th March 2011 was circumscribed i.e., only in case the respondent College succeeded in the writ petition, a special examination would be held for those 128 students. Now that the College has failed in the writ petition; the College has not received permission for one extra section of 128 students for the academic session 2009-11, the question of holding special examination for those 128 students does not arise. Neither the Officers of the Board are in contempt of the Court; nor should they be visited with the punishment of imposition of fine as has been done by the learned single judge.
In support of his arguments Mr. Lalit Kishore has relied upon the judgments of the Hon‟ble Supreme Court in the matters of State of Tamil Nadu and others Vs. St. Joseph Teachers Training Institute and another [(1991) 3 SCC 87] and Central Board of Secondary Education Vs. Nikhil Gulati and another [(1998) 3 SCC 5].
In the matter of St. Joseph Teachers Training Institute (supra) the Hon‟ble Supreme Court deprecated the practice of allowing the students of an unrecognized institute to take Board Examination on humanitarian grounds. The Court observed "Courts cannot grant relief to a party on Patna High Court LPA No.1066 of 2011 (3) dt.09-08-2011 5 humanitarian grounds contrary to law. Since the students of unrecognized institutions were legally not entitled to appear at the examination held by the Education Department of the Government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. The directions issued by the Full Bench are destructive of the rule of law". In the matter of Nikhil Gulati (supra) also the same view was reiterated. Once again the Court deprecated the practice of allowing ineligible students to undertake Board and/or University Examination. The Court observed " Such casual discretions by the Court is nothing but an abuse of the process; more so when the High Court at its level itself becomes conscious that the decision was wrong and was not worth repeating as a precedent..... It should better desist from passing such orders, for it puts the "Rule of Law" to a mockery, and promotes rather the "Rule of Man".
The Appeal is contested by learned advocate Mr. Mithilesh Kumar Rai. He has submitted that for academic session 2008-2010, the permission was received in the year 2009. Similarly for the academic session 2009-11 the College believed that the permission would be accorded in 2010. In anticipation of the permission the College had admitted 128 students for one extra section for 2009-11 academic session. The College was, therefore, entitled to the permission on the principle of legitimate expectation.
Learned single Judge has categorically held that C.W.J.C. No. 18773 of 2010 was disposed of on 10th December 2010 on wrong reading of the press note dated 24th July 2009. The College, not being a constituent college, was required to apply for and to receive specific permission for adding one Patna High Court LPA No.1066 of 2011 (3) dt.09-08-2011 6 section of 128 students for the academic session 2009-11. The learned single Judge has also observed that mere submission of application for increase of seats did not create a right unto the College to admit students and to start extra section. The College did not establish before the court that it had improved infrastructure to accommodate one more section of 128 students. On the contrary, the learned single judge has observed, "thus, although the college had continued with one extra section, opened in 2008, for almost one year, but it did not improve its infrastructures and did not engage any extra teacher to meet the requirement of increased strength of students. This makes it apparent that the college was only interested in admitting more and more students for its financial gains but without increasing facilities and infrastructure and to ensure proper teaching to the students. In the circumstances, no relief can be granted to the petitioner or the college in this writ petition as against the Board".
The learned single Judge having thus rejected the claim of the College for permission for one extra section of 128 students for academic session 2009-11, directed the Board to hold special examination for those 128 students under the principle of „legitimate expectation‟ and on account of the statement made on behalf of the Board in course of hearing of the Letters Patent Appeal No. 445 of 2011, recorded in the order dated 14th March 2011.
We do agree with the learned Additional Advocate General Mr. Lilit Kishore. Unless the College succeeded in the writ petition, the Board was not obliged to hold special examination for those 128 students. In our opinion, the learned single judge having refused to grant relief to the College, has Patna High Court LPA No.1066 of 2011 (3) dt.09-08-2011 7 erred in directing the Board to hold special examination following the principle of „legitimate expectation‟ without there being the plea of legitimate expectation raised by the College. The plea of „legitimate expectation‟ is required to be specifically set up in the pleadings. In absence of such plea set up by the College, no relief could have been granted to the college in respect of those 128 students.
In the present case it is indisputable that the College admitted 128 students without permission of the Board. The said section of 128 students was, therefore, unrecognized for the purpose of the Board. The students of such unrecognized class cannot be permitted to take the Board Examination.
As we have held that the Board was not required to hold special examination until the College succeeded in the writ petition and the college having failed in the writ petition, officers of the Board cannot be held liable for contempt of the court. Consequently the order holding such officers guilty of contempt of the Court and imposition of fine is not sustainable.
For the aforesaid reasons, we allow this Appeal to the extent that the observation made and directions issued by the learned single Judge in paragraphs 25 and 37 of the judgment are set aside.
The parties will bear their own cost.
Interlocutory Application stands disposed of.
(R.M. Doshit, CJ) BTiwary/Devendra /- (Birendra Prasad Verma, J) A.F.R.