Patna High Court - Orders
The Chairman ,Bihar School Examination ... vs Ram Shrestha Bhagat & Ors on 4 April, 2011
Author: Jayanandan Singh
Bench: Jayanandan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
MJC No.317 of 2011
Ram Shrestha Bhagat, Son of late Ram Bilash Bhagat,
R/O Village-Parsa Malind, P.S.-Sonbarsa, District-
Sitamarhi, presently working as Principal,
M.K.College, Bhutahi, Sitamarhi ............Petitioner
Versus
1. The State Of Bihar.
2. The Bihar School Examination Board, Patna through
its Chairman, namely Sri Awadh Kishore Prasad Yadav,
S/o name not known to the petitioner.
3. The Secretary, Bihar School Examination Board, Budh
Marg, Patna, namely Sri Anup Kumar Sinha,
S/o name not known to the petitioner.
.........Opp. Parties.
with
CWJC No.2256 of 2011
Ram Shrestha Bhagat Son of late Ram Bilash Bhagat,
R/O Village-Parsa Malind, P.S.-Sonbarsa, District-
Sitamarhi, presently working as Principal
M.K.College, Bhutahi, Sitamarhi. ............Petitioner
Versus
1. The State Of Bihar through the Principal Secretary,
H.R.D. Deptt., Govt. of Bihar, Patna
2. The Chairman, Bihar School Examination Board, Budh Marg,
Patna.
3. The Secretary, Bihar School Examination Board, Patna.
4. The Deputy Secretary (College Establishment),
Bihar School Examination Board (Higher Secondary)
Bihar, Patna.
5. The Director (Educational), Bihar School Examination
Board (Higher Secondary), Budh Marg, Patna.
...............Respondents.
with
C. REV. No.58 of 2011
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 (Educational), Bihar School Examination
Board (Higher Secondary), Budh Marg, Patna.
...............Petitioners/Respondents.
Versus
1. Ram Shrestha Bhagat Son of late Ram Bilash Bhagat, R/O
Village-Parsa Malind, P.S.-Sonbarsa, District-Sitamarhi,
presently working as Principal M.K.College, Bhutahi,
Sitamarhi.
2. The State of Bihar. ..................Respondents.
with
MJC No.1108 of 2011
Ram Shrestha Bhagat, Son of late Ram Bilash Bhagat,
R/O Village-Parsa Malind, P.S.-Sonbarsa, District-
Sitamarhi, presently working as Principal
M.K.College, Bhutahi, Sitamarhi ...............Petitioner
Versus
1. The State Of Bihar.
2
2. The Bihar School Examination Board, Patna through
its Chairman, namely Sri Awadh Kishore Prasad Yadav,
S/o name not known to the petitioner.
3. The Secretary, Bihar School Examination Board, Budh
Marg, Patna, namely Sri Anup Kumar Sinha, S/o
name not known to the petitioner.
...............Opp. Parties.
-----------
For the Petitioner : M/s Mithilesh Kumar Rai and
Arun Kumar Singh, Adv.
For B.S.Exam.Board : M/s Arshad Alam, Adv.
P R E S E N T
HON'BLE MR.JUSTICE JAYANANDAN SINGH
Jayanandan Singh,J. : All these four cases, although of different
nature, have been taken up together for being
disposed of by a common order as all of them are
essentially interlinked and arise out of an
earlier order dated 10.12.2010 passed by this
Court in C.W.J.C.No.18773 of 2010.
2. In fact, the present round of litigation in
this Court started when the petitioner, claiming
himself to be Principal of M.K.College, Bhutahi,
Sitamarhi, filed C.W.J.C.No.18773 of 2010 in this
Court on 15th November, 2010. In the writ
application, he challenged a communication from
the Board, contained in letter no.1902/D/10 dated
27.9.2010, by which, request of the College, made by letter no. 65/10 dated 30.7.2010, for permission to start three sections of Arts faculty, with 128 students each, for session 2009- 11, was rejected.
3. Case of the petitioner was that by Office Order of the Board contained in Memo No.341 dated 23.6.2009 altogether 111 Colleges were allowed extension of seats for the Session 2008-10, with 3 permission to start extra sections in concerned faculties. By this order petitioner‟s College was also allowed one extra section of Arts faculty for the said Session 2008-10. It was contended that thereafter Board had issued a press communiqué on 24.7.2009 (Annexure-10) inviting applications by 7.8.2009 for permission for increase of seat in +2 class for session 2009-11. Accordingly, petitioner submitted an application with the Board for extension of seats for 2009-11 Session. In the meanwhile, the students of additional section for Sessions 2008-10 had appeared in the 11th Examination. Hence, petitioner forwarded their result to the Board. It was asserted that, for the purpose of extension of one more section for Sessions 2009-11, petitioner had submitted request in the requisite form and with all requisite information and particulars. Grievance of the petitioner was that, by impugned communication dated 27.9.2010, Board had rejected the application of the petitioner for grant of permission for three more sections for session 2009-11 in one line, without disclosing the reasons or without disclosing the shortfalls in the information submitted by the petitioner for the purpose in the prescribed format.
4. When the case was taken up on 10.12.2010, upon being called upon, learned counsel for the Board made following submissions before this Court:-
"Mr.Alam, learned counsel appearing for 4 the Board submits that so far one Section of 128 students are concerned, College already stands permitted by the said Newspaper notice, as contained in Annexure-10. For opening of further two Sections of 128 students each, the College management should contact the Board and furnish further informations to the Board as may be required to enable it to consider the request for permission for opening two more Sections of Arts faculty."
5. In the circumstances, this Court disposed of the writ application with liberty to the petitioner or the Secretary of the Managing Committee of the College to approach the Board, whereupon the Board was directed to inform him about the deficiency in the infrastructure of the College which may be coming in its way in getting permission for opening two more sections, which the College could remove within two weeks to enable the Board to consider the request. However, in view of the stand of the learned counsel for the parties, this Court directed the Board to issue necessary permission and certificate to the College in respect of one Section of 128 students for the Sessions 2009-11 immediately. The order was not complied with by the respondents. Hence, petitioner filed abovementioned contempt application, namely, MJC No.317 of 2011, in this Court on 20.1.2011, with service of copies on learned counsel for the Board on 19.1.2011.
6. Petitioner thereafter filed abovementioned writ application, namely, C.W.J.C.No.2256 of 2011 in this Court on 2.2.2011. In this writ application, petitioner prayed for cancellation of 5 the programme of the examination published in the newspapers on 10.12.2010 for Intermediate/10+2 Examination of all faculties and/or, in the alternative, for a direction to the respondents to extend the programme for the said examination till OMR proforma of the students of the petitioner‟s College is accepted by the Board in terms of the order of this Court dated 10.12.2010 passed in the said C.W.J.C.No.18773 of 2010.
7. This writ application was taken up on 10.2.2011 and, on the prayer of learned counsel for the Board, matter was adjourned for the next day, to enable him to seek instructions and file affidavit showing compliance of the earlier orders of this Court. On the next day, learned counsel for the petitioner informed the Court about filing of the said MJC No.317 of 2011. Therefore, the case was adjourned for 14.2.2011 and the said MJC application was also directed to be listed along with the writ application. Thereafter, it appears that, when the copy of the contempt application was received by the functionaries of the Board through their counsel, for the first time matter was examined by them. They came to the conclusion that the press communiqué dated 24.7.2009 did not automatically extend the permission for one section to the college for the Sessions 2009-11 also, as notice in this regard was confined only to constituent colleges, and all other colleges had to apply for the same, which was to be 6 considered on merits. They realized that this distinction was not correctly pointed out to the Court by their learned counsel. Hence, abovementioned Civil Review No.58 of 2011 was filed in this Court on 14.2.2011. In the review application, it was categorically stated that the learned counsel for the Board could not correctly construe the meaning of word „ANGIBHUT‟ used in the paper notice, and therefore, wrongly conveyed to the Court that the petitioner‟s College, which was only an affiliated college, stood permitted for one section for Sessions 2009-11. Pleadings in the review application in this respect made in paragraphs 4 and 5 are as follows :-
" 4. That unfortunately the counsel for the Board namely Mr.S.Arshad Alam also failed to construe the meaning of the word „ANGIBHUT‟ as a result he did not dispute the submission made by the counsel for the respondent-petitioner as a result it was held in the order that the Counsel for the Petitioner/ respondent Board agrees to the fact that the one section of 128 student of the respondent‟s/petitioner‟s institution stand permitted to appear in the 2011 exams. Hence it becomes clear that Annexure-10 of the writ application was misinterpreted by the Counsel for the respondent/petitioner‟s institution and unfortunately, the Counsel for the petitioner/ respondent Board did not dispute the same as a result the observation was made by the Hon‟ble Courts‟, in its order dated 10.12.10 passed in C.W.J.C.No.18773 /2010.
5. That the Hindi word „ANGIBHUT‟ means Constituent, hence the second paragraph of the Advertisement No.23/2009 dated 24.7.2009 means that only Constituent Colleges, which had been granted permission for Sessions 2008-10 will automatically be permitted to appear in the Session 2009-11 exams."
8. Thereafter, the writ and the contempt matter 7 were taken up on 24.2.2011. As the review application had already been filed, the same was also listed on that day along with said two matters. Learned counsel for the Board prayed for one day accommodation to enable him to produce before the Court the original application along with all details submitted by the College for permission to start extra section for session 2008-10 and also its original application along with all details submitted for permission for extra section for Session 2009-11. He also drew the attention of the Court to an order of the Chairman of the Board rejecting the application of the petitioner for grant of permission for two more sections.
9. When the case was taken up on 25.2.2011, learned counsel for the Board further sought for an adjournment which was granted and the case was ordered to be listed on 1.3.2011. The three matters were thereafter taken up on 3.3.2011. Learned counsel for the petitioner pointed out that the examinations were going to commence from 8.3.2011, which was Tuesday, and 3.3.2011 being Thursday, if no interim orders were passed, 128 students of one section of the College may suffer in their career and their one year may be entirely lost. In the circumstances, this court passed interim order as recorded in the order sheet for allowing those 128 students to appear provisionally without a right being accrued to 8 them and directed that their result should not be published till further orders of this Court. Simultaneously, hearing of the three matters was concluded and orders were reserved.
10. However, in spite of said interim order, OMR forms were not issued to the College in respect of said 128 students. Hence, petitioner filed abovementioned MJC No.1108 of 2011 on 7.3.2011, with service of copies of the application on learned counsel for the Board, and mentioned the matter for its early hearing. The MJC application was accordingly listed on 8.3.2011 on which date Mr. Alam, learned counsel appearing for the Board, appeared and accepted notice on behalf of opposite party nos.2 and 3 i.e. Chairman and Secretary of the Board. This Court, finding that prima facie case of contempt was made out, initiated proceeding of contempt and directed the opposite parties to show cause for disobedience of the order dated 3.3.2011 passed in C.W.J.C.No.2256 of 2011. It appears that, in the meanwhile, on 7.3.2011 Board filed LPA against the said order dated 3.3.2011 passed in C.W.J.C.No.2256 of 2011, and some orders were passed by the Division Bench in the appeal. Therefore, when this contempt application was taken up on 15.3.2011, learned senior counsel for the Board informed this Court that orders had been passed in the said LPA and the said interim order dated 3.3.2011 of this Court had been modified. He prayed for some time 9 to produce copy of the order passed in the LPA. Accordingly, matter was adjourned for 18.3.2011. Learned senior counsel for the Board produced a copy of the order passed in the said LPA. Thereafter, order in this contempt matter was also reserved.
11. Coming to the facts of the case, as available on record, the College was granted permanent affiliation by the Bihar Intermediate Council with effect from 31.1.1989 for three sections of 128 students each for each of the three faculties (Arts, Science and Commerce). The College continued with imparting of teaching accordingly and the students were allowed to appear in the examination and their results were published by the respondents year after year.
12. Annexure-B to the counter affidavit shows that a communiqué was issued by the Council in the year 1997, in terms of the orders of this Court, announcing the prescribed sanctioned strength of students and section to different categories of affiliated and recognized Colleges. It also mentioned that such recognized colleges whose infrastructure was adequate for admission of more students could admit more students after getting approval from the Council. As per the case of the petitioner, his College had sufficient infrastructure to add further sections for imparting teaching to the students of Higher Secondary standard (+2) and hence it applied to 10 the respondent Board, which had stepped into the shoes of the Council in the meanwhile, by letter dated 29.7.2008 (Annexure-C) for increase of seats for which necessary fee for inspection etc. was deposited. In the meanwhile, an advertisement was also published in the newspapers on 26.9.2008 by the Board (Annexure-1) inviting applications from such constituent and other affiliated and recognized colleges, who were desirous of getting seats increased at the +2 level. Applications were to be submitted in the office of the Board by 30.10.2008 and it was directed that those who had already submitted applications were to resubmit the same in the prescribed proforma.
13. Petitioner‟s case is that the College submitted such application in the prescribed proforma. On receipt of the application from the petitioner‟s College, petitioner was requested by the Board, through letter dated 29.9.2008 (Annexure-D), to submit list of teaching and non- teaching employees, working on sanctioned and unsanctioned posts, their dates of joining, mode of payment with evidence, list of students of different faculties admitted in Sessions 2006-08 and up to date status of library and laboratory etc., within one week in the Board‟s office, for further action in respect of request of the College for increase of seats in Arts faculty for Session 2008-10. It appears that such information was submitted by the College. However, the 11 application of the petitioner remained pending for almost a year. Finally by letter dated 10.6.2009 (Annexure-E) petitioner was informed that in the admitted subjects/faculties period was extended for the Sessions 2008-10 under certain conditions. The conditions included that an affidavit with all details in respect of the College mentioned in the letter had to be submitted within one month, failing which period for 2009-11 would not be extended and the College would stand debarred from taking admission for session 2009-11. The students of the College, who had already been admitted, had, in the meanwhile appeared in the examination of 11th Class, and their result was declared, which was communicated by the petitioner to the Board vide Annexure-5.
14. The applications submitted by all the colleges for increase of seats for Sessions 2008- 10 were considered by the Board in the meanwhile and, by office order dated 20.6.2009 (Annexure-2), same was granted provisionally to altogether 111 colleges, with increase of seats faculty-wise, in which petitioner‟s College was allowed one section of Arts for the said session 2008-10. It was mentioned in the order that provisional increase of seats was allowed on the basis of information furnished by the colleges and if the same was found to be wrong, order of increase of seats would be cancelled with immediate effect.
15. Thereafter, for the next session i.e. 2009- 12 11, Board published another press communiqué in the newspaper on 25.7.2009 (Annexure-3), by which applications were invited from the colleges which were desirous of increase of seats for session 2009-11. In this notice, it was clarified that all colleges were required to submit their application in the prescribed proforma with required information for increase of seats in different faculties by 7.8.2009. However, it was mentioned in the notice that, such constituent colleges, which were allowed increase of seats for 2008-10 session, stood allowed increase of seats for 2009- 11 session also. However, for further increase of seats they were also required to submit applications with „No Objection‟ certificate. Accordingly, petitioner‟s College submitted application for increase of seats on 6.8.2009 (Annexure-4) in proper proforma in which request was made for increase of three sections of 128 students each in Arts faculty. This application of the petitioner for increase of seats for session 2009-11 also remained pending with the respondent for almost one year. However, in the meanwhile, next session started in the College. Accordingly, petitioner submitted an application on 26.7.2010 (Annexure-9) for increase of seats for Sessions 2010-12 also. Petitioner, in the meanwhile, also sent a reminder to the Board on 30.7.2010 for necessary permission for increase of seats for 2009-11 Session (annexure-6). Finally the Board 13 responded and in reference to said reminder of the College dated 30.7.2010 intimated the petitioner, by one line letter dated 27.9.2010 (Annexure-7), that the request of the College for increase of seats for Sessions 2009-11 has been rejected.
16. On receipt of this communication, it was informed to the Board by the College, through its letter dated 20.10.2010 (annexure-8), that the College had applied for increase of seats for session 2009-11 in time and, while the said application was pending, on the basis of increase of seats allowed for session 2008-10, admissions had already been taken by the College for the session 2009-11 as well as for session 2010-12 and students would suffer in view of refusal of the Board received now after almost one year. It was also mentioned in the letter that list of regular teaches had already been sent and the subject in which there was short of hands, teachers had been engaged on daily wage basis, list of which had not been sent. Hence, it was requested that, in the circumstances, permission be granted for increase of seats. Reminder of the said letter was again sent by the College on 26.10.2010 (Annexure-F) in which it was stated that the letter of the Board dated 27.9.2010 (Annexure-7) refusing permission was in fact received in the college on 20.10.2010. The Board did not respond to the said request made by annexures-7 and 8 and a paper notice was published on 11.11.2010 (Annexure-10) notifying 14 the date of examination of Intermediate/+2 course.
17. In the circumstances, petitioner filed earlier writ application, namely, C.W.J.C. No.18773 of 2010 which was disposed of by order dated 10.12.2010 in the light of submissions made by learned counsel for the parties, as dealt with above. On the same day, programme of examination was also published in the newspapers which showed that the theory papers were to start from 8th March, 2011. In the light of the orders of this Court passed in the earlier writ application, petitioner submitted requisite fee through bank draft on 14.12.2010 (Annexure-12) to the Board for issuance of OMR Forms to the College in respect of the students with a request to accept the same. Another application was submitted by the College on 23.12.2010 (Annexure-13) to the Board for issue of OMR Forms. The Board did not act upon the orders of this court and did not respond to the request of the petitioner. Hence, a reminder was submitted to the Chairman of the Board on 10.1.2011 (Annexure-14). Yet another reminder was submitted on 11.1.2011 (Annexure-15) to both, Chairman and the Secretary. However, they did not responded to the request and did not comply the earlier orders of this Court. Hence, petitioner filed the said MJC No.317 of 2011 on 20.1.2011 and this writ application on 2.2.2011 with service of copies thereof on learned counsel for the Board on 27.1.2011. After this present writ application was 15 filed, Chairman of the Board by a reasoned order dated 4.2.2011, as contained in Annexure-A to the counter affidavit, rejected the application of the petitioner‟s College for increase of seats, wherein it was stated that, in the press communiqué No.23/09, by which applications were invited for increase of seats for session 2009-11, only constituent colleges were allowed increase of seats for the said session automatically, on the basis of increase of seats in the earlier session for 2008-10. Affiliated colleges were not covered by the same. It was stated that in the proforma, which was required to be filled up and submitted with a request for increase of seats, it was mentioned that for increase of seats sufficient infrastructure, satisfactory arrangement and one extra teacher for each subject were essential requirements. The information submitted by the College through the proforma, and the enclosed documents, were examined and it was found that the petitioner‟s College had only one teacher of each subject, whereas one extra teacher of each subject was required for increase of seats, as indicated in the proforma itself. As the College did not fulfill these requirements, its request had already been rejected and communicated to the College by Board‟s letter dated 27.9.2010.
18. The Board has filed three counter affidavits in the case. In the first counter affidavit, it is stated that the petitioner‟s College is only 16 recognized by the Board to impart intermediate level of education to the students. It is accepted therein that, for 2008-10 session, one section of 128 students was allowed to the College on temporary basis. It is also stated that the same was allowed on the ground that the college would take up steps to upgrade its infrastructure. It has been categorically stated that the newspaper communiqué dated 24.7.2009 (Annexure-3) applied only to constituent colleges and not to affiliated or recognized colleges. Therefore, petitioner‟s College was not covered by the second paragraph of the said notice. It is stated in the counter affidavit that the order passed by this court in the earlier writ application was on the basis of misrepresentation and wrong submission made by the counsel for the petitioner. It is stated that in terms of the operative part of the earlier order, petitioner‟s College had never approached the Board and, after the order, it only applied for issue of OMR forms for students of 2009-11 session which application was considered and disposed of by the Chairman by order dated 4.2.2011 (Annexure- A). In the second affidavit of the Board, it is stated that, earlier also issue with regard to allotment of number of seats was raised before this Court by some Institutions through C.W.J.C.No.7776 of 1996. This Court while disposing of the said writ application, issued some directions and guidelines to be followed, in 17 compliance to which, Intermediate Council had issued advertisement no.26 of 1997 (Annexure-B), according to which, affiliated colleges were granted three sections for each faculty and total 384 students in each faculty were allowed to appear in the annual examination to be held by the Intermediate Council. Petitioner‟s College was also thus allowed 384 students in each faculty and fees and forms of those students have already been accepted by the Board to allow them to appear in the ensuing examination. Request of the petitioner‟s College for allowing 128 more students was not possible to be accepted as it does not fulfill necessary criteria for enhancement of seats and therefore, the same has already been rejected by the Chairman by the said order dated 4.2.2011. In the third affidavit, said application of the petitioner‟s College dated 29.7.2008 (Annexure-C), said response of the Board through letter dated 29.9.2008 (Annexure-D), said letter of the Board dated 10.6.2009 (Annexure-E) and said request of the College dated 26.10.2010 (Annexure-F) have been brought on record.
19. From the chronology of facts, it appears that prior to the Sessions 2008-10 there was proposal from the Board to allow the colleges imparting teaching of Intermediate level course for increase of seats by adding extra sections of 128 students each in respective faculties. Earliest document on record is a paper communiqué 18 dated 26.9.2008 (Annexure-1) by which applications were invited in prescribed proforma from constituent, affiliated and recognized Colleges for grant of such permission for 2008-10 session. It is admitted fact that the petitioner had applied for increase of seats by adding one section of 128 students in Arts faculty. Application of petitioner was considered and by letter dated 29.9.2008 College was asked to furnish further information in the enclosed prescribed proforma. This letter does not show as to what were the minimum requirements or preconditions for grant of permission to increase seats by opening more sections in the College. Nothing also has been placed on record by the Board as to what requirement of infrastructure was laid down by the Board for such permission. Board has not denied that the College had furnished information to the Board pursuant to this letter dated 29.9.2008.
20. It appears that such applications were received by the Board from other colleges also in response to its said paper communiqué dated 26.9.2008. Applications were considered and altogether 111 colleges were allowed increase of seats by opening extra sections in their Colleges of the respective faculties by Annexure-E dated 10.6.2009. This was allowed for Sessions 2008-10. It is significant to note that as the paper notice was published on 26.9.2008, when normal session 19 for 2008-10 had commenced or was about to commence in the colleges in the State, any extra section for that session, if it was to be allowed, was required to be allowed immediately, so as to enable it to run side by side normal sections of the session. As such, Board was expected to act upon all the applications of all the colleges within earliest possible time, so that the colleges may take further admissions and run extra section with regular sections of the colleges for session 2008-10. But the Board took almost one year to grant such permission. Extra section in the petitioner‟s College, and other colleges also, was allowed for session 2008-10, in June, 2009, when one year of the session was already complete or was about to complete. It was not expected from the said 111 colleges that, after grant of permission in June, 2009, they should take admission and start teaching for the extra section of the respective faculty for 2008-10 session, which in normal course, had already commenced in their colleges one year back. Therefore, all the colleges, which had applied for opening extra section, in anticipation of permission, had taken admission in their colleges in 2008 itself and had run the sections for one year, by the time formal permission was granted by the Board in June, 2009. This permission order, as contained in Annexure-E, issued in favour of petitioner‟s College, does not show as to what further addition the College was 20 required to make in its infrastructure and teaching staff for further permission to open one extra section for 2009-11 session also. The letter only shows that certain information with proof, was sought for from the College under different heads, which, nobody‟s case is that, was not furnished.
21. The general office order (Annexure-2) issued on 23.6.2009, enlisting 111 Colleges which were granted permission to run extra sections of different faculty for 2008-10 session, also does not show as to what further additions or improvements the colleges were required to make for extension of such permission for session 2009- 11 also. It is not disputed that, in the petitioner‟s College one extra Section of 128 students in Arts faculty was opened in 2008 and classes were held of that section also side by side the regular sections of Arts faculty in the College.
22. The respondent Board published advertisement on 24.7.2009, vide Annexure-3, inviting applications for increase of seats for session 2009-11 also. This was in the line of the earlier advertisement, as contained in Annexure-1, published by the Board for Sessions 2008-10. Stand of respondent Board is correct that, through this advertisement, only those constituent colleges stood automatically permitted to start extra section for session 2009-11 also, who were earlier 21 granted permission for 2008-10 session and all the other Colleges were required to submit formal application in this respect, which was to be considered on its own merits. Petitioner‟s College did submit an application on 6.8.2009, vide Annexure-4, for permission to increase three sections in Arts faculty of 128 students each, in proforma and with all necessary details in respect of the College. A note at the bottom of this proforma is the only material from which it appears that for seat increase, sufficient infrastructure, satisfactory arrangement and, for each extra section, appointment of one extra teacher, subject-wise, was necessary, apart from subject-wise teachers already appointed. With this form, petitioner had furnished necessary information in respect of the College, which is not available on record, although it is pleaded in the writ application that the same was filed in the Board. It is apparent that this application was submitted in time, when normal session of 2009-11 was to start in the colleges all over the State or had recently started. The Respondent Board did not act upon this application of the petitioner also for almost a year and, may be, such applications of other colleges also remained pending with the Board for almost one year. Therefore, taking cue from the past experience for 2008-10 session, petitioner‟s College took admission of 128 students in one section of Arts 22 faculty for 2009-11 session and held its classes, along with classes of regular sections of the College for the session, expecting that, like 2008-10 session, Board will again issue delayed permission letter. In the meanwhile, when the session 2010-12 was about to commence in July, 2010, petitioner‟s College submitted application on 26.7.2010, vide Annexure-9, for increase of seats for 2010-12 session also. Reminder was also sent, vide Annexure-6. Finally, by one line letter dated 27.9.2010, vide Annexure-7, Board communicated the Principal of the College with regard to rejection of request for increase of seats in the College for 2009-11 session. Clearly, this was done one year after the petitioner‟s College had submitted application for increase of seats for Sessions 2009-11, at the very initial stage of commencement of session in the College for the regular sections. By this time, one section of 128 students, who were admitted in the College some time in the middle of the year 2009, had already attended classes for one year. On receipt of this letter in the College, immediately a letter was sent to the Board by the petitioner pointing out that, in view of grant of such permission for 2008-10 Sessions, College had taken admission opened one section for 2009-11 session and one section for 2010-12 session also. It was informed that the teachers were engaged on daily wages and with a request to permit the students to 23 appear in the examination. Learned counsel for the petitioner submits that the College could appoint teachers only after permission was granted by the Board, and not before. The request of the petitioner was not considered and the Board proceeded with the examination schedule, necessitating for the petitioner to file this writ application.
23. It cannot be disputed that mere submission of application for increase of seats, in response to a press communiqué by the Board inviting applications for the same, could not create a right in the College to admit students and to start one extra section for a particular session in anticipation of approval of the Board. Therefore, act of the petitioner‟s College in admitting students and starting extra section for session 2008-10 or for session 2009-11 or for session 2010-12, without prior permission of the Board cannot be approved. However, the act of the College in admitting such students and starting one extra section of Arts faculty for session 2008-10, stands condoned on account of the fact that, though one year later, the Board accorded permission to the College for the same. But the act of the College in admitting students for 2009- 11 session, again in anticipation of permission of the Board, does not stand condoned, as, although almost after more than a year, such permission stands refused. Since the permission for 2009-11 24 session stood refused, in no way, petitioner‟s College could be held justified in admitting students for 2010-12 session in the extra section. There is no document on record to show that, when the College applied for permission for extra seats for 2008-10 session, it had improved its infrastructure, had increased its facilities or had appointed extra teachers duly qualified and after holding a selection process, may be on temporary basis, to start and run extra Section. Application of the petitioner for permission to increase seats for 2009-11 session, submitted on 6.8.2009 with its encloseures, has been produced on record along with Annexure-A to the counter affidavit of the respondents. The enclosures with the application contains name of teachers of different subjects employed in the College. In the list, apart from teachers appointed by the College on sanctioned post, there is one list of teachers of different subjects appointed by the petitioner‟s College against unsanctioned posts. This list of teachers, appointed on unsanctioned posts, shows that they were appointed in 1992, whereas, teachers against sanctioned posts were appointed earlier. There is nothing in the details furnished with the application, as available on record, to show that after the College started one extra section of Arts faculty some time in the middle of year 2008, for session 2008-10, there was any change or improvement in the 25 infrastructure or facilities in the College or any step was taken for appointment of more teachers for imparting proper teaching to the students admitted in the extra section opened in the College. Thus, although the College had continued with one extra section, opened in 2008, for almost one year, but it did not improve its infrastructure 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 application as against the Board.
24. However, question arises as to what will happen to 128 students who were admitted by the College some time in the middle of the year 2009 for session 2009-11 with expectation, that as for the previous year, when permission was granted after one year of commencement of the session, permission for this extra section for 2009-11 session will also be granted by the Board subsequently. While the request of the College remained pending with the Board, the session continued and, by the time Board communicated rejection of the request of the College, these students had completed one year of teaching. In 26 the circumstances, the College made a request by Annexure-8 to allow it to continue them, which request had also remained pending with the Board. Thus, admission of these 128 students some time in the middle of 2009 for Sessions 2009-11 was clearly on account of legitimate expectation by the petitioner‟s College that permission would be accorded by the Board, though may be even after a year, as was done for 2008-10 session. On this legitimate expectation the College held classes of these 128 students and had allowed them to complete one year of the course. In the circumstances, even having held against any claim of a right of the College to get permission from Board for increase of seats and for adding one extra section of Arts faculty in the College, said 128 students, admitted by the College some time in the middle of year 2009 for 2009-11 session and having completed their one year in the course, do get equitable right to appear in the examination conducted by the Board and to complete the course. However, the claim of the petitioner‟s College, that it had admitted students for 2010-12 session also, cannot be accepted as, soon thereafter, the College had received a letter from the Board intimating its refusal to the request for increase of seats for 2009-11 session. Hence, no legitimate expectation could arise to the College to start one extra section for session 2010-12, by admitting students and no equity can come into 27 play in respect of such students even if they are admitted for 2010-12 session. Equity arises only in respect of the said 128 students, admitted in the middle of the year 2009 for 2009-11 session in Arts faculty and who continued for one year before rejection order of the Board was received in the College. This equity arises for the sole reason that the Board took more than one year to communicate its decision of rejection of the request of the College.
25. In the circumstances, while denying any relief to the College in the case, this Court directs the Board to hold special examination for the said 128 students of Arts faculty, admitted by the College some time in the middle of 2009 for 2009-11 Session, in terms of the undertaking given on its behalf by its learned senior counsel before the Division Bench of this Court in L.P.A.No.445 of 2011, so that the said 128 students may not fall behind their batch-mates, Board is directed to hold special examination and publish their result positively within one month from today.
26. The writ application is thus disposed of with the aforesaid observations and directions.
Civil Review No.58 of 2011
27. While dealing with the abovementioned writ application, namely, C.W.J.c.No.2256 of 2011, as above, this Court has noticed that in fact, the said paper communiqué dated 24.7.2009 did grant permission for automatic increase of seats for 28 2009-11 session only to those constituent Colleges, which had been granted permission earlier for earlier session of 2008-10, but required the other affiliated and recognized Colleges to submit application, to be considered on its own merits, which, as correctly submitted by learned counsel for the Board, did not give any right to the affiliated or recognized Colleges to presume permission automatically granted.
28. As noticed above, order dated 10.12.2010 passed in C.W.J.C.No.18773 of 2010 was squarely on the basis of submissions made by learned counsel for the Board, which has been accepted in the review application, as quoted above, as wrongly made. Hence, this Court finds that the prayer of the Board to review the order dated 10.12.2010 passed by this Court in C.W.J.C. No.18773 of 2010 was justified. However, in view of the findings arrived at by this Court as above, while dealing with the abovementioned second writ application of the petitioner, that on the facts and in the circumstances appearing from the available records, no right accrued to the College for a mandamus to the Board to grant it permission for opening one extra Section of Arts faculty of 128 students for the sessions 2009-11 or 2010-12, it is not necessary to allow the review application, recall the said order dated 10.12.2010 passed in C.W.J.C. No.18773 of 2010 and restore the said application for fresh hearing. The review 29 application is, therefore, disposed of.
M.J.C. No.317 of 2011
29. This contempt application was filed alleging disobedience of orders dated 10.12.2010 passed by this Court in C.W.J.C. No.18773 of 2010.
30. In view of the findings arrived at by this Court in respect of abovementioned C.W.J.C. No.2256 of 2011, and order disposing of the review application, this Court does not find it appropriate to initiate any proceeding of contempt in this matter. This contempt application is accordingly disposed of.
M.J.C. No.1108 of 2011
31. Petitioner has filed this MJC application for initiating a proceeding of contempt against the opposite parties-contemnors and for punishing them for disobedience of the orders of this Court passed in C.W.J.C.No.2256 of 2011 on 3.3.2011.
32. This MJC application was taken up on 8.3.2011 and a proceeding of contempt was initiated against opposite party nos.2 and 3 and they were directed to show cause. Accordingly, they have filed their show cause taking the plea that due to paucity of time they could not comply the aforesaid order of this Court passed in this writ application.
33. The chronology of facts noticed above shows that petitioner had filed earlier writ application, namely, C.W.J.C.No.18773 of 2010 in this Court on 15.11.2010. The writ application was 30 taken up on 7.12.2010 and thereafter on 10.12.2010. No counter affidavit was filed by the respondents, though two copies of the writ application were served on learned counsel for the Board on 10.11.2010 itself. Therefore, when the case was taken up on 10.12.2010, even after one adjournment, no counter affidavit was available on the record. Learned counsel for the Board made oral submissions before the Court accepting that the College already stood permitted under the newspaper communiqué dated 24.7.2009 for one extra section of 128 students for 2009-11 session. In view of such admission on behalf of the Board, the writ application was disposed of with a direction to the Board to issue necessary permission and OMR Certificate (forms) to the College for one Section of 128 students for the session 2009-11 for their appearance in the ensuing examination, which was to commence from 8.3.2011.
34. The Board published examination schedule, but formal permission was not accorded by the Board and OMR forms were not issued to the petitioner‟s College in respect of said 128 students of one extra section of session 2009-11. Petitioner accordingly filed earlier contempt application, namely, M.J.C.No.317 of 2011 on 20.1.2011 with service of two copies of the same on learned counsel for the Board. Petitioner also filed above mentioned writ application (C.W.J.C. No.2256 of 2011) on 2.2.2011 with specific prayer 31 for cancellation of examination programme or its stay till OMR forms were issued to the College in respect of said 128 students in terms of the earlier orders of this Court. The said writ application was taken up on 10.2.2011 and was adjourned for a day on the request of learned counsel for the Board. On the next day, learned counsel for the petitioner pointed out that a contempt application had already been filed and therefore both the cases were ordered to be listed together. It appears that after the writ application (C.W.J.C.No.2256 of 2011) and contempt application (M.J.C.No.317 of 2011) were directed to be listed together, for the first time, the opposite parties-contemnors took up the matter of petitioner‟s College and considered the orders passed by this Court in the earlier writ application for the first time, after two months of the passing of the earlier order dated 10.12.2010. It appears that, then only they found that the order required to be reviewed as the same had been passed on wrong submissions of their learned counsel. Therefore, they filed above mentioned review application (Civil Review No.58 of 2011) on 14.2.2011. Hence, when the writ matter and the contempt matter were taken up on 24.2.2011, the review application was also listed along with the same. All the three cases were taken up by this Court and learned counsel for the Board informed the Court that some orders had been 32 passed by the Chairman rejecting the application of the petitioner‟s College for grant of permission to open two extra sections and he prayed for time to produce original application of the petitioner‟s College, submitted for grant of permission for extra section for Sessions 2008-10 as also for 2009-11. The matters were accordingly adjourned for the next day. On the next day also, learned counsel for the Board prayed for and was granted time. The three cases were taken up thereafter on 3.3.2011. On that day, learned counsel for the petitioner pointed out that on the one hand, matters were being adjourned at the behest of the authorities of the Board and, on the other hand, date of commencement of examination was approaching fast and the same was scheduled to start from 8.3.2011, which was Tuesday. Hence, when the matter was taken up on 3.3.2011, which was Thursday, this Court by way of interim order directed the Board to issue OMR Forms to 128 students and allow them to appear in the examination, without publication of their result and without creating any right in them on account of such appearance in the examination, which was made subject to final decision of this Court. Hearing in the cases was also concluded and orders were reserved. This order was passed due to paucity of time in deciding the matter finally.
35. This order was also not complied with by the opposite parties-contemnors and therefore on 33 7.3.2011 i.e. on Monday, petitioner filed present contempt application (M.J.C. No.1108 of 2011). This contempt application was taken up on 8.3.2011 and a proceeding of contempt was initiated against the opposite parties-contemnors and they were directed to file their show cause. Matter was finally taken up on 18.3.2011 when learned senior counsel for the Board produced a copy of the order passed by the Division Bench in L.P.A.No.445 of 2011, preferred by the Board against the said order dated 3.3.2011, passed by this Court in the above mentioned writ application (C.W.J.C.No.2256 of 2011), by which, L.P.A. was disposed of on the undertaking of learned senior counsel for the Board that if the petitioner succeeds, the Board would conduct special examination for those 128 students and with liberty to the Board to challenge final orders passed in the writ application.
36. Chronology of the development of cases have been noticed above just to show that from the very beginning the opposite parties-contemnors never intended to or made any attempt, either to comply the orders passed by this Court on 10.12.2010 in C.W.J.C.No.18773 of 2010, or intended to or made any effort to comply the said interim order dated 3.3.2011 passed in above mentioned writ application (C.w.J.C.No.2256 of 2011). It is apparent from the records that, it was only when the above mentioned writ application (C.W.J.C. 34 No.2256 of 2011) was taken up by this Court on 11.2.2011 and the same was ordered to be listed along with the contempt application (M.J.C.No.317 of 2011), the contemnors, after 2 months, took up the matter of the College, looked to the orders passed by this Court dated 10.12.2010, and then decided to file review application, which was filed on 14.2.2011. Thus, only the threat of contempt, made the contemnors wake up, and then they applied their mind to the said order dated 10.12.2010 and then decided to seek review of the same. Had they got any respect to the orders of this Court, they would have immediately examined the same and if they found that the same required review, would have filed review application latest by first week of January, 2011. They did not do that and sat over the matter till they came face to face with the threat of contempt on 11.2.2011 when this Court directed the contempt application (M.J.C.No.317 of 2011) to be listed along with the writ application of the petitioner. Similarly, interim order dated 3.3.2011 passed in the abovementioned writ application (C.W.J.C. No.2256 of 2011) was passed only on account of the fact that the examination was to commence from Tuesday next. The interim order dated 3.3.2011 was passed on Thursday and they had four days in their hand to issue OMR forms to the College in favour of said 128 students, allowing them to appear in the examination provisionally in terms of the orders 35 of this Court. This also they did not do. Therefore, petitioner filed the present contempt application on 7.3.2011, which was Monday and the same was taken up on Tuesday i.e. 8.3.2011. It appears that L.P.A. was filed by the contemnors, also on 7.3.2011 against the said interim order. However, on 15th March, 2011 learned senior counsel for the contemnors informed this Court that in the said L.P.A. some orders had been passed by the Division Bench. As per order dated 14.3.2011 passed in the said L.P.A., stand was taken before the Division Bench that time was too short for the Board to issue registration number in favour of the said 128 students. If that was the genuine difficulty of the contemnors-opposite parties, their learned counsel on 3.3.2011 itself, or by filing any application subsequent thereto in the writ application, could have prayed to the Court that it was not feasible to allow registration numbers to 128 students and therefore would have sought for modification of the order by undertaking that if the writ application was finally allowed, the Board would hold special examination for them. This prayer was never made in the writ application. Apparently, it was only under threat of second contempt that the contemnors decided to file appeal against the said interim order. Thus, the above facts make it clear that, from the date of first order itself, passed on 10.12.2010 in the earlier writ application, the 36 contemnors had no intention to nor they made any effort to comply any orders of this Court. Clearly the contemnors did not act bonafide, and they left the orders of this Court completely ignored, till they came face to face with threat of punishment for contempt of this Court. From the note sheet, annexed as preceding page of Annexure-A with the counter affidavit filed on 11.02.2011, it is apparent that an order was prepared by the office, on the advice of learned counsel for the Board, and the contemnor-Chairman of the Board only put his initial on it, which has been presented to this Court as an order of the Chairman.
37. In view of such conduct of the contemnors, as emerging from the facts noticed above, this Court finds that the contemnors are guilty of contempt of this Court. Hence, they are held as such and are punished with a fine of Rs.1000/- (Rupees one thousand) each to be deposited from their own pockets in favour of Patna High Court Legal Services Committee within two weeks from the date of this order.
38. The contempt application is accordingly disposed of with the above observations and directions.
( Jayanandan Singh,J.) Patna High Court The 4th April, 2011 A.F.R./Pradeep