Delhi High Court - Orders
Madrasa Open Schooling vs Odisha State Board Of Madrasa Education on 6 October, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13121/2021
MADRASA OPEN SCHOOLING ..... Petitioner
Through: Mr. Manuj Aggarwal, Mr. Tushar
Mehta and Mr. Lakshyam Dogtia,
Advocates.
versus
ODISHA STATE BOARD OF MADRASA
EDUCATION ..... Respondent
Through: Mr. Soumyajit Pani and Mr.
Aishwarya Bajpai, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 06.10.2022 CM APPL. 42572/2022 (for early hearing)
1. For grounds and reasons stated in the application, the same is allowed and with consent of counsel for parties, instant petition is taken up for hearing and disposal today itself.
2. The application stands disposed of.
W.P.(C) 13121/2021
3. Petitioner [Madrasa Open Schooling - hereinafter "MOS"] is aggrieved by order dated 25th October, 2021 [hereinafter "Termination Order"] whereby their appointment as 'Nodal Agency' of Respondent Signature Not Verified Digitally Signed W.P.(C) 13121/2021 Page 1 of 10 By:SAPNA SETHI Signing Date:12.10.2022 20:10:40 [Odisha State Board of Madrasa Education - hereinafter interchangeably referred to as "OSBME" or "the Board"] has been terminated. MOS, inter- alia, seeks a direction to the Board for setting-aside of Termination Order, declaration to the Board to declare the results of the students enrolled with MOS and thereafter, promote them in accordance thereof.
FACTS
4. Sans unnecessary details, relevant facts are as under: -
4.1. MOS was authorised to act as the 'Nodal Agency' of OSBME vide Notification dated 27th August, 2020.
4.2. On the same date, vide letter dated 27th August, 2020,1 MOS was authorised by OSBME to "use their own Syllabus and Examination Scheme/Medium as per the requirements of Students for Maulvi (10th/Secondary) & Mahir (12th/Senior Secondary) or as prescribed by National Council of Educational Research and Training ["NCERT"]". 4.3. On the basis of above sanction, MOS devised its own syllabus to impart education.
4.4. Vide letter dated 27th August, 2020,2 MOS was appointed as "Web Service Provider" to develop a new website for the Board. Further, they were also sanctioned to work on "Student Management System for Online Student Admission, Fee Submission, to Print Admit Card Online, Result, Result Verification and Mark Card Printing Software etc.". 4.5. On 27th August, 2020,3 the Board permitted MOS to admit students for certain roll numbers for "...Maulvi and Mahir Examination.". MOS 1 Letter No. 115/OSBME/20.2
Letter No. 112/OSBME/20.
Signature Not Verified Digitally Signed W.P.(C) 13121/2021 Page 2 of 10 By:SAPNA SETHI Signing Date:12.10.2022 20:10:40therefore, deposited the requisite fee for Moulvi and Mahir examinations. 4.6. On 20th September, 2021,4 the Board informed MOS that as per result sheets submitted by them (on 04th September, 2021), subjects like: "Quran- O-Hadith (HOH) and Fiquah for Moulvi and Tafseer-O-Aquait (T.A.), Hadith Osool-E-Hadith (HOH) and Fiquah-O-Osool-e-Fiquah (FOF) for Mahir" were not included and thus, they returned the amount of Rs. 40 lakhs deposited by them. In response, on 27th September, 2021,5 MOS wrote to OSBME requesting for waiver of condition to conduct Moulvi and Mahir examinations and consequently, promote students enrolled with them "[...] as has been done by all other boards in the country". 4.7. OSBME issued the Termination Order on 25th October, 2021, which reads as under: -
"Whereas the Madrasa Open Schooling, C-9/8, Ist Floor, Sector-8, Rohini, New Delhi- 110085 was engaged as Nodal Agency vide Notification No.117/0SBME/20 dt. 27.08.2020;
And whereas the MOS was authorized to promote the Madrasa Education through external students registration system;
And whereas complaints are being received from candidates from several States that they have paid examination fees and are requesting for issue of Moulvi/Mahir certificates;
And whereas MOS had submitted a list of about 2500 candidates alongwith Marks secured in various subjects but it was found that no online examination was conducted;
And whereas Odisha Madrasa Board has got affiliation from CHSE, Odisha for +2 Mahir Arts but MOS has included Science and Commerce subjects in the list submitted;3
Letter No. 118/OSBME/20.4
Letter No. 161/OSBME.5
Apparently, the letter is of an incorrect date as it mentions an event prior to the date of the order.Signature Not Verified Digitally Signed W.P.(C) 13121/2021 Page 3 of 10 By:SAPNA SETHI Signing Date:12.10.2022 20:10:40
And whereas in the letter No.125(2) dt. 07.09.2020 issued to the Chairman, MOS, New Delhi, it was clearly mentioned Quran-0-Hadith & Fiquah of Moulvi subject & Tafseer-0-Aquaid (TA), Hadith Osool-E- Hadith (HOH), Fiquah-o-Osool-e-Fiquah (FoF) of Mahir (+2 Arts) subjects should be included in the syllabus under MOS, and syllabus for Moulvi HSC and Mahir +2 examination as prescribed by OSMBE was handed over to MOS vide letter No.120 dt. 27.8.2020;
And whereas it was noted that most of the candidates mentioned in the list are non Urdu knowing;
And whereas it is noted that a Website www.osbme.ac has been created by MOS which contains information about Odisha Madras Board, which is misleading the public, and the MOS has invited application from candidates for which it has not been authorized by the OSMBE, Bhubaneswar.
In view of the above facts, the examination Sub-Committee of OSBME, in its Resolution dated 25.10.21 have decided to terminate the services of Madrasa Open Schooling, New Delhi as Nodal Agency and all related services are hereby cancelled with immediate effect.
By Order of Director -cum-President.
sd/-
S.I.O.-cum-Secretary"
[Emphasis supplied, underlining in original] 4.8. Aggrieved by the above, MOS has now approached this Court.
CONTENTIONS OF THE PARTIES
5. Mr. Manuj Aggarwal, counsel for MOS, argues that action of Board is arbitrary, unlawful, and no supported by any cogent reasons. He submits that in terms of communications received from the Board, MOS was entitled to have their own syllabus and thus, they acted within the scope of authorisation. The Board had prior knowledge of the students enrolled with MOS; relevant documents pertaining to such students were forwarded to the Board, whereafter roll numbers were generated. Mr. Aggarwal further Signature Not Verified Digitally Signed W.P.(C) 13121/2021 Page 4 of 10 By:SAPNA SETHI Signing Date:12.10.2022 20:10:40 argues that fee received from MOS was duly sent to OSBME, however, for arbitrary reasons, the same has been returned by them. The grounds raised in their communication dated 20th September, 2021 are misconceived and Resolution No. 06/2021 dated 25th October, 2021 based on 'meeting of the Examination Sub-Committee of Madrasa Board' [Annexure R-6 of counter- affidavit] records extraneous reasons. Additionally, he states that the website referred to in the said communication viz. 'www.osbme.ac' was created with consent of the Board and in accordance with authorisation letter; the Board has erroneously withdrawn the authorisation of 'Nodal Agency'. Mr. Aggarwal emphasized that apart from MOS, fate of the students who were enrolled with them is at stake and thus, a direction should be issued to OSBME for declaration of results and for issuing certificates for academic year 2020-21, as per commitment made by them.
6. Per contra, Mr. Soumyajit Pani, counsel for OSBME, avers that there are several instances of misconduct on part of MOS which disentitles them to continue their role as the 'Nodal Agency'. MOS has misused its position and devised their own syllabus contrary to the one prescribed by the Board or NCERT. Termination Order records that MOS submitted a list of 2,500 candidates along with marks, however, no online examination was conducted for the same. Admittedly, examinations were not conducted by MOS citing COVID-19 pandemic situation and mandatory guidelines issued by the Central Government in that regard.6 That apart, MOS wrongly seeks issuance of certificates qua courses which the Board is not authorised to issue. Furthermore, MOS started operating a website, making fake claims Signature Not Verified Digitally Signed W.P.(C) 13121/2021 Page 5 of 10 By:SAPNA SETHI Signing Date:12.10.2022 20:10:40 only to lure gullible students and therefore, admission of such students with MOS would not create any vested rights in their favour to seek a mandamus against OSBME.
ANALYSIS
7. In the opinion of the Court, MOS is not entitled to the reliefs sought in the present petition, for reasons discussed hereinafter.
8. Petitioner [MOS], a Madrasa, was established to impart open madrasa education to students. It was appointed as 'Nodal Agency' of Respondent [OSBME], a Board constituted by Department of School and Mass Education, Government of Odisha, to provide recognition to Madrasas, ensure educational facilities to students and for smooth conduct of madrasa examinations. MOS was authorised to promote madrasa education through external student registration system pan-India for conducting Moulvi (equivalent to Higher Secondary Certificate under the Board of Secondary Education, Odisha), Mahir (equivalent +2 Arts under the Council of Higher Secondary Education, Odisha), ALIM (+3), Fazil-E-Hadith (PG in Theology) & Fazil-E-Urdu (PG in Urdu) examinations. It was appointed as the 'Nodal Agency' and authorized to "establish Information Centre/ Examination Centre/ Collection of Fee/ Conduct of Examination for Maulvi (Secondary) School certificate, and Mahir (Intermediate/Senior Secondary)".
9. Vide communication dated 27th August, 2020, OSBME notified MOS 6 Letter dated 27th September, 2021 issued by MOS to the Board.
Signature Not Verified Digitally Signed W.P.(C) 13121/2021 Page 6 of 10 By:SAPNA SETHI Signing Date:12.10.2022 20:10:40that education must be "as per the requirement of Students for Maulvi (10th/secondary) & Mahir (12th/Senior Secondary) or as prescribed by the National Council of Educational Research and Training (NCERT)". For this purpose, Board insisted that students must study Urdu and Quran-O-Hadith (HOH) and Fiquah for Moulvi and Tafseer-O-Aquait (T.A.), Hadith Osool- E-Hadith (HOH) and Fiquah-O-Osool-e-Fiquah (FOF) for Mahir (+2 Arts). This syllabus decided by the Board could not have been ignored or side- stepped by MOS.7 It is undisputed that the afore-noted subjects were not included in the syllabus devised by MOS and thus undoubtedly, requirements fixed by the Board have been disregarded. Mr. Aggarwal states that in case the Board insists on including 'Urdu' as a subject, MOS is ready and willing to add the same in its syllabus. In the opinion of the Court, this submission, at this stage, is of no avail and cannot be basis to direct the Board to declare the results for examination conducted by MOS and consequently, promote students.
10. The Board has taken the decision after much deliberation is evident from Resolution No. 06/2021 dated 25th October, 2021, that formed the basis of the Termination Order. Relevant portion of the afore-said resolution reads as under: -
"a) The MOS had stated to have conducted online examination of the students of Moulvi and Mahir. It has, however, come to notice that MOS did not conduct any online examination.
b) Some persons from Haryana, Karnataka and other States visited this office and the Director last week requesting for declaration of results of their students. They stated that MOS accepted application forms for Commerce 7 Communicated by the Board to MOS vide letter No. 125(2)OSBME/20 dated 07th September, 2020.Signature Not Verified Digitally Signed W.P.(C) 13121/2021 Page 7 of 10 By:SAPNA SETHI Signing Date:12.10.2022 20:10:40
and Science stream for Moulvi and Mahir Examinations. It was explained to them that Odisha Madrasa Board has got affiliation for only +2 Mahir (Arts) and cannot issue certificate for Science and Commerce.
c) Further, most of the candidates in the list submitted by MOS are non-urdu knowing students. But in the letter issued by Ex-SIO to the Chairman of MOS, it was clearly mentioned to include Quran-O-Hadith & Fiquah for Moulvi and Tafseer-O-Aquait (T.A), Hadith Osoole-Hadith (HOH) & Fiquah-O-Osool-e-Fiquah(FOF) for Mahir. The Syllabus of Madrasa Board Odisha has been given to MOS under proper acknowledgement.
d) It was brought to the notice of the committee that the website www.osbmeac is live. This website has not been created by this Board. This website has been created by MOS but has information about the Odisha Madrasa Board including photographs of Director- Cum-President, Vice- President and the Secretary of the Board. A copy of the same is enclosed to these minutes.
e) It is clear from the website that MOS, New Delhi has created fake website in the name of Odisha Madrasa Board and inviting applications for issuing certificates for which it has not been authorized by this Board.
f) The MOS, New Delhi, has collected applications and demanded: fees from the candidates who are not eligible to get Moulvi and Mahir certificates. Also there is no approval from this Board to conduct examination on its own.
g) The MOS, New Delhi have been instructed to stop the website vide letter dated 31.08.2021 but the website was live till 22.10.2021. In view -of the above facts, the committee decided to terminate the affiliation, accorded to MOS, New Delhi in its Resolution dated 27.08.2020."
[Emphasis supplied]
11. The above decision notes several issues in relation to working of MOS, which are germane. The decision to terminate affiliation is therefore, based on cogent reasons. The Board took note of several breaches such as - wrongful acceptance of application forms for Commerce and Science streams for Moulvi and Mahir examinations, and also the fact that MOS did not conduct any online examination for student in Moulvi and Mahir. Issues Signature Not Verified Digitally Signed W.P.(C) 13121/2021 Page 8 of 10 By:SAPNA SETHI Signing Date:12.10.2022 20:10:40 in relation to operation of website/ domain name [www.osbme.ac] were also noted and deliberated inasmuch as MOS invited applications, sans authorization by OSBME, for Moulvi and Mahir certificates.
12. Further, vide letter dated 27th August, 2020,8 MOS was appointed as the "Website Service Provider" and thereby, they had a limited scope of authorization i.e., to provide for "Students Management system for Online students Admission, Fee Submissions, to Print Admit Card Online, Result, Result Verification and Mark card Printing Software etc". This communication does not envisage, as pleaded by MOS, that they were also entitled to invite applications for admissions. Additionally, it must also be noted that OSBME was constituted by Department of School and Mass Education, Government of Odisha for imparting education, inter-alia, +2 Mahir (Arts) and not Commerce and Science streams and thus, in absence of such affiliation or right vested with the Board itself, MOS could not admit student in such streams and then seek a direction from this Court for issuance of certificates to students enrolled at MOS, as per its own understanding.
13. MOS was engaged as the 'Nodal Agency' of OSBME to further their objective and considering the fact that they had not followed the requirements laid down by the Board itself - the Court finds no infirmity in the impugned Termination Order.
14. In view of the above, there is no merit in the present petition and Signature Not Verified Digitally Signed W.P.(C) 13121/2021 Page 9 of 10 By:SAPNA SETHI Signing Date:12.10.2022 20:10:40 accordingly, the same is dismissed along with pending applications.
SANJEEV NARULA, J OCTOBER 6, 2022 nk (Corrected and released on 12th October, 2022) 8 Letter No. 112/OSBME/20.
Signature Not Verified Digitally Signed W.P.(C) 13121/2021 Page 10 of 10 By:SAPNA SETHI Signing Date:12.10.2022 20:10:40