Calcutta High Court (Appellete Side)
Biswajit Das & Ors vs State Of West Bengal & Ors on 11 April, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 28479 (W) of 2016
Biswajit Das & Ors.
-Vs.-
State of West Bengal & Ors.
With
WP 28465 (W) of 2016
Subhojit Roy & Ors.
-Vs.-
State of West Bengal & Ors.
With
WP 28486 (W) of 2016
Falguni Ghosh & Ors.
-Vs.-
State of West Bengal & Ors.
With
WP 30162 (W) of 2016
Sumanta Halder & Ors.
-Vs.-
State of West Bengal & Ors.
With
WP 30163 (W) of 2016
Pranab Halder & Ors.
-Vs.-
State of West Bengal & Ors.
With
WP 30164 (W) of 2016
Saresh Barman & Ors.
-Vs.-
State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioners : Mr. Kalyan Kumar Bandopadhaya, Sr.
Adv.
Mr. Ekramul Bari, Adv.
Ms. Tanuja Basak, Adv.
For the respondent no. 3 : Mr. Arabinda Chatterjee, Adv.
Ms. Kakali Dutta, Adv.
Mr. Arkadipta Sengupta, Adv.
For the State : Mr. Bhaskar Prasad Vaisya, Adv.
Mr. Suman Dey, Adv.
For the Board : Mr. L. K. Gupta, Sr. Adv.
Mr. Subir Sanyal, Adv.
Mr. Ratul Biswas, Adv.
Mr. Kaushik Choudhury, Adv.
Heard On : 23.12.2016, 24.02.2017, 06.03.2017,
17.03.2017,
23.03.2017, 24.03.2017
CAV On : 29.03.2017
Judgment On : 11.04.2017
Arijit Banerjee, J:-
(1) Learned Counsel for the parties submit that these six writ petitions involve the same issues of facts and law and hence the same are taken up together for hearing and disposal. The pleadings I will refer to are those filed in connection with WP 28479 (W) of 2016. (2) The undisputed facts of the case are that the respondent college/institute is recognized by the NCTE to offer D. El. Ed. Course. It is a non-Government self-financed institution. On June 4, 2015 the West Bengal Board of Primary Education (in short the 'Board') issued a public notice informing the heads of all the NCTE recognized D. El. Ed. Institutes that application forms for admission to two years D. El. Ed. Course would be available for sale from the office of the Board on and from 9 June, 2015. On 8 June, 2015 a public notice was issued by the Board in the newspapers for admission to the two years D. El. Ed. Couse for the session 2015-17 wherein the names of institutions in which aspiring candidates could take admission were mentioned. The said list included the respondent institute.
(3) The petitioners claim to have tendered their candidature before the respondent college for admission and claim to have submitted requisite fees for admission and registration which was received by the college.
(4) By issuance of a memo dated November 11, 2016 the Board informed all concerned including self-financed non-Government institutions like the respondent institute that the registration certificates of the students of session 2015-17 were ready for distribution to the respective institutions and would be available between 15 November, 2016 and 18 November, 2016 from the Board office during office hours. The notice further stated that in case of self-financed non-Government institutions only the approved Heads of the institutions was to receive the registration certificates and the approved list of faculty was to be submitted at the time of receiving such certificates.
(5) Since registration certificates were not given to the petitioners, they have approached this Court by filing this writ petition. Contention of the petitioners:-
(6) Mr. Kalyan Bandopadhyay, Learned Sr. Counsel appearing for the petitioners submitted that the petitioners took admission in the respondent institute, attended classes regularly and have completed the two years course. However, the Board is illegally not granting registration certificates to the petitioners although they have already participated in the practical examination. Unless such registration certificate is granted, the petitioners would be precluded from taking D. El. Ed. Examination to be conducted by the Board, the dates for which would be shortly announced.
(7) Learned Counsel submitted that the petitioners have come to learn that the respondent institute submitted the merit list to the Board but there is no record of the same. They have also come to learn that as per the demand of the Board, the college authorities tried to deposit the requisite amount but the same was refused by the Board. The petitioners were accepted as bona fide students of the respondent institute and the fees deposited by the students were accepted by the Board. Till the completion of the course none of the petitioners were put on notice that there is any flaw in the admission process. It was the duty of the institute to do the needful for registration of the petitioners and they had no role to play in this regard.
(8) Learned Sr. Counsel further submitted that the Board is taking a false stand that the institute never approached the Board for obtaining application forms within the stipulated period of time. (9) Learned Counsel referred to a letter dated 15 October, 2015 written by the respondent Institute to the Board enclosing thereto a demand draft of Rs. 1 lac and recording in the letter that the said demand draft had not been accepted at the Board's office in due course and even after that the Institute's representative as well as Principal had visited the Board's office several times to deposit the demand draft but in vain. He then referred to the Board's letter dated 4 November, 2015 written in reply to the Institute's aforesaid letter and pointed out that there was no denial of the statements made in the Institute's letter. Mr. Banerjee then referred to the decision of the Hon'ble Apex Court in the case of The Comptroller and Auditor General of India, Gian Prakash, New Delhi-vs.-K. S. Jagannathan, AIR 1987 SC 537, and in particular he relied on paragraph 18 of the judgment which reads as follows:-
"18. The first contention urged by learned Counsel for the Appellants was that the Division Bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission both with respect to the order of the Division Bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the Respondents in their writ petition. What the Division Bench did was to issue directions to the Appellants in the exercise of its jurisdiction under Article 226 of the Constitution. Under Article 226 of the Constitution, every High Court has the power to issue to any person or authority, including in appropriate cases, any Government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari, or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath, Hindu Undivided Family v. Income-Tax Officer, Special Circle, Kanpur, and another, [1965] 3 S.C.R. 536, 540 this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country." In Hochtief Gammon v. State of Orissa & Ors., [1976] 1 S.C.R. 667, 676 this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the Government or its officers."
Contention of the Respondent Institute:-
(10) Mr. Chatterjee, learned Counsel for the respondent Institute submitted that in terms of the notice dated 4 June, 2015 issued by the Board, the Principal of the Institute went to the office of the Secretary of the Board along with a demand draft of Rs. 1 lac for obtaining the forms for admission in D. El. Ed. Course for the session 2015-17.
However, the authority refused to accept the demand draft and did not issue the admission forms and no reason was assigned for such refusal. He further submitted that the Institute had prepared a merit list for general candidates, OBC A category, OBC B category, ST, vocational, M.Q and also prepared a waiting list. The said merit list was submitted to the Board vide letter dated 20 June, 2015 by the Principal of the Institute but after receiving the same the Board did not acknowledge such receipt.
(11) Learned Counsel submitted that by a notice dated 14 July, 2015 the date of admission to the D. El. Ed. Course was extended till July 22, 2015. However, since there was no communication from the Board, the Principal of the Institute vide letter dated 15 October, 2015 submitted demand draft of Rs. 1 lac to the Board. In response, the Board returned the demand draft contending that the last date for issuance of application forms had expired on 9 June, 2015. (12) Mr. Chatterjee then submitted that after publication of the notice dated 9 June, 2016 issued by the Secretary of the Board regarding issuance of registration forms to the students, the Principal of the Institute vide letters dated 24 June, 2016 and 29 July, 2016 requested the Secretary of the Board to issue registration forms for 50 students and had also enclosed a bank demand draft for Rs. 30,000/-. The Board refused to accept the demand draft and refused to issue the registration forms.
(13) He then submitted that being deeply concerned with the refusal of the Board to issue registration certificates to the students of the Institute, the Secretary of the group of Institutions of which the respondent Institute is a part, wrote a letter dated 4 July, 2015 to the Minister in Charge, Education Department, Government of West Bengal, requesting him to direct the appropriate authorities to issue the registration certificates to the students of the Institute. Subsequently, on 29 July, 2016, the Institute sent all the documents as required by the Board in terms of the notice dated 9 June, 2016 by Speed Post but the said parcel came back with an endorsement 'refused'. The Assistant Secretary, School Education Department, Elementary Branch by a letter dated 11 January, 2017 requested the Secretary of the Board to issue necessary registration forms for the students of, inter alia, the respondent Institute for the session 2015-17 as per the existing rules.
(14) In short, learned Counsel submitted that the respondent Institute did everything within its control for obtaining admission forms and subsequently registration forms for the students of the Institute but the Board arbitrarily refused to issue such forms. He submitted that the stand of the Board that the Principal of the Institute never approached the Board for obtaining the admission forms is completely untrue and incorrect.
Contention of the Board:-
(15) Mr. Gupta, Learned Senior Counsel appearing for the Board referred to the notice dated 4 June, 2015 and submitted that the date for submission of merit list by the Institute to the Board was 20 June, 2015. Without an approved merit list there could be no admission.
The merit list was never submitted. Further, there is nothing on record to show that, in fact, the Institute gave admission to the students. In all probability, such admission was only shown on paper. Otherwise, the Institute would not have sat idle for such a long period of time. Further, the affidavit filed on behalf of the Institute has been affirmed not by the Principal of the Institute as it should have been done, but by the Secretary of the Institute. He further submitted that the students must have been aware of the notice dated 4 June, 2015 and they must have approached the Institute for admission on the basis of such notice. Hence, the students being the writ petitioners must have been aware of the procedure also. They should have been diligent in ensuring that the Institute followed the procedure stipulated in the said notice. However, they took no steps and have approached the Court at the last moment.
(16) Learned Senior Counsel then submitted that it is strange that the Institute claims that it had tendered a demand draft for Rs. 1 lac within the specified time period. The Institute has a sanctioned strength of 50 students. Each admission form costs Rs. 300/-. Hence Rs. 15,000/- should have been tendered and not Rs. 1 lac. This also is indicative of the falsity of the story made out by the Institute. (17) Mr. Gupta then submitted that there are more than 400 Institutes. Out of them only six are complaining of refusal by the Board to issue admission forms or registration forms. There is absolutely no reason why the Board should take a step-motherly attitude towards these six Institutes. In the past years, even these six Institutes had complied with all formalities and had no occasion to make complaint against the Board. However, this year, these Institutes did not act in terms of the notice issued by the Board and did not approach the Board for collecting the admission forms within the time period specified.
(18) Mr. Gupta then submitted that the statements made in the Institute's affidavit are not credible. If the Institute had any real grievance against the Board, it would have approached this Court. Even the letter dated 15 October, 2015 written by the Institute does not state that the list of students or merit list was sent to the Board. In any event, no steps were taken between 11 June, 2015 and 15 October, 2015. The last date of admission was 9 June, 2015. He submitted that as per the rules of admission, students could not be admitted without approval of merit list by the Board. This is to ensure that the private colleges do not admit students for considerations other than merit. The merit list was never submitted by the Institute to the Board and obviously this was for some oblique motive.
(19) Referring to the Institute's letter dated 24 June, 2016, Mr. Gupta submitted that there could be no question of issuing registration forms to the Institute. Registration forms come last. First is the admission form. Since the Institute never collected the admission forms, it is preposterous to suggest that registration forms should be issued to the Institute.
(20) Mr. Gupta laid great emphasis on the fact that the date for obtaining admission form was 9 June, 2015 as per the notice dated 4 June, 2015. However, the demand draft that was tendered by the Institute was dated 11 June, 2015. Hence, clearly the Institute did not approach the Board for collecting admission forms within the time prescribed in the notice.
(21) Mr. Gupta then submitted that the rules for admission (page 20 of the Board's affidavit) are binding on the Board as well as on the Institute. All the requirements have to be satisfied by the Institute and the Board has to ensure the same before approving the merit list. He submitted that even administrative orders/circulars issued by the Board are binding on the Institute as well as on the Board. In this connection he referred to a decision of the Hon'ble Apex Court in the case of Union of India-vs.-K. P. Joseph, (1973) 1 SCC 194. He relied on paragraphs 9, 10 and 11 of the said judgment which read as follows:-
"9. Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan and Another (1968) 1 SCR 111, that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Art. 309 of the Constitution are silent on any particular point, the Government can fill up gaps; and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.
10. In Union of India and Others v. M/s. Indo Afghan Agencies Ltd. (1968) 2 SCR 366, 377, this Court, in considering the nature of the Import Trade Policy said:
"Granting that it is executive in character, this Court has held that Courts have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities."
To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area. A very perceptive writer has written:
"Let us take one of Mr. Harrison's instances - a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the King's shilling; afterwards the officer is sued by the Government for being short in his accounts among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the Court exactly as effect will be given to a statute providing that murderers shall 'be hanged, or that last wills must have two witnesses." (John Chipman Gray on "The Nature and Sources of the Law").
11. We should not be understood as laying down any general proposition on this question. But we think that the Order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the Order and that was part of the conditions of his service. We see no reason why the Court should not enforce that right."
(22) Mr. Gupta then submitted that the petitioners are seeking equitable relief. Equity follows the law. Equity does not override the law. Where a law prevails, equity has no role to play. He submitted that the rules for admission framed by the Board have the force of law and it must prevail over equitable considerations like hardship of the petitioners. In this connection he relied on a decision of the Hon'ble Apex Court in the case of Raghunath Rai Bareja-vs.-Punjab National Bank, (2007) 2 SCC 230. Learned Senior Counsel relied on paragraphs 29 to 34 of the reported judgment which read as follows:-
"29. Learned counsel for the respondent-Bank submitted that it will be very unfair if the appellant who is a guarantor of the loan, and director of the Company which took the loan, avoids paying the debt. While we fully agree with the learned counsel that equity is wholly in favour of the respondent-Bank, since obviously a Bank should be allowed to recover its debts, we must, however, state that it is well settled that when there is a conflict between law and equity, it is the law which has to prevail, in accordance with the Latin maxim 'dura lex sed lex', which means 'the law is hard, but it is the law'. Equity can only supplement the law, but it cannot supplant or override it.
30. Thus, in Madamanchi Ramappa & Anr. vs. Muthaluru Bojjappa AIR 1963 SC 1633, para 12, this Court observed :
'what is administered in Courts is justice according to law, and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law.'
31. In Council for Indian School Certificate Examination vs. Isha Mittal & Anr. (2000) 7 SCC 521, para 4 this Court observed:
'Considerations of equity cannot prevail and do not permit a High Court to pass an order contrary to the law.'
32. Similarly in P.M. Latha & Anr. vs. State of Kerala & Ors. (2003) 3 SCC 541, para 13, this Court observed:
'Equity and law are twin brothers and law should be applied and interpreted equitably, but equity cannot override written or settled law.'
33. In Laxminarayan R. Bhattad & Ors. vs. State of Maharashtra & Anr. (2003) 5 SCC 413, para 73, this Court observed:
'It is now well settled that when there is a conflict between law and equity the former shall prevail.'
34. Similarly in Nasiruddin & Ors. vs. Sita Ram Agarwal (2003) 2 SCC 577, para 35, this Court observed:
'In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom.'
35. Similarly in E. Palanisamy vs. Palanisamy (Dead) by Lrs. & Ors. (2003) 1 SCC 123, para 5, this Court observed:
'Equitable considerations have no place where the statute contained express provisions.'"
(23) Mr. Gupta then referred to the decision of the Hon'ble Apex Court in the case of Priya Gupta-vs.-State Of Chattisgarh, (2012) 7 SCC 433, paras 46 and 47, and submitted that in that case the Hon'ble Apex Court had fixed a deadline for medical admission cases to introduce discipline and transparency in the admission procedure.
Hence it was entirely reasonable for the Board to fix a deadline for various stages of the admission procedure and the same were binding on all concerned.
(24) Mr. Gupta finally submitted that there is no averment in the writ petition that the petitioners were not aware of the procedure for admission. The petitioners are equally at fault for not ensuring that the Institute strictly followed the admission procedure. Further submission on behalf of the Institute:-
(25) In response to the Board's contention that there was no reason why the Institute tendered Rs. 1 lac instead of Rs. 15,000/- , Mr. Chatterjee, Learned Counsel for the Institute produced a copy of a notice dated 6 June, 2016 issued by the Board which required deposit of Rs. 1 lac for 300 forms. As regards the time schedule specified in the notice dated 4 June, 2015 Mr. Chatterjee submitted that the last date of issuance and submission of application forms was 18 June, 2015 till 4 p.m.. Hence, the Institute did everything within time. (26) Mr. Chatterjee further referred to a letter dated 20 June, 2015 (page 20 of the Institute's affidavit) under cover of which, according to him, the Institute submitted the merit list for the D. El. Ed.
Programme 2015-17 in the prescribed format along with soft copy to the Board. However, he said that no receipted copy of such letter is available as the Board refused to acknowledge the same. Petitioners in Reply:-
(27) Mr. Bandopadhyay, Learned Senior Counsel submitted that there is no factual pleading on the basis of which the Board can argue that the students were being extorted or being taken for a ride by the Institute. This shows the closed and biased mind of the Board. There cannot be any presumption on the basis of which aspersions may be cast on the petitioners or on the Institute. The Board has not stated in its affidavit that the students have not attended classes. (28) As regards the Board's contention that the admission forms were to be issued by the Board only on 9 June, 2015, Mr. Banerjee placed on record a notice dated 12 June, 2015 issued by the Board whereby the date for issuance of admission forms was extended till 15 June, 2015.
As regards Mr. Gupta's submission that equity follows the law, Mr. Banerjee referred to Art. 13(3) of the Constitution which states that for the purpose of the said Article unless the context otherwise requires 'law' includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. He then referred to Article 166(3) of the Constitution which provides that the Governor shall make Rules for the more convenient transaction of the business of the Government of the State and for the allocation among the Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. He submitted that the rule making power is that of the State. He referred to the rules and regulations for admission to two years D. El. Ed. Course for the session 2015-17 issued by the Secretary of the Board (page 20 of the Board's A/O) and submitted that the Secretary had no power to make such Rules. Such rules do not have the force of law.
Mr. Bandopadhyay also referred to Sec. 106 of the West Bengal Primary Education Act, 1973 which provides that the power to make Rules is with the State Government. Hence, the Rules relied upon by the Board is not law and has no binding effect. In this connection Mr. Bandopadhyay relied on a decision of a Full Bench of this Court in the case of Rabindra Nath Mahata-vs.-State of West Bengal, 2005 (3) CHN 337. Learned Counsel relied on paragraph 17 of the reported judgment which reads as follows:-
17. Considering the said guidelines providing for procedure for recruitment of teaching and non-
teaching staff of secondary schools including Madrasha issued by the Director of School Education, West Bengal vide memo No. 2066- G.A. dated 27th October, 1995 effective from 1st December, 1995, it appears that in exercise of power conferred on the Director of School Education, West Bengal by clauses (i) and (ii) of Sub-rule (1) and by clause (i) of Sub-rule (4) of Rule 28 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969, the said directions were issued. It, therefore, appears that the aforesaid are mere directions/guidelines issued in exercise of the aforesaid power but are neither statutory provisions nor statutory rules. In such circumstances, it is not possible to uphold that the said procedure enjoys the status of statutory rules according to which the managing committee is bound to act and that the same having been held as directory in nature any deviation therefrom by the managing committee cannot be held to be an illegal action. It is also apparent the said rules of 1969 do not contain any provision for selection through Employment Exchange. Therefore, in my opinion, the aforesaid procedure for recruitment not being statutory rules, cannot be held as of such nature that managing committee of the schools are bound to follow the provisions of the said recruitment procedure and no direction can be issued even by the Court upon the managing committees of the schools to allow any and every person to appear for the interviews though their names have not been sponsored by the Employment Exchange, in view of the law settled by the Apex Court to the aforesaid effect. Moreover, the relevant statutory provision contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 only require intimation of vacancies to Employment Exchanges and no obligation was prescribed for recruiting only the candidates sponsored by Employment Exchange.
Therefore, the directions given in paragraph 33 of the judgment in the case of Debasis Dutta (supra) cannot be held to be valid and proper."
(29) With regard to the decision of the Hon'ble Apex Court in the case of Priya Gupta-vs.-State of Chattisgarh (supra), Mr. Bandopadhyay submitted that in that case the directions given by the Hon'ble Apex Court were under Article 142 of the Constitution and did not lay down any law.
Board's Reply to the petitioner's reply:-
(30) Mr. Gupta submitted that there is no pleading by the petitioners or by the Institute that even by 15 June, 2015 i.e. the extended date for issuance of admission forms, the Principal of the Institute went to collect the forms. He submitted that in the letter dated 4 July, 2016 written by the Institute to the Minister-in-Charge, Education Department, it has been stated that the respective Principals/Teacher-
in-Charge of the Gitanjali Group of Institutions were sent to procure application forms within the stipulated time i.e. 22 July, 2015. This is inconsistent with the stand of the Institute that its Principal approached the Board within 15 June, 2015 to collect the admission forms. Finally, Mr. Gupta submitted that instructions of the Board have binding effect on all concerned including the Institutes as provided under Sec. 19(1)(dd) of the West Bengal Primary Education Act, 1973. In response, learned Counsel for the Institute submitted that Sec. 19 of the said Act has been declared ultra vires by this Court in Tulshi Bakshi-vs.-State of West Bengal, 2008 (4) CHN 789. Court's View:
(31) The contention of the petitioners is that pursuant to the notice dated 4 June, 2015 issued by the Board, the petitioners took admission in the respondent Institute. It is not in dispute that the respondent Institute is recognized by the Board for imparting training for the D. El.
Ed. Course. The petitioners have annexed to the affidavit in reply documents evidencing payment of fees for the month of November, 2015. Authenticity of these documents have not been disputed by the Board. The petitioners contend that they have attended classes regularly and have completed the two years course. However, the Board has refused to issue registration certificates to the petitioners without which the petitioners will not be able to sit the final examination to be conducted by the Board for the D. El. Ed. Course. (32) The petitioners further contend that as per the notice dated 4 June, 2015 issued by the Board, only the Principal/Head of the Institutes could collect the admission forms upon payment of the requisite charges. The petitioners could not have directly collected such forms. They are bone fide students of the Institute and it was for the Institute to comply with all the procedural formalities so that the petitioners were issued registration certificates by the Board and allowed to take the final examination.
(33) The Board contends that the Principal of the Institute did not approach the Board for collection of the admission forms within the time period stipulated in the notice dated 4 June, 2015. The petitioners could not have taken admission in the Institute without such admission forms and the petitioners are not bona fide students of the Institute. In collusion with the Institute the petitioners have made out a false case for oblique motive. There is no evidence to show that the petitioners were actually admitted to the Institute or attended classes. The petitioners should have been aware of the admission procedure but they took no step to ensure that the procedure was complied with by the Institute. No merit list of students was submitted to the Board. Without approval of such merit list no question of petitioners being admitted to the Institute could arise. In short, the contention of the Board is that the petitioners are not bona fide students of the Institute and hence registration certificates cannot be granted in their favour.
(34) I have carefully gone through he pleadings on record along with the documents annexed thereto. As per the notice dated 4 June, 2015 the Board was to issue application form for admission to the Institute on 9 June, 2015. It was contended on behalf of the Board that the demand draft for Rs. 1 lac that the Institute claims to have tendered to the Board is dated 11 June, 2015. Hence, even assuming that in fact such demand draft was tendered and the Principal of the Institute approached the Board for collection of admission forms, the same was beyond the time schedule specified in the notice dated 4 June, 2015. Further, it was contended on behalf of the Board that there was no reason why the demand draft for Rs. 1 lac would be tendered since for 50 students at the rate of Rs. 300/- per students, the amount comes to Rs. 15,000/-. Great emphasis was laid on behalf of the Board on these two points.
(35) The aforesaid contentions of the Board are not correct. By a notice dated 12 June, 2015, time for issuance of admission forms was extended till 15 June, 2015. Although copy of the said notice is not annexed to the pleadings, authenticity thereof has not been disputed on behalf of the Board. Further, the Institute produced a notice issued by the Board requiring deposit of Rs. 1 lac for 300 forms for Institutions having capacity of 50 students. Authenticity of this document has also not been disputed on behalf of the Board. The Institute has contended that its Principal approached the Board along with demand draft for Rs. 1 lac within the time specified but the Board refused to issue admission forms. The Institute has annexed to its affidavit a letter dated 20 June, 2015 under cover of which it claims to have submitted the merit list to the Board. It has not been contended on behalf of the Board that this is a manufactured document. In its letter dated 15 October, 2015 addressed to the Board, the Institute stated that on several occasions its Principal visited the Board's office even after the Board's initial refusal to accept the demand draft. This statement has not been denied in the letter dated 4 November, 2015 written by the Board in reply to the Institute's letter dated 15 October, 2015. It is further strange that in the letter dated 4 November, 2015 the Board took a stand that the last date for issuance of application forms to the Institute had expired on 9 June, 2015, when, in fact, it appears that the time was extended till 15 June, 2015.
(36) The Institute wrote a letter dated 12 November, 2015 to the Board stating therein, inter alia, as follows:-
"(a) We tried to collect admission forms from your good office several times by submitting the draft amounting Rs. 100000 drawn on Allahabad Bank dated 11/06/2016.
(b) At last we shared admission forms from our neighbouring college. We sold 52 forms out of which 50 students were admitted in the college. Merit list was submitted previously to your good office.
(c) Our letter no. NCE/182/15 dated 15.10.2015 along with the Demand Draft for Rs. 100000 was returned back by your office vide letter no.
2397/BPE/2015 dated 04.11.2015.
In this circumstances we are eagerly waiting for your telephonic call or any letter for the submission of the list of the candidates again which is already submitted to your office along with the Demand Draft to fulfil the revenue of the West Bengal Board of Primary Education.
Madam, once again I request you to inform the college over telephone or in writing for the same at your earliest."
In course of submission, Learned Counsel contended that the Board never received the said letter.
(37) A letter dated 9 June, 2016 was issued by the Board regarding registration of students for the session 2015-17. By the said letter, the Heads of the Institutions were called upon to submit the approved merit list of the admitted students in the Institutions concerned and to receive Information Sheet for registration on payment of Rs. 600/- per students by way of demand draft. It was stated that the last date of receiving such forms from the Board was 24 June, 2016. By a letter dated 24 June, 2016 the Institute claims to have submitted the merit list of the students and a demand draft for Rs. 30,000/- for 50 students. Authenticity of this letter has not been disputed on behalf of the Board but it was submitted that this amounted to placing the cart before the horse inasmuch as there could be no issuance of registration certificate when the procedure for admission had not been complied with in the first place.
(38) Subsequently, also letters were written by the Institute to the Board as contended by Learned Counsel for the Institute. However, in course of submission learned Counsel for the Board denied receipt of such letters.
(39) The documents on record including letters written by the Institute are not conclusive one way or the other. Excepting the letter dated 15 October, 2015, receipt by the Board of none of the other letters written by the Institute is established by records. However, even assuming that the Institute did not approach the Board within the time period specified in the notice dated 4 June, 2015, in my opinion, the petitioners should not be made to suffer for such default/shortcoming on the part of the Institute. I am concerned about the future career of 300 young boys and girls who appear to have been caught in a crossfire but never the Board and the Institute. They say that they took admission in the Institute in question, paid the monthly fees for two years, attended classes and completed the two years course. The Institute admits the same. If the Institute is at fault, the adverse consequences thereof should not be allowed to visit the petitioners.
(40) The Board would contend that the petitioners are not bona fide students at all. They never took admission in the Institute nor attended classes. Hence, they cannot be allowed to sit the final examination that the Board will conduct shortly. While it is not possible for me on the records available to hold whose contention is correct, I am of the view that giving benefit of doubt to the petitioners in the facts and circumstances of the case will be proper and appropriate. If the petitioners are not bona fide students and have not prepared themselves to take the final examination, they are unlikely to be unsuccessful in the examination. It is a risk that they run. The Board loses nothing. However, if in fact the petitioners are bona fide students of the Institute then denying them the opportunity of taking the final examination would be grossly unjust and will be a tremendous set back to their career. Whether or not the petitioners are allowed to sit the examination, the Board will stand to lose nothing. If, however, the petitioners are indeed bona fide students but still are prevented from taking the examination, they will stand to lose immensely. (41) Since I have taken the view as stated above, it is not necessary for me to deal with the cases cited by the parties.
(42) Learned Counsel for the Board contended that the Rules framed by the Board for admission to the D. El. Ed. Course for the session 2015-17 and the contents of the notice dated 4 June, 2015 issued by the Board specifying the time schedule, have the force of law and are binding on all concerned. Whether or not it is so, on that I express no opinion. However, I have my doubts as to the binding nature of the Rules pertaining to the admission to the D. El. Ed. Course issued by the Secretary of the Board. Sec. 106(1) of the West Bengal Primary Education Act, 1973 provides that the State Government may, after previous publication, make Rules for carrying out the purposes of the said Act. Sec. 106(2) of the Act provides that without prejudice to the generality of the power under sub-Section (1), such Rules may provide for all or any of the matters enumerated in sub-Section (2). Thus, the rule-making power appears to be that of the State Government. Mr. Gupta, Learned Senior Counsel for the Board would rely on Sec. 19(1)(dd) of the said Act. This provision along with Sec. 19(1)(ff) were incorporated in the said Act by way of amendment by West Bengal Act 6 of 2002. Sec 19(1)(dd) provides that subject to any general or special orders of the State Government, the provisions of the Act and any rules made thereunder, the Board shall have generally the power to guide, supervise and control primary education [including primary teachers' training], and in particular the power to institute Primary Teachers' Training Examination, after considering the recommendations, if any, of the Examination Committee and to make regulations on all aspects connected with such examination. Sec. 19(2) of the Act provides that subject to the provisions of Sub-Section (1) the Board shall have the power to make regulations in respect of any matter for the proper exercise of its power under this Act; provided that no regulation shall be valid unless it is approved by the State Government. Sub-Section (3) of Sec. 19 provides that the State Government may, in according the approval referred to in the proviso to sub-Section (2), make such conditions, alterations, and modifications therein as it thinks fit; provided that before making any such conditions, alterations or modifications the State Government, if it thinks fit, give the Board an opportunity to express its views thereon within such period as may be specified by the State Government. Finally, Sec. 19 (4) of the said Act stipulates that all regulations approved by the State Government shall be published in the Official Gazette.
This primary rule making power is clearly that of the State Government. In so far as Sec. 19(1)(dd) of the Act is concerned, I have my doubts as to how far the said Section survives or remains effective after the decision of our Division Bench in the case of Tulsi Baksi-vs.- State of West Bengal (supra). In Tulsi Baksi's (supra) case, our Division Bench while analysing the National Council for Teachers Education Act, 1993 and the West Bengal Primary Education Act, 1973, held that the object of the former Act is to develop the teacher education system through-out the country whereas the object of the later Act is development, expansion and control of primary education with a view to making it universal, free and compulsory. As I read the Division Bench judgment, it held that by amending the West Bengal Primary Education Act in 2002, the State Legislature could not empower the Board to do certain things which were within the exclusive domain of the NCTE, a body constituted under a Central Act. (43) In any event, any Rules/Regulations framed by the Board in exercise of power under Section 19(1)(dd) or Section 19(2) of the said Act would require approval of the State Government and publication in the Official Gazette to become effective. Nothing has been placed before me to show that the concerned Rules issued by the Secretary of the Board obtained approval of the State Government or were published in the Official Gazette. Hence, I am unable to accept the contention of Mr. Gupta that the said Rules have the effect of law. (44) In any event, I am of the view that law is not a set of inflexible and insensitive rules. Law must bend before justice. Law is the means, justice is the end. A law that is bereft of justice is as vain and futile as a fancy motor car without its engine. I am of the considered opinion, if the Board is directed to issue registration certificates to the petitioners, the same will not be in breach of any law. (45) I am also unable to subscribe to the contention of the Board that the petitioners are acting in collusion with the Institute in which they have taken admission. I see no reason and it is highly improbable that the petitioners would do something that would put their future career in jeopardy. I cannot accept that the petitioners would do something that would amount to committing hara-kiri in so far as their future prospects are concerned.
(46) I am conscious that this judgment of mine is based on giving benefit of doubt to the petitioners in the facts of the case which are on record. However, my judicial conscience impels me to do so. By passing the order that I propose to do I am only granting an opportunity to the petitioners to take the examination in question. It is not that the petitioners will be granted a degree/diploma on the strength of this order. Only if they are deserving candidates they will be successful in the examination. But if they are deserving candidates, irretrievable prejudice and irreversible injustice would be caused to them by denying them the opportunity. The Board stands to lose nothing one way or the other.
(47) In view of the aforesaid, I direct the Board to issue registration certificates to the petitioners at the earliest and in any event prior to the examination in question being held so that the petitioners are able to sit such examination. Needless to say that the petitioners/colleges shall comply with all formalities as the Board may require including payment of the requisite fees/charges. I am passing this order in the peculiar facts and circumstances of this case and this will not create any precedent.
(48) WP Nos. 28479(W) of 2016, 28465(W) of 2016, 28486(W) of 2016, 30162(W) of 2016, 30163(W) of 2016 and 30164(W) of 2016 are accordingly disposed of. There will, however, be no order as to costs. (49) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance with necessary formalities.
(Arijit Banerjee, J.)