Rajesh Ashokrao Patil And Ors. vs Dhananjaya Samaj Seva Sanstha And ...
2002 Latest Caselaw 1326 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Civil Application No. 1972 of 2002 is filed by 50 students doing a course in Diploma in Education (D.Ed.) from Dhananjaya Samaj Seva Sanstha, respondent No. 1, a College registered under the Bombay Public Trusts Act, 1950, as well as Societies Registration Act, 1860.

2. The case of the petitioners is that the first respondent college has filed Writ Petition No. 4211 of 2001 in this Court for certain reliefs prayed in the prayer clause of the petition. On 10th September, 2001, notice was issued by the Division Bench of this Court and the respondents were directed to file affidavit in reply within four weeks. It was also observed that, if possible, on the next date of hearing the matter would be disposed of finally. The counsel for the State was also asked to seek instructions as to whether the college which was being run by

the petitioner (respondent No. 1 in C. A. No. 1972 of 2002) without permission had since been closed down and whether the Government would consider grant of no objection certificate, if the college would give an undertaking not to start the college without first getting permission of the National Council for Teachers Education.

3. Thereafter the first respondent college filed Civil Application No. 499 of 2002, inter alia, praying therein that respondent Nos. 4 and 5 i.e. State of Maharashtra and Director of Examination Bureau, be ordered and directed to allow 50 students studying in the first year D.Ed. to appear at the annual examination scheduled to commence from March 20, 2002, and to allow to continue their studies in the second year D.Ed. On March 19, 2002, Rule was issued on civil application. It was made returnable after eight weeks. In the meantime, interim relief was granted in terms of prayer (a) and 50 students were allowed to appear in the examination. It was, however, stated that their results would not be declared without prior permission of the Court. In pursuance of the above order, 50 students appeared at the first year D.Ed. examination.

4. The present civil application (C.A. No. 1972 of 2002) is filed by those 50 students, who had prosecuted study in First Year D.Ed. in the first respondent college and were allowed to appear in pursuance of the order passed by the Division Bench in Civil Application No. 499 of 2002 filed by the first respondent college.

5. In Civil Application No. 1972 of 2002, the petitioners have stated that they have suffered for no fault of theirs. It was also stated that though at an earlier occasion, the college had approached this court by filing Civil Application No. 499 of 2002, and prayed to allow 50 students to appear at the examination, pursuant to which they were allowed to appear at the said examination but now the college is demanding and insisting for illegal payment of 'large amount' which the petitioners are unable to pay. The College is, hence, not helping them. The resultant effect is that though the petitioners have appeared at the examination in First Year D.Ed. conducted in March, 2002, their results have not been declared because of the order passed by this Court. Since respondent No. 1-college is not taking care of the petitioners, they are constrained to approach this court by filing Civil Application No. 1972 of 2002. It is prayed in the civil application that the petitioners may be allowed to intervene in the main writ petition and their result of first year D.Ed. examination which was conducted pursuant to an order dated 19th March, 2002, be declared.

6. We have heard the learned counsel for the parties. Mr. Anturkar, learned counsel for the petitioners in C.A. No, 1972 of 2002, submitted that there is no fault on the part of the petitioners of Civil Application No. 1972 of 2002. They took admission in the first respondent college. They prosecuted their studies, and ought to have been allowed to appear at the F.Y.D.Ed. examination and their results ought to have been declared. Unfortunately, however, it was not done. The petitioners, therefore, requested respondent No. 1 college to do the needful in the matter. The first respondent college filed a petition and prayed for interim relief. The said matter is still pending. Meanwhile, when examinations were scheduled to be held in March, 2002, the first respondent college filed Civil

Application No. 499 of 2002, praying therein that the petitioners (50 students) be allowed to appear at the examination scheduled to be held on 20th March, 2002. An order was passed by the Division Bench of this court and the petitioners were allowed to appear but the Division Bench observed that their results will not be declared without the prior permission of the Court. The petitioners, therefore, again requested the first respondent college to take appropriate action by praying to this court for an appropriate order in Civil Application No. 499 of 2002 so that the results of 50 students who had appeared at the examination be declared. Unfortunately, taking undue advantage of the situation, the first respondent college made illegal demand from the petitioners and since the petitioners did not accede to the said demand, the college did not do anything. That necessitated the petitioners - students to file Civil Application No. 1972 of 2002.

7. It was submitted by Mr. Anturkar, that according to the first respondent college, no provisional or conditional recognition was necessary in view of the fact that the first respondent college was functioning as an existing institution. But even if it is assumed for the sake of argument that such a step is required to be taken, the fault lies with the college and not with the students. When the petitioners have prosecuted their studies, they were allowed to appear by interim order passed by this Court and as per the record, the college has been closed down, it would be in the interest of justice if a limited prayer is granted by this court directing the respondents to declare results of the petitioners who had studied and appeared in First Year D.Ed. examination pursuant to the order passed by the Division Bench of this Court. He, therefore, submitted that the civil application deserves to be allowed by issuing appropriate directions and granting the prayer of the petitioners.

8. The respondent authorities, on the other hand, submitted that the action taken by them is in consonance with law and since the first respondent college could not have admitted students, no relief can be granted in favour of the petitioners.

9. The learned counsel for the parties made reference to certain decisions of the Supreme Court in support of their submissions.

10. In A. P. Christians Medical Educational Society v. Government of Andhra Pradesh and Anr., , the Apex Court observed that the court cannot issue direction to the University to protect interest of those students who had been admitted to a professional college not affiliated with the University. Any direction of the nature allowing the students to appear would be in clear transgression of the provisions of the University Act and the regulations framed under the relevant law. The court, by a judicial fiat, cannot direct the University to disobey the statute to which it owes its existence which would be destructive of the rule of law.

11. Again, in State of Tamil Nadu and Ors. v. St. Joseph Teachers Training Institute and Anr. , following A. P. Christians Medical Education Society, the court held that students of unrecognised institutions cannot be permitted to appear in public examinations. A court cannot act illegally by issuing directions to the Government and Education Department on humanitarian ground to hold supplementary examination to enable such students to appear subject to final outcome of the matter. The jurisdiction of the

Supreme Court under Article 32 or of High Courts under Article 226 of the Constitution should not be frittered away for such a purpose. Grant of permission to the students of an unrecognised institution to appear at the examination would amount to encouraging and condoning establishment of unauthorised institutions. The court cannot become a party to an illegal action.

12. In St. John's Teachers Training Institute (for women), Madurai and Ors. v. State of Tamil Nadu and Ors., , it was indicated that the institutions which had been granted temporary recognition before commencement of the Rules were bound to comply with the conditions so as to be entitled to permanent recognition. A court of law should not pass interim orders permitting students from institutions which failed to get recognition due to non-fulfilment of conditions to appear at the examinations. It was further observed that no equity or legal right can be pleaded on behalf of the teachers admitted for training by minority institutions for publication of their results on the ground that they were allowed to appear at the examination by interim orders which were in conflict with the law laid down by the Supreme Court in several cases.

13. In paragraph 21, the court stated :

"21. Before we part with this judgment, we consider it necessary to strike a note of caution in respect of passing of interim orders by courts directing the students of unrecognised institutions, to appear at the examinations concerned. In view of the series of judgments of this Court, the courts should not issue fiat to allow the students of unrecognised institutions to appear at the different examinations pending the disposal of the writ applications. Such interim orders affect the careers of several students and cause unnecessary embarrassment and harassment to the authorities, who have to comply with such directions of the court. It is a matter of common knowledge that as a part of strategy, such writ applications for directions to recognise the institutions in question and in the meantime to allow the students to appear at the examinations are filed only when the dates for examinations are notified. Many of such institutions are not only "masked phantoms" but are established as business ventures for admitting substandard students, without any competitive tests, on basis of considerations which cannot even the interest of the minority. There is no occasion for the courts to be liberal or generous, while passing interim orders, when the main writ applications have been filed only when the dates for the examination have been announced. In this process, students without knowing the design of the organisers of such institutions, become victim of their manipulations."

14. In C.B.S.E. and Anr. v. P. Sunil Kumar and Ors., , the High Court of Kerala, by interim order permitted the students to appear at the examination conducted by C.B.S.E. and directed the C.B.S.E. to issue certificates to those students on the basis of their result in the examinations at which they appeared in pursuance of the interim order. In an appeal by C.B.S.E., the Supreme Court held that the interim order of the High Court being in contravention of the rules and regulations of the C.B.S.E. was not justified as it

would tantamount to subversion of law. The court also observed that practice of allowing students to appear provisionally in the examination of the Board or the University and then ultimately regularising the same by taking sympathetic view must be deprecated. In such cases the doctrine of promissory estoppel had no application. The court was conscious of the fact that the order setting aside the direction of the High Court would cause injustice to those students but stated that "to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students".

15. In Union of India v. Era Educational Trust and Anr., , the Supreme Court observed that interim order granting mandatory relief to run medical college should not be made. By making such order, the court is really violating the norms for grant of relief. It may, however, be stated that considering the subsequent development and assurance given by the trust that it would comply with all requirements within the stipulated period, certain reliefs were granted.

16. In the instant case, the contention of the first respondent college was that No Objection Certificate (NOC) was granted by the State of Maharashtra as early as in 1999. The college applied for recognition of Teachers Education College to respondent No. 3, Regional Director of Western Regional Committee, National Council for Teachers Education (NCTE), but it was rejected against which an appeal was preferred by the college and the State Government withdrew No Objection Certificate. The appeal was dismissed on the ground of withdrawal of No objection Certificate by the State Government. The college then filed a petition which is still pending. It was contended in the petition that the State could not have withdrawn No Objection Certificate once it was granted. It was also contended that the respondents could not have insisted for provisional or conditional recognition under the Act.

17. When the petition came up for admission hearing, the court also wanted to know as to whether the college had been closed down and whether the Government would consider grant of No Objection Certificate on the college giving an undertaking not to start it without first getting permission of NCTE. Thus, the court had taken into consideration interests of the students as also the statutory requirements.

18. Though no affidavit is filed by the respondents in Civil Application No. 1972 of 2002, an affidavit is filed in Civil Application No. 499 of 2002 by the Principal, District Institute of Education and Training, Sindhudurg, (Kudal), wherein it was stated by the deponent that the Education Department had granted permission to the college "as a special case" and allowed 50 students to study vide a letter dated June 30, 2000. That communication was sent in response to the Government letter dated 28th June, 2000. In the words of the deponent, "irregular admission" given by the college in unauthorised, D.Ed. course "had been regularised subject to the subsequent approval by National Council for Teachers' Education". When NCTE refused to regularise irregular admissions, an action of

withdrawal of 'No Objection Certificate' was taken. It was further stated that this court in an order in the main matter (Writ Petition No. 4211 of 2001) filed by the college sought specific information on two points; (i) whether the college which was being run by the petitioner without permission had since been closed down; and (ii) whether the Government would consider grant of 'No Objection Certificate' if the petitioner gives an undertaking not to start the college without first getting permission of the National Council of Teacher Education. The deponent then stated; "I say that as per the information received from the Education Officer (Secondary), Zilla Parishad, Sindhudurg, the College has been closed down by the petitioner".

19. From the facts stated hereinabove, it is clear that initially 'No Objection Certificate' was granted by the State Government to the first respondent college. It is also on record that a prayer was made by the first respondent college for grant of recognition. From the affidavit of the District Institute of Education and Training, it is clear that "as a special case" 50 students (petitioners of C.A. No. 1972 of 2002) were allowed to study in first year D.Ed. At the time when the notice was issued, the Division Bench of this Court wanted to know firstly whether the college which was being run without permission had been closed down and whether the Government would reconsider grant of 'No Objection Certificate' on the basis of undertaking by the college. In pursuance of the said order, inquiry was made and it was revealed that the college has been closed down. In Civil Application No. 499 of 2002, interim order came to be passed by this Court permitting 50 students to appear at the examination.

20. Taking into account the totality of facts and circumstances, viz. when "No Objection Certificate" was granted, when as a special case, the petitioners were admitted and allowed to prosecute their study in F.Y.D.Ed. course, and NOC was withdrawn subsequently by the State, when the said action was challenged before this Court and the petition is pending, when in pursuance of an inquiry it has come on record that the College has now been closed down and when the students had appeared at the examination pursuant to an interim order passed by this Court, in our view, it would be in the interest of justice if we direct the respondents to declare results of the petitioners of Civil Application No. 1972 of 2002 who had appeared at First Year D.Ed. Examination in March, 2002. In our considered opinion, fond hopes were raised in the minds of the students (vide Central Board of Secondary Education v. Nikhil Gulati and Ors., .

21. In State of Maharashtra v. Vikas Sahebrao Roundale, also, out of 129 students, one who was successful was not disturbed by the Supreme Court.

22. For the foregoing reasons, Civil Application No. 1972 of 2002 deserves to be allowed and is accordingly allowed and the prayer for declaration of the result of first year D.Ed. examination conducted in March, 2002, in which the petitioners appeared is hereby allowed. The respondents are directed to declare their results, issue mark sheets and certificates to that effect. In the facts and circumstances, however, there shall be no order as to costs.

23. In view of the order passed by us in Civil Application No. 1972 of 2002, no further order is necessary in Civil Application No. 499 of 2002 and is ordered to be disposed of accordingly with no order as to costs.