Jammu & Kashmir High Court - Srinagar Bench
Koshar Public High School vs Union Territory Of Jk And Others on 6 May, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPA no. 124/2020
CM no. 4207/2020
(Through video conference)
Koshar Public High School
.... Appellant(s)
Through: Mr Altaf Haqani, Sr. Advocate with
Mr Shakir Haqani, Advocate
V/s
Union Territory of JK and others
... Respondent(s)
Through: Mr Mohammad Iqbal Dar, Advocate
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Vinod Chatterji Koul, Judge
ORDER
06.05.2021
Magrey, J (oral)
The instant intra court appeal is made against the judgment/ order of the
Writ Court passed in a writ petition, WP (C) no. 3196/2019 dated 28.09.2020, for
short impugned judgment, whereby the writ petition filed by the appellant has been
dismissed, on the grounds taken in the memo of appeal.
A brief resume of the events that led to the filing of this LPA, are taken note
of in the first instance, thus:
The appellant is stated to be an educational institution engaged in imparting
education to the children after having been granted affiliation by the J&K State
Board of School Education, for short respondent board, to run such school up to
the Secondary Level (up to 10th) for a period of two (02) years up to October-
November 2017, in phased manner i.e. Class 9th in academic session 2015-16 and
class 10th from academic session 2016-17. In terms of the order bearing No.59-Gen
of 2019 dated 27.10.2019, the respondent Board granted sanction for tagging of on
roll students of 9 th and 10th Class of the academic session 2018-19 of the appellant
school with the nearby cluster head High/ Higher Sec. Institution with a further
direction to the appellant to discharge the on roll candidates of 9 th class session
2018-19 from his school, thereby, denying the extension of the affiliation in tune
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with the policy of the Government notified in terms of Government Order No. 385-
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integrity of this document
Edu of 2016 dated 05.10.2016 which provides for 05 years extension in respect of
existing schools having deficiencies which are of minor nature or do not require
construction or major purchase or alternate arrangements, subject to addressing all
such deficiencies within three months, to be verified by the competent authority.
Feeling aggrieved of the Order no. 59-Gen of 2019 dated 17.10.2019,
denying extension in affiliation of the appellant school, the appellant challenged
the same as also the constitution of the Committee, which conducted the inspection
on the basis whereof the extension was denied, on the ground that it is arbitrary;
unreasonable and in violation of the policy of the Government notified in terms of
the Government Order no. 385-Edu of 2016 dated 05.10.2016 and application of
law; the denial to extension in affiliation is discriminatory as the similarly situated
schools have been accorded such extension, therefore, the denial is discriminatory
and violative of Article 14 of the Constitution of India.
The Writ Court, on consideration of the matter, dismissed the writ petition
on the appellant and upheld the decision of the respondent Board.
During the pendency of the instant appeal, the court in terms of order dated
2.11.2020, while after hearing the learned counsel for the parties and while taking
into consideration the plight of the students studying in the school who were
required to appear in the 10th class examination which was scheduled to commence
on 9th November, 2020, issued the following directions:-
"1) The appellant-school shall furnish the details of the
students who have undergone class 10 th studies in the school
in continuation of their studies in class 9 th qua the order
passed by the writ court on 02.11.2019 and on approaching
the Board shall facilitate the registration of these students and
filling of the examination forms.
2) The Board shall also ensure allowing these students to
appear in the 10 th Class examination scheduled to commence
on 9th Nov. 2020 or at a later date subject to any modification.
3) The registration/ appearance of these students shall be
subject to outcome of further orders from this Court."
In compliance to the order dated 2nd November, 2020, the respondent-Board,
during the pendency of the appeal, while allowing the students who were already
registered in 10th Class to appear in the 10th class examination scheduled in the
month of November, 2020, again reiterated its position of taking the students with
the cluster schools which was against the object of the order dated 2 nd November,
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2020.
integrity of this document
Mr Haqani, learned senior counsel, submits that during the pendency of the
instant appeal, the appellant school has admitted the students in class 9 th and 10th.
Mr M. I. Dar learned counsel appearing for the respondent-Board, while reiterating
the grounds taken in the objections and the written submissions, vehemently
opposed the claim made by the appellant school seeking quashment of the decision
of the Board qua retention of extension in affiliation as also for tagging the
students with the cluster schools in the interest of student community. He submits
that the decision is based on the policy of the respondent board notified in the
shape of the Act, Rules/ regulations and orders on the subject. He submits that
there is no scope for the appellant to seek extension in affiliation without meeting
the requirements/ deficiencies as pointed out by the Board Authorities.
Mr Altaf Haqani, learned senior counsel, invited attention of the court to the
interim application, CM no. 5783/2020, filed before this court for bringing on
record the documents to substantiate the claim that the Board has granted
retrospective extension in affiliation for a period of five years in favour of other
schools in tune with the scheme of policy notified by the Government.
The appellant has further raised a claim vis-à-vis extra fee charges as
examination charges by the respondent board in terms of Order No. 60-GEN of
2020 dated 04.11.2020 by virtue of which the appellant school has been charged
Registration Return fee and Examination fee of Rs.1520/- and Rs. 2500/- per
candidate respectively, when as a matter of fact, as submitted by Mr Haqani,
learned senior counsel for the appellant, the charges are Rs. 470/- and 840/-
respectively.
The respondent-board has filed its objections to the said application and
explained the circumstances which favoured extension in affiliation to the schools
whose reference is made in the application and have further clarified that the
excess charges are levied on account of late fee as the process of examination was
completed on 17th October, therefore, the appellant was liable for late fee.
We are conscious of the scheme of law governing the subject of affiliation of
schools with the respondent board of school education. There is absolutely no
disagreement vis-à-vis meeting the requirements as stipulated by the board in terms
of such scheme of law. But in the peculiar facts and circumstances of the case and
in order to do the substantial justice we do not propose to discuss the merit of the
case qua entitlement or otherwise of the appellant school for the relief claimed. We
would rather be taking recourse to an option that would advance the cause of
justice and save the careers of students who have spent considerable time in
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pursuing their education in the appellant school. We have noticed the pe rformance
integrity of this document
of the school, as would the records demonstrate, certified by the respondent board
itself as satisfactory in the inspection report.
In that view of the matter we propose to dispose of this appeal by providing
that the respondent-Board shall adopt the same line for grant of extension in
affiliation retrospectively in respect of the appellant school as has been adopted by
it in regard to other schools who have been granted extension in affiliation
retrospectively.
In the above background, without commenting upon the merits of the case,
we allow the appeal and set-aside the impugned judgment inasmuch as it affects
the rights of the appellant-school and we direct the respondent-Board to consider
grant of extension in affiliation retrospectively in favour of the appellant school
afresh on the analogy adopted in respect of similarly situated institutions, like i)
Rehmania Public School, Ganpora, Langate, Kupwara; ii) New Millennium Public
School, Khanabal, Handwara, Kupwara; iii) Sunrise Public School, Handwara,
Kupwara; iv) Famous Abhay Mission, New Theed Harwan; v) National Institute of
Creative Education, Sriguwara, Anantnag; vi) Madrasa Falah-I-Milat Singo
Narbal, Pulwama; vii) Good Shephard Mission School, Dangerpora, Pulwama;
viii) Zenith Institute Education, Eidgah Bijbehara, Anantnag; ix) Iqra Public
School, Halmatpora Kupwara; x) Syed Ashoor Gayoor Memorial Institute Dehraha
Mantipora Anantnag etcetera by affording an opportunity of making good the
deficiencies to the appellant school in tune with the application of Policy stipulated
in the Government order no.385-Edu of 2016 dated 05.10.2016.
The respondent-Board shall seek report from the Sub Committee in the same
way as has been done in respect of supra schools. The sub Committee shall
comprise of the same members. The needful shall be done within two months from
the date copy of this order is made available to the respondent Board by the
Registry of this Court. While making the decision for extension in affiliation
retrospectively, the school authorities shall be associated in such decision making
process and given full chance of providing all the material supporting their cause
before finalizing the report.
In the event the respondent board fails to complete the exercise within the
stipulated time they shall allow the students already admitted by the school to
submit their application forms and take further examination.
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Judge
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Srinagar
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06.05.2021
I attest to the accuracy and
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integrity of this Lone PS
document
