Jammu & Kashmir High Court - Srinagar Bench
J&K Board Of School Education vs Sara Hamid Elementary Teachers on 1 March, 2025
Bench: Sanjeev Kumar, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPAOW No. 87/2016
Reserved On: 25.02.2025
Pronounced On: 01.03.2025
1. J&K Board of School Education
through its Chairman Rehardi Colony
Jammu/Bemina, Srinagar.
2. Secretary Board of School Education
Rehardi Colony Jammu/Bemina,
Srinagar.
3. Joint Secretary ETT (K.D) Bemina
Srinagar.
4. Joint Secretary ETT (K.D) Bemina,
Srinagar.
5. Joint Secretary Registration Bemina,
Srinagar. ... Appellant(s)
Through: Ms. Sana Imam, Advocate vice
Mr. M.I. Dar, Advocate
Vs.
1. Sara Hamid Elementary Teachers
Training College Chitergam (Kalan)
Shopian Kashmir through its
Chairperson Syed Urfa Ajaz
D/O Ajaz Ahmad
R/O: Chittergam Kalan Shopian,
Kashmir.
2. State of J&K through
Commissioner cum Secretary to
Government, Education
Department, Civil Secretariat
Srinagar/Jammu.
...Respondent(s)
Through: Mr. Molvi Aijaz, Advocate
LPAOW No. 87/2016 Page No. 1 of 5
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
1. This appeal by the Jammu and Kashmir Board of School
Education and others is directed against an order and judgment dated
21.07.2014, passed by the learned Single Judge of this Court ["the writ
Court"] in OWP No. 352/2011 titled " Sara Hamid Elementary
Teachers Training College Vs. J&K Board of School Education and
Ors", whereby the writ Court has allowed the petition of the respondent
No.1 herein and directed the appellant Board to refund the examination fee
deposited by the respondent No. 1 with regard to the students enrolled for
the ETT examination session 2009-2011 within a period of two months.
2. Briefly, stated the facts leading to the filing of this appeal
are that the respondent No. 1, a Trust was running a Teacher Training
College at Chitragam, Shopian, by the name of Sara Hamid Elementary
Teachers Training College. In the process of its working the respondent
No. 1 made certain admissions in the ETT/NTT session 2009-2011. It is
claimed by the respondent No. 1 in the writ petition that due to certain
shortcomings pointed out by the appellant Board the Registration Return
forms of the students admitted in the college could not be submitted in
time. The appellant Board granted only one day time on 28.03.2011 to
submit the Registration Return (RR) forms of the candidates admitted in
the various ETT colleges. The respondent No. 1 claims that it was not
possible to complete all the requisite formalities and submit Registration
Return (RR) forms in one day and, thereafter, when Registration Return
(RR) forms were submitted after completion of due formalities, the same
were not accepted. It was claimed before the writ Court that though the
appellant Board received the examination fee, admission forms and
Registration Return (RR) forms, but yet the students admitted by the
respondent No. 1 were not informed in time and, therefore, were debarred
from sitting in the examination.
3. It is in the context of this grievance, the respondent No. 1
approached the writ Court seeking following reliefs:-
(i) That the Hon'ble Court be pleased to direct
the respondents to regularize the admission of the
students of Session 2009-11 ETT/LTTC College
admitted by the petitioner college and conduct their
examination.
(ii) That the Hon'ble Court be further pleased to
direct the respondent Board to grant the affiliation to
the said college on the basis of inspection already
conducted and give to it the same treatment which has
been given to others in the identical circumstances.
(iii) That the Hon'ble Court be pleased to direct
the respondent board to give to the petitioner college
the preferential treatment as is evident from the
government policy that the district which do not
possess the private colleges be provided.
4. The writ petition was contested by the appellant Board. It
was the stand taken by the appellant Board that the respondent No. 1 had
on its own made admissions though it had never been granted any No
objection Certificate/affiliation/recognition, either by the State
Government or by the appellant Board. The admissions were made by the
respondent No. 1 illegally and without any authority of law. It was thus
the stand taken by the appellant Board that in view of withdrawal of
earlier 'No Objection Certificate' granted in its favour by the Competent
Authority, it was not permissible to allow the respondent No. 1 institute, to
make admissions and then sit in the examination as a matter of right.
5. The petition was considered by the writ Court and vide
judgment dated 21.07.2014, same was allowed. The writ Court did not
adjudicate upon any of the issues raised by the petitioner (respondent No.1
herein) but directed the Appellant Board to refund the examination fee
received from the students through the respondent No. 1-Trust for the
examination Session 2009-2011. It is this judgment of the writ Court
which is called in question before this Court.
6. Having heard learned counsel for the parties and perused the
material on record, we are of the considered opinion that the relief granted
by the trial Court is beyond the case set up and the prayer made in the writ
petition. There was neither any averment made in the writ petition that
respondent institute had, after collecting examination fee, deposited the
same with the Appellant Board nor is there any documentary evidence on
record to show that the respondent No. 1 ever refunded the examination
fee which it had collected from the students and allegedly deposited with
the Appellant Board. In the absence of such pleadings and the evidence on
record to substantiate such pleadings, it was not permissible for the writ
Court to issue a mandamus to the Appellant Board to refund the
examination fee to the respondent No. 1.
7. Otherwise, also the examination fee which is deposited by a
Trust or Society running a school or college is collected from the students
and unless it is demonstrated clearly that the examination fee received
from the students have been refunded to the students no claim can be laid
by the respondent No. 1 before the Appellant Board. Allowing such course
to happen would be tantamount to unjustly enriching the respondent No. 1
trust.
8. Otherwise also the issue sought to be projected before us is a
disputed question of fact which cannot be gone into in the absence of any
documentary evidence on record.
9. For all these reasons, we find merit in this appeal and the
same is, accordingly, allowed and the judgment dated 21st July, 2014, is
set aside. We, however, leave it to the appellant to work out his remedy
before the civil Court which will be in a better position to determine the
complicated disputed questions of fact raised in this petition.
10. Disposed of.
(PUNEET GUPTA) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
01 .03.2025
"Mir Arif"
(i) Whether the Judgment is Reportable? Yes/No.
(ii) Whether the Judgment is speaking? Yes/No.
