JUDGMENT Amitava Lala, J. This writ petition is arising out of a challenge of the guardians of the students of the primary section of a school known as Kalyani University Experimental High School (Primary Section) in respect of notice of Kalyani University Experimental High School (Secondary Section) for giving admission test to get an admission of Class-V in the 2000-01 academic session. 2. According to the petitioners that both Kalyani University Experimental High School (Secondary Section) and Kalyani University Experimental (Primary Section) are two units but the institution is the same. Several documents are annexed in the writ petition wherefrom the learned counsel appearing for them wanted to establish that in effect both the schools are same but the unit is different. Such an explanation also given in respect of absorption of teachers from one unit to other, for necessary funds as well as in respect of management. 3. The petitioner has given a background of the school by saying that originally the said school was recognised by the West Bengal Board of Secondary Education, but managed by Kalyani University. This status was continued for about 17 years unless a dispute cropped up on and from 1st January, 1987 when the management was taken over by the State Government and the institution became a Government Sponsored Institution. 4. In effect, there should not be any hindrance in running two units of one institution, separately for the sake of Primary Education Act i.e. Act of 1973 and Secondary Education Act i.e. Act of 1963 respectively. Integral part of the Constitution is same which was before taking into management by the State. If it is so in that case, there is no formal change of original system because the genus is the same i.e. one integrated part of the school. It is shown from various annexures that the teachers were inter-changed in between the two schools even in 1989 after taking over by their State, resolution was taken to that extent of interchange of the teachers, joint magazine was published, joint prize distribution ceremony was held, even joint Saraswati Puja which is a festival for the God of learning was held. 5. Apart from that even in the year 1990, the managing committee of the primary section donated certain sums to the secondary section for development since Higher Secondary classes are being opened from 1990. 5. Apart from that even in the year 1990, the managing committee of the primary section donated certain sums to the secondary section for development since Higher Secondary classes are being opened from 1990. In this context, it is to be mentioned that originally the secondary unit which was available in the institution was extended upto Class -XII. Therefore the plinth of submission of the petitioner is that the school is one as before. Therefore once a student admitted initially at the primary stage cannot be directed to sit in the admission test again in Class IV to get admission in Class-V. 6. Learned Counsel for the petitioner cited two important judgments before this Court. One is reported in AIR 1996 SC 118 (Principal, Cambridge School vs. Payal Gupta) in its paragraph 7 to establish that even a student who fails at any public examination shall not, on that account refused re-admission in the school or class by the school from which he appeared at such examination. If a student who fails at any public examination could not be denied re-admission in the school or class then it is beyond comprehension as to how a student who passed the public examination can be denied admission in a higher class in the same school from which he had appeared at such examination. That being so, the right of a student to continue his studies further in the higher class, in the same school, after passing any public examination, cannot be worsed that the right of a student who fails at any such public examination. Once a student is admitted to a school the same admission continues class after class until he passes the last examination for which the school gives therein and no fresh admission or re-admission is contemplated from one class to the another. Therefore, in a Higher Secondary School the examination of Xth class cannot be regarded as a terminal examination from those who is to continue their studies in XIth & XIIth classes of the said school. No separate criteria has been laid down in the rules for students passing class-X and wishing to continue their studies in XIth & XIIth classes. 7. He also cited another judgment reported in 1992(2) CHN 680 (B.B. Shikshalaya vs. D. Kar Gupta) which was arising out of a Single Bench judgment reported in AIR 1999 Calcitta 300 in its para 12. 7. He also cited another judgment reported in 1992(2) CHN 680 (B.B. Shikshalaya vs. D. Kar Gupta) which was arising out of a Single Bench judgment reported in AIR 1999 Calcitta 300 in its para 12. However, this court has dealt with the Division Bench judgment since such Single Bench judgment was tested by the Division Bench. 8. I find there also the learned Counsel appearing on behalf of the Institution made submission by saying that the primary section and secondary section of the school are governed by two different managing committees. It was further submitted that whereas the primary section is governed under the provisions of the West Bengal Primary Education Act, 1973, the Secondary Section is governed under the provision of West Bengal Secondary Education Act, 1963. The appellant also insisted for admission test. But the Appeal Court accepts the view point of the learned counsel appearing for the appellant. It was held by the Division Bench of this Court that the Higher Secondary School having Primary, Secondary and Higher Secondary departments with a ladies hostel of a student etc. and as per the respondents being original writ petitioners that aforementioned sections are run by the same managing committee. 9. There also the Division Bench of this Court considered the Supreme Court judgment as cited herein. 10. Lastly, the learned Counsel appearing for the petitioners relied upon an order passed by this Court on 11th May, 1999 in W.P. No. 9044(W) of 1999 copy of which is annexed at page 95 of the annexure-I herein by citing a quoted portion therein: "Without prejudice to the rights and contentions of the parties the students of the Primary Section are allowed to sit in the Admission Test along with others, but they will be given priority for Admission in the High School since they are the part and parcel of the Primary Institution of the School. 11. He stressed very much in respect of the last part of the order by interpreting that Primary Institution is part and parcel of the High School and said no appeal was preferred from such order. Therefore the order is binding upon the parties. 12. After hearing the submissions of the writ petitioners at length, I called upon the respondents' Counsel to make his submissions. 13. Firstly, the respondent has drawn my attention to a memorandum issued by the Joint Secretary, Govt. Therefore the order is binding upon the parties. 12. After hearing the submissions of the writ petitioners at length, I called upon the respondents' Counsel to make his submissions. 13. Firstly, the respondent has drawn my attention to a memorandum issued by the Joint Secretary, Govt. of West Bengal, Education Department dated 5th December, 1986 being annexure-B to the petition. In this context, it is to be mentioned by this court that the learned counsel of the petitioners has also fairly made his submissions also in respect of this Memorandum. 14. It appears from the Memorandum that the Joint Secretary of the Education Department has specifically made two conditions therein that: (a) the primary and secondary sections of the institution should function as separate units, the existing integrated character being discontinued; b) the institution should be open for admission to all students. 15. According to the learned Counsel, the Primary Education is a fundamental right of a student and it is governed by the West Bengal Primary Education Act, 1973. Such right unless extended to the extent of Secondary and Higher Secondary level, the same should be governed by the statute. Statute gives power to the authority and such authority treated two institutions separate and also made open for admission to all. Therefore, there is no mistake on the part of the Secondary Institution to proceed accordingly. 16. The Supreme Court judgment as reported in AIR 1996 SC 118 (supra) cannot find place in this application specially when that dispute therein arise about the admission from Class-X upwards i.e. Class XI after passing public examination which is also similar to our State and governed by the West Bengal Secondary Education Act, 1963. 17. So far the Division Bench judgment is concerned the same was allowed because two schools were governed by the same managing committee which is different from the matter herein where two units are governed by the different managing committees. Therefore even the Division Bench judgment cannot be applicable in this case. 18. 17. So far the Division Bench judgment is concerned the same was allowed because two schools were governed by the same managing committee which is different from the matter herein where two units are governed by the different managing committees. Therefore even the Division Bench judgment cannot be applicable in this case. 18. Apart from distinguishing the judgment he relied upon a judgment of the Supreme Court reported in AIR 2000 SC 498 (Indra Sawhney vs. Union of India) in its head notes as well as paragraphs 66 & 67 to establish that Parliament and Legislatures cannot transgress the basic feature of the Constitution namely the principle of equality enshrined in Article 14 of which Article 16(1) is a facet. 19. I have carefully considered the submissions made by the parties. It is an admitted position that two institutions are now either two institutions or the units of one institution are governed by different managing committees. This is obvious because of the intervention of the West Bengal Primary Education Act, 1973 and West Bengal Secondary Education Act, 1963. But both the Acts came into force before the management was taken over by the State on and from 1st January, 1987. If it is so, the introduction of the examination system from Classes IV & V is out-come of an administrative order of the authority not backed by any legislative Act. 20. It is further significant that although both the schools were managed by the Kalyani University prior to 1987 but the same was affiliated and or recognised by the respective Act of the State either by West Bengal Primary Education Act, 1973 or West Bengal Secondary Education Act, 1963 during the tenure of management in between 1972 to 1976. Functioning of different managing committees ought to be different because of the reason or intervention of the different Acts. But court has to construe as to whether two units are integral part of one institution or not. The same is established beyond doubt that two units are integral part of one institution. 21. Under the circumstances the last part of the 1st clause of the Memorandum being dated 5th December, 1986 being annexure-B to the writ petition to the extent. The same is established beyond doubt that two units are integral part of one institution. 21. Under the circumstances the last part of the 1st clause of the Memorandum being dated 5th December, 1986 being annexure-B to the writ petition to the extent. ".....the existing integrated character being dis-continued" is treated as superfluous by the Court when it is an admitted position by such Memorandum itself that Primary and Secondary Sections of the Institution should function as separate units. 22. Moreover, condition (j) of such Memorandum being "the institution should be open for admission to all students" cannot be conjunctive with condition (a) as above. I have come to know one factual position which has not been contradicted by the respondents that in the primary section there are 72 to 80 students when the seats of the bottom level of secondary unit is about 120 in number. There the condition (j) as above does not create any embargo for admission either for the outside students or for the students of the primary unit of the institution. Therefore, condition (j) under the Memorandum cannot be construed for admission test in respect of admission in the secondary unit by the outsiders as well as by the students who are studying in the primary unit of the institution. 23. Some of the events even up to the period of 1990 in respect of both the units or the institutions cannot be ignored by saying that it has happened due to transitional period when admittedly the two units were separated w.e.f. 1st January, 1987. Had it been so just before and after the period of 1987 this Court could have come to the conclusion that due to such transitional period there were inter-change of the teachers etc. but that is not so. Such type of various events even long after the separation of the units which can be construed both the units are integral part of one institution. 24. It also appears that an interim order of this Court in a different matter was relied upon by the parties and various discussions were held. but that is not so. Such type of various events even long after the separation of the units which can be construed both the units are integral part of one institution. 24. It also appears that an interim order of this Court in a different matter was relied upon by the parties and various discussions were held. Even thereafter students of the primary unit was given preferential marks of 5% or 10% or weitage which are available from the records, such records are either in the form of notice, the representative of the managing committee or resolution of the managing committee itself or from the recording of the concerned District Inspector of Schools (SE), Nadia. Therefore, Court also cannot ignore such weitage given by various school authorities as well as highest authority of the State in respect of the educational matter in a District. Therefore, court can also draw inference in this respect that if the status of other primary institutions are similar with the primary unit of the institution in the eyes of them, then there is no necessity of giving weitage. 25. In any event, such interim order was made without prejudice to the rights and contentions to test the bona fide of the students before the examination giving weitage but without construing that two units are separate from each other. 26. Moreover, such interim order which has been passed without prejudice to the rights and contentions of the parties at an interim stage of hearing of a writ petition cannot bind in resolving the issue finally in respect of different writ matters although similarly placed, specially, on the various other documents and upon observing the approach of the authority to give weitage to the students of the primary section. 27. Now the question arose in respect of analysis of the cases cited herein. The guiding factor of the reported decision of the Supreme Court is not the public examination or passing or not passing Class-X and admission in Class XI, but the cardinal principle is two words "terminal examination". We are all aware that in this State there is an examination called Secondary Examination or 'Madhyamik' which is an examination conducted by the Secondary Board itself and the another examination or 'Uchhya Madhyamik' also to be conducted by the Higher Secondary Board. We are all aware that in this State there is an examination called Secondary Examination or 'Madhyamik' which is an examination conducted by the Secondary Board itself and the another examination or 'Uchhya Madhyamik' also to be conducted by the Higher Secondary Board. If the Supreme Court, even thereafter, held such type of examination which is construed as public examination is not terminal then obviously a primary section or unit or institution connected with a Secondary or Higher Secondary Institution, save for the management by different for the sake of the different Acts cannot be construed as 'terminal examination' at all. Therefore, entry in Class-I and exit in Class-XII and these two points are terminal for the sake of examination irrespective of management for the sake of convenience and Act. Hence the students are entitled to study year after year as if they are studying in the one institution is honest in evaluation the standard of students from their primary unit and from outside they may evaluate even from Class-V onwards up to the level when they making themselves sent up for the purpose of sitting in Secondary and Higher Secondary Examinations. Therefore, merely, making a separate unit for the sake of applicability of the two Acts, one is West Bengal Primary Education Act, 1973 and another is West Bengal Secondary Education Act, 1963, students and the guardians of the students cannot be harassed in the manner as proposed. Moreover, there is no darth of admission from outside as per the availability of the seats. Hence, the Supreme Court judgment cannot be ignored in the manner as proposed that since it is a matter of Class-X to Class-XI which are governed by the same Act and question of public examination is involved, therefore the same is not applicable herein. 28. So far the Division Bench judgment is concerned, sole question is restricted on the one managing committee. In the instant case, as I have already hold various aspects and also that much prior to taking over the management of the institution by the State both the Act came into force and the institutions were even then governed by such Acts and did not take such steps of introduction of admission test by way of interpreting the office order cannot uproot the valuable right of legitimate expectation of the students of Class-IV in the manner and thereby much more exhaustive. 29. 29. It is needless to mention that by now it is well settled that legitimate expectation not only can be used as a shield but also as a sword and it is only duty of the court is to give shape. Therefore, such is given under this judgment and order by saying that there is no necessity of admission test of the students from Class-IV to Class-V of the institution although primary and secondary units of such institution is running for the sake of different Acts even by the different managing committees. 30. Thus, the writ petition stands disposed of. No order is passed as to costs. 31. All parties are to act on a xeroxed signed copy of this operative part of the judgment on the usual undertaking. Writ petition disposed of.