Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 159 (CAL)

Syed Abdus Sultan v. State of West Bengal

2001-03-16

HRISHIKESH BANERJI, TARUN CHATTERJEE

body2001
JUDGMENT Chatterjee, J. 1. When some arguments were advanced on the question of grant of interim relief during the pendency of the appeal, the learned Counsel for the parties suggested before us that the appeal itself can be disposed of without any formalities being complied with and, accordingly, we accepted the suggestion of the learned Counsel for the parties and took up the hearing of the appeal which is now being disposed of by this judgment. 2. This appeal is preferred against a judgment and/or order of a learned Judge of this Court passed on 5th December, 2000 in W.P. No. 17034 (W) of 2000 by which the learned Judge dismissed the writ application of the writ petitioner which was moved by the writ petitioner, viz., Syed Abdus Sultan, father of Syed Mustafa Sadat for a direction upon the West Bengal Council of Higher Secondary Education (hereinafter referred to as "the Council") to permit Syed Mustafa Sadat to appear in the ensuing Higher Secondary Examination which will be held in the third week of March 2001 in the science stream (pure). 3. In our view, the judgment and/or order of the learned Judge was passed on a correct proposition of law and, therefore, there is no reason to upset the judgment and/or order of the trial Court for the reasons mentioned hereinafter. 4. The writ petitioner is the father of Syed Mustafa Sadat. The son, Syed Mustafa Sadat passed the Madhyamik Examination in Second Division in the year 1999 securing only 31 marks in Physical Science. In spite of the fact, that Regulation 14 imposed bar in admitting such a student in Class Xl with Physics and Chemistry as subjects, the School Authorities admitted the son of the writ petitioner in Class XI (Science) with Physics, Chemistry and Mathematics as the main subjects and the son of the writ petitioner was promoted to Class XII by the School Authorities. Since the Council had refused to register his name on the ground of violation of Regulation 14, the writ petitioner, the father of Syed Mustafa Sadat came up in this Court under Article 226 of the Constitution, which was rejected by the trial Court by the impugned order. 5. Feeling aggrieved by the order of the trial Court passed in the manner indicated above, this appeal has been preferred by the appellant, the father of the student, viz., Syed Abdus Sultan. 5. Feeling aggrieved by the order of the trial Court passed in the manner indicated above, this appeal has been preferred by the appellant, the father of the student, viz., Syed Abdus Sultan. 6. We have heard the learned Counsel for the parties at length. We have also considered the judgment under appeal and the other materials-on-record. After going through the judgment under appeal and the materials-on-record, we are of the view that the trial Court was justified in rejecting the writ application relying on Regulation 14. We are in agreement with the views expressed by the learned trial Judge that Regulation 14 being a statutory provision, the same cannot be said to be a directory one. 7. Mr. Haradhan Banerjee, appearing on behalf of the appellant, however, in support of his contention submitted that under Section 237 of the Contract Act, it must be held that the School Authorities being an agent of the Council and in view of the admitted fact that the School Authorities notwithstanding the prohibition mentioned in Regulation 14 having admitted the student in Class XI (Science) and accepted fees, the Council being the principal cannot refuse to grant registration at this stage. In support of this contention, Mr. Banerjee relied on a decision in the case of (1) M.N. Shankar v. M.S.B. of S. & H. S. Education, AIR 1988 Bombay 234, and also a decision of the Supreme Court in the case of (2) Shri Krishan v. Kurukshetra University, AIR 1976 Supreme Court 376. This question has already been taken into consideration by a Division Bench of this Court recently in a decision reported in (3) 1999 (2) Calcutta Law Times 1, Ashoke Saha v. State of West Bengal & Ors., from where we find that it has been found that Regulation 14 was a mandatory one and the question of relationship between the Council and the School Authorities as principal and agent cannot arise at all. It has also been held in the said decision that the principles of Section 237 of the Contract Act cannot have any application to the case of this nature. It has also been held in the said decision that the principles of Section 237 of the Contract Act cannot have any application to the case of this nature. In any view of the matter, the question of regularisation and/or registration of the name of the son of the appellant cannot also be considered in view of the recent decisions of the Supreme Court in the cases of (4) Mallikarjuna Mudhagal Nagappa v. State of Karnataka, 2000 (7) SCC 238 ; (5) Council For Indian School Certificate Examination v. Isha Mittal & Anr., 2000 (7) SCC 521 ; and (6) Maharishi Dayanand University v. M. L. R. Saraswati College of Education, 2000 (7) SCC 746 . This question has also been set at rest in an unreported decision of this Court in the case of (7) West Bengal Council of Higher Secondary Education & Ors. v. Subhabrata Dutta, disposed of on 10th May, 1999 (M.A.T. No. 129 of 1999, C.A.N. No. 405 of 1999, W.P. No. 20651 (W) of 1998). 8. In view of the aforesaid legal position being settled by the Supreme Court as well as by the Division Bench of this Court, we do not find any merit in this appeal. Accordingly, the appeal is dismissed. 9. There will be no order as to costs. In view of the order passed in this appeal, the application for stay and grant of an interim order becomes infructuous and, accordingly, it is also dismissed. Banerji, J.: I agree.