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2006 DIGILAW 798 (CAL)

AMAR KUMAR BHOWMICK v. STATE OF WEST BENGAL

2006-12-18

DEBASISH KAR GUPTA

body2006
Before Mr. Justice Debasish Kar Gupta, J. ( 1 ) LET affidavit-of-service filed on behalf of the petitioner be kept on the record. ( 2 ) THE matter is taken up for final hearing on the basis of the documents available-on-record with consent of the parties. ( 3 ) THIS application is filed by the guardians of six students of class -X of Children's Villa for direction to allow their wards to sit for the ensuing Madhyamik Pariksha, 2007 conducted by the West Bengal Board of Secondary Education form any recognized School as regular candidates. ( 4 ) THE fact of the case in a nutshell is this the wards of the petitioners were duly attached to the aforesaid School. The aforesaid School was provisionally affiliated by the Council for the Indian School Certificate examination, New Delhi, in the year 1999. Such provisional affiliation was upto March 31, 2002, which was subsequently extended upto March 2006. The petitioners came to know from the open circular of the President, managing Committee of the aforesaid School that an application was made for recognition of the aforesaid School under the West Bengal Board of secondary Education on December 31, 2004. The petitioners further came to know that from the communication dated June 9, 2005, that the Assistant secretary, Government of West Bengal, School Education Department, secondary Branch requested the authority of the aforesaid School for a meeting regarding their prayer for recognition of the School without financial assistance. According to the petitioners they further came to know that a District Level Inspection Team visited the aforesaid School on May 5, 2006. The petitioners also came to know that the aforesaid District Level inspection Team recommended for recognition of that School. Thereafter, the petitioners came to know that the last date of submission forms by the candidates through a recognized School is December 18, 2006 to appear in the ensuing Madhyamik Pariksha, 2007 to be conducted by the West bengal Board of Secondary Education from any recognised School. Hence this writ application. ( 5 ) APPEARING on behalf of the petitioners Mr. Asok De, learned Senior advocate, at the very outset submits that he is not pressing the prayer to allow their wards to appear in the aforesaid examination as regular candidate. His prayer is to allow the wards of the petitioners to appear in the aforesaid examination as external candidates. ( 5 ) APPEARING on behalf of the petitioners Mr. Asok De, learned Senior advocate, at the very outset submits that he is not pressing the prayer to allow their wards to appear in the aforesaid examination as regular candidate. His prayer is to allow the wards of the petitioners to appear in the aforesaid examination as external candidates. Drawing my attention towards the Clause (xx) of Regulation 2 of the West Bengal Board of secondary Education (Examination) Regulations, 2001 (hereinafter referred to as the said Regulations), Mr. De submits that facility to appear as external candidate in the aforesaid examination is available to the wards of the petitioners. The next submission of Mr. De is that in accordance with the provisions of Regulation 7 of the said Regulations, a candidate, on completion of prescribed course of studies intending to appear as external, shall have to be registered and to obtain registration certificate with a number for enrolment as test examinee before appearing at the madhyamik Pariksha (Secondary Examination ). According to Mr. De the school made an application before the West Bengal Board of Secondary education for recognition. The wards of the petitioners, completed their studies of Class-X on the basis of the syllabus of the Board. In view of the above the wards of the petitioners are entitled to register their names for appearing in the Madhyamik Pariksha (Secondary Examination ). ( 6 ) RELYING upon the decision of Rajendra Prasad Mathur v. Karnataka university and Anr. , reported in AIR 1986 SC 1448 , Mr. De submits that the fault, if any, lies with the aforesaid School which admitted the wards of the petitioners in the aforesaid School. In a similar situation the students were allowed to continue their studies in their respective Engineering Colleges in which they were granted admission. ( 7 ) RELYING upon an unreported decision of this High Court in the case of Managing Committee, Mother Centenary Institute v. State of West bengal and Ors. , W. P. 22133 (W) of 2000 which was disposed of on January 8, 2001, Mr. De submits that in a similar situation the concerned students were allowed to appear in the Madhyamik Examination, 2001 as external candidates. A copy of such decision is kept on the record. ( 8 ) APPEARING on behalf of the respondent Nos. 1 and 2 Mr. De submits that in a similar situation the concerned students were allowed to appear in the Madhyamik Examination, 2001 as external candidates. A copy of such decision is kept on the record. ( 8 ) APPEARING on behalf of the respondent Nos. 1 and 2 Mr. Sumit Kumar panja, learned Advocate draws my attention towards the provisions of clause (xx) of Regulation 2 of the said Regulations to submit that for the purpose of treating a candidate as external candidate he is to get his name registered in such examination and then he is to appear in the test examination. Mr. Panja further draws my attention towards the provisions of Clause 7 of the said regulations to submit that the registration of the name and appearing in the test examination are the condition precedent to appear in the Madhyamik Pariksha (Secondary Examination) conducted by the West Bengal Board of Secondary Education. Mr. Panja draws my attention towards the guidelines for appearing at the Madhyamik Pariksha (S. E.), 2007 as external candidate to show that in accordance with the provisions of Clause D (e), the last date of submission of completed registration forms was February 22, 2006. Mr. Panja further draws my attention towards the provisions of Clause 8 (c) of the above guidelines to show that the candidate after such registration would be required to pass the test examination conducted by the Board sometimes in July, 2006 at selected center. He further submits that the wards of the petitioners did not get their names registered in accordance with the aforesaid provisions to appear in the test examination from any selected center. None of them appeared in the test examination from a selected center. As a result they are not entitled to get any order from this Court to fill up the form to appear in the Madhyamik Pariksha to be conducted by the West Bengal Board of secondary Education in the year 2007. ( 9 ) RELYING upon the decision of C. B. S. C. and Anr. v. P. Sunil Kumar and ors. , reported in AIR 1998 SC 2235 Mr. Panja submits that in view of the settled principles of law the wards of the petitioners are not entitled to get any relief from this Court. ( 10 ) APPEARING on behalf of the respondent Nos. 3 and 4 Ms. v. P. Sunil Kumar and ors. , reported in AIR 1998 SC 2235 Mr. Panja submits that in view of the settled principles of law the wards of the petitioners are not entitled to get any relief from this Court. ( 10 ) APPEARING on behalf of the respondent Nos. 3 and 4 Ms. Debjani sengupta, learned Advocate submits that the School Authority submitted their application for getting recognition from the West Bengal Board of secondary Education as back as on December 31, 2004. On the basis of the communication dated June 9, 2005 (Annexure P "4" at page 28 of the writ application) the authority of the aforesaid school met with the Assistant secretary, Government of West Bengal, School Education Department, secondary Branch. On the basis of such instruction the School Authority submitted an undertaking to the effect that the school would not claim any financial assistance from the State Government. But recognition is yet to be granted by the West Bengal Board of Secondary Educntion. ( 11 ) HAVING heard the learned Counsels appearing on behalf of the respective parties, as also taking into consideration the materials available on record, I find from the provisions of Clause (xx) of the Regulation 2 of the said Regulations that in order to be treated as an external candidate, a candidate is required to get his name registered for such examination and to pass the Madhyamik Test Pariksha or any other equivalent examination recognised by the West Bengal Board of Secondary examination. In order to adjudicate the matter properly, the above provisions are quoted below: - " (xx) 'external candidate' means a candidate who, after passing the Madhyamik Test Pariksha or any other equivalent examination recognized by the Board, is registered for such examination. This facility is available to those who could not prosecute studies in IX and X or exhausted all chances for appearing at the Madhyamik Pariksha (Secondary Examination ). " ( 12 ) IT has further been made clear that in accordance with the provisions of Regulation 7 of the said Regulations that a candidate promoted to Class-IX as regular candidate or a candidate of equivalent prescribed post of studies intending to appear as external one should have to be registered and obtain registration certificate with a number for enrolment as test examinee before appearing at Madhyamik Pariksha (SE ). For better appreciation of the above provision, the same is quoted below: - "7. Registration of external candidate.- A candidate promoted to Class-IX as Regular candidate or a candidate on completion of prescribed course of studies intending to appear as external one shall have to be registered and obtain registration certificate with a number for enrolment as test examinee before appearing at the madhyamik Pariksha (Secondary Examination ). " ( 13 ) IT further appears from the guidelines for appearing at the madhyamik Pariksha (S. E.), 2007 as an external candidate, the last date of submission of completed registration form was February 22, 2006. It further appears from the aforesaid guidelines the period of test examination conducted by the Board at Selected Centres expired in July 2006. ( 14 ) I do not find from the materials available-on-record that any of the wards of the petitioners' obtained registration certificates in accordance with the above provisions or any of them appeared in the test examination conducted by the Board at any Selected Centres or about July 2006. ( 15 ) IN view of the above, the wards of the petitioners are not entitled to appear in the ensuing Madhyamik Pariksha, 2007 to be conducted by the West Bengal Board of Secondary Education as external candidates. ( 16 ) I do not agree with the submissions, of Mr. Asok De, learned senior Advocate, appearing on behalf of the petitioner that in view of the decision of Rajendra Prasad Mathur (supra) the wards of the petitioners are entitled to appear in the aforesaid examination. The relevant portions of the said decision are quoted below: - "8. We accordingly endorse the view taken by the learned judge and affirmed by the Division Bench of the High Court. But, the question still remains whether we should allow the appellants to continue their studies in the respective Engineering Colleges in which they were admitted. It was strenuously pressed upon us on behalf of the appellants that under the orders initially of the learned judge and thereafter of this Court they have been pursuing their course of study in the respective Engineering Colleges and their admissions should not now be disturbed because if they are now thrown out after a period of almost four years since their admission their whole future will be blighted. Now it is true that the appellants were not eligible for admission to the Engineering Degree Course and they had no legitimate claim to such admission. But, it must be noted that the blame for their wrongful admission must lie more upon the Engineering Colleges which granted admission than upon the appellants. It is quite possible that the appellants did not know that neither the Higher Secondary Examination of the Secondary education Boa'rd, Rajasthan nor the first year B. Sc. Examination of the Rajasthan and Udaipur Universities was recognised as equivalent to the Pre-University Examination of the Pre-University Education board, Bangalore. The appellants being young students from rajasthan might have presumed that since they had passed the first year B. Sc. Examination of the Rajasthan or Udaipur University or in any event the Higher Secondary Examination of the Secondary education Board, Rajasthan they were eligible for admission: The fault lies with the Engineering Colleges which admitted the appellants because the Principals of these Engineering Colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants. We do not see why the appellants should suffer for the sins of the managements' of these Engineering Colleges. We would therefore, notwithstanding the view taken by us in this judgment allow the appellants to continue their studies in the respective engineering Colleges in which they were granted admission. But, we do feel that against the erring Engineering Colleges the Karnataka university shoufd take appropriate action because the managements of these Engineering Colleges have not only admitted students ineligible for admission but thereby deprive an equal number of eligible students from getting admission to the Engineering Degree Course. We also endorse the directions given by the (earned Judge in the penultimate paragraph of his judgment with a view to preventing admission of ineligible students. We also endorse the directions given by the (earned Judge in the penultimate paragraph of his judgment with a view to preventing admission of ineligible students. " ( 17 ) IT appears that on a different context altogether the Apex Court came to a conclusion that the students suffered due to the fault of the authority of the concerned college which had admitted the students in that college but in the instant case, I find that the authority of the School, as per Open Circular dated April 6, 2005, (Annexure P-3 at page 26 of the writ application) had informed all concerned that the students of Class-X for the year 2006 would be treated as last batch to appear in the I. C. S. E examination. Therefore, in my opinion, there was no fault on the part of the authority. With regard to the unreported decision of this High Court in the Managing Committee, Mother Centenary Institute (supra) I find that as per the order dated January 8, 2001, the same was decided on the basis of the facts and circumstances of that case with the observations that the order was passed without any precedent. For better appreciation of this case, the relevant paragraph of the above order dated January 8, 2001 passed in the matter of Managing Committee, Mother Centenary institute (supra) are quoted below : - "having regard to the fact that the interim order dated 10th july; 2000 passed by this Court in Writ Petition No. 9896 (W) of 2000 and more particularly the fact as submitted by the learned advocate for the respondents that because of the recent flood in the State necessary steps for recognition of the School in question could not be taken up, I dispose of this writ petition by directing the board of Secondary Education to permit the candidates as may be forwarded by the Head-Mistress of Mother Centenary Institute, nidaya Ghat, Pratap Nagar, District-Nadia as external candidates on regular syllabus to appear in the Madhyamik Examination, 2001. It is made clear that this order has been made because of the fact that the respondent authorities failed to recognize the school in question as High School even though necessary orders to that effect have already been passed by this Court. This order is, therefore, passed without any precedent. It is made clear that this order has been made because of the fact that the respondent authorities failed to recognize the school in question as High School even though necessary orders to that effect have already been passed by this Court. This order is, therefore, passed without any precedent. " ( 18 ) SO, in my opinion, the above decision has no manner of application in this case. ( 19 ) I fully agree with the submission of Mr. Sumit Kumar Panja, learned Advocate appearing on behalf of the respondent Nos. 1 and 2 that in view of the decision of CBSE and Anr. v. P. Sun/7 Kumar and Ors. , (supra)the wards of the petitioners are not entitled to appear in the Madhyamik pariksha, 2007 to be conducted by the West Bengal Board of Secondary education. Relevant portions of the said decision are quoted below: - "4. On the admitted position and in view of the law laid down by this Court, referred to above, Mr. Altaf Ahmed, Addl. Solicitor general, appearing for the appellants contended that the impugned direction of the High Court is wholly erroneous and cannot be sustained. The learned Counsel appearing for the students in different appeals did not dispute the position that the schools from where their clients have pursued their studies are not yet affiliated to the Central Board of Secondary Education. But, they mainly contended that the students having been permitted to appear to the examination and they having been successful and certificates have been issued in their favour, it would work out great injustice, if the impugned directions of the High Court are set aside at this length of time. In support of this contention they placed reliance on a recent decision of this Court in the case of Central Board of Secondary education v. Nikhil Gulati, 1998 (3) SCC 5 : AIR 1998 SC 1205 . In the aforesaid case, this Court deprecated the practice followed by the High Court to issue direction and also observed that such aberrations should not be treated as a precedent in future but did not interfere with the ultimate direction of the High Court on the ground that fond hopes have been raised in the minds of the students and therefore it would be inappropriate to interfere under article 136 of the Constitution. We are unable to apply the reasoning given in the aforesaid case, inasmuch as there is no iota of material placed before us to indicate that the Central Board of Secondary education, the appellants herein, either directly or indirectly had held out to the students at any point of time that the institutions in which they are prosecuting their studies have been affiliated or are going to be affiliated at a near future. We are conscious of the fact that our order setting aside the impugned directions of the High court would cause injustice to these students. But 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 students. In view of the aforesaid premises, we set aside the impugned judgment of the Division Bench of the Kerala High Court as well as the interim orders issued by the single Judge in several petitions out of which the writ appeals arose and the writ petitions filed by the respondents stand dismissed. These appeals are allowed but in the circumstances there will be no order as to costs. Appeal allowed. " ( 20 ) IN view of the above observations, the writ application stands dismissed. ( 21 ) THERE will be no order as to costs. ( 22 ) DOCUMENTS produced before this Court be kept with the record. ( 23 ) URGENT xerox certified copy, if applied for, be given to the parties on priority basis. As a special case, let xerox plain copy of this order, duly counter-signed by the Assistant Registrar (Court), be made available to the learned advocates appearing on behalf of the respective parties on their usual undertaking.