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2008 DIGILAW 1781 (PAT)

Kula Nand Jha v. State Of Bihar

2008-12-18

NAVANITI PRASAD SINGH

body2008
JUDGEMENT 1. Petitioner by this writ application has challenged the notification issued by the State Government by which it has directed the Bihar School Examination Board to hold the examination of the petitioner for the Physical Teachers Training Course. The notification (Annexure-16), in terms, directs the students to appear in another institution for sent up examination and then to fill up and submit their forms to the Board without fixing any date for final examination. 2. It is submitted that the sent up examinations are internal examinations, which could not be held in another college. Thus, in effect, the petitioner wants that notification be re-issued by the State Government merely directing the Board to conduct the examination of the petitioner and then leave it to the Board to do its job. 3. On behalf of the Examination Board, it is submitted that the students are of the batch 1987-88 and after the National Council for Teachers Education Act came into force on 17.8.1995 it was extended to Physical Teachers Training Course with effect from 17.8.2005. The institution of the petitioner is yet to get recognization. Under these circumstances, reliance was placed on several judgments of this Court including Division Bench judgment to show that where the institution had either not applied or was de-recognized on coming into force of the National Council for Teachers Education Act, examination even for past batch could not be permitted. Principally, reliance was placed on a recent Division Bench judgment rendered in L.P.A. No. 972 of 2007 on 23.5.2008 and a Single Judge decision of this Court in CWJC No. 6335 of 2006, dated 22.9.2006. 4. At the Bar, it is submitted that the order in the case of P.T. Usha Physical Training College, Motihari has been dealt with by the Division Bench as well. 5. At the very outset, l may note that l am unable to follow those judgments because of peculiar facts emanating in this case. With this very prayer, petitioner had come to this Court with the same prayer and this Court in CWJC No. 10185 of 2002 had allowed the writ application by judgment dated 7.4.2003. State and the Examination Board were the parties and direction was issued to the State to take necessary steps for the examination of the petitioner. This judgment has not been reversed/modified/altered in any manner at the instance of any party. State and the Examination Board were the parties and direction was issued to the State to take necessary steps for the examination of the petitioner. This judgment has not been reversed/modified/altered in any manner at the instance of any party. It has thus been attained finality inter party. 6. It is well established that a judgment inter party, however, erroneous, cannot be refused to be given effect to. Thus, even though the Division Bench in LPA in law takes a different view, the judgment inter party would continue to bind on facts. However, even so far as law is concerned, I do not find that the two judgments are otherwise. In the LPA judgment in the case of Kumari Ranjana Mishra & Ors. vs. The State of Bihar & Ors., in para 6 the Court has itself noted the distinction. The Court has categorically held that there was nothing on the record to show that the State Government directed the Board to allow the students of the college to appear in examination and there was no dispute, at any point of time that Government issued any such direction. 7. In the present case, not only the Writ Court has issued a writ for holding the examination as recently as in 2003, the State Government has also issued direction to hold the examination. Secondly, as noted above, the provision of the National Council for Teachers Education Act was extended to Physical Training Teachers Course only recently on 17.8.2005 and the petitioners institution has made an application, inspections have been made and the matter is pending grant of recognization. Thus, recognization has not been rejected as yet as was the facts in other two cases, referred to above. That being the situation, on facts the cases relied on by the respondent-Board are distinguishable and not applicable. 8. In my view, the judgment of the Apex Court in the case of Sunil Kumar Parimal & Anr. vs. The State of Bihar & Ors. Since reported in 2007(4) PLJR (SC)163 governs the case. 9. Thus, in my view, it cannot be said that this Court cannot grant relief, as prayed by the petitioner. In facts, the relief was substantially granted in the earlier writ petition itself but for different reasons it could not fructify and now it is sought to be enforced. 10. Since reported in 2007(4) PLJR (SC)163 governs the case. 9. Thus, in my view, it cannot be said that this Court cannot grant relief, as prayed by the petitioner. In facts, the relief was substantially granted in the earlier writ petition itself but for different reasons it could not fructify and now it is sought to be enforced. 10. What has been submitted now with regard to Annexure-16 is that it is not open for the State Government to direct holding of internal examination in another institution. It is submitted that historically this what was happening long back when the recognization of the institution was pending with the State Government and there was lack of infrastructure but once infrastructure was completed and recognization duly granted by the State Government, State Government itself withdrew such a condition. This, in my view, is clearly apparent from Annexure-2, the direction of the State Government to the institution directly issued as far back as in 1989 itself. Once it is found that the direction, as contained in Annexure-16, was wrong then it has to be held that the State Government would be obliged to issue fresh direction to the Bihar School Examination Board in terms of Rule 7 of the Bihar School Examination Board Rules to hold the examination of the petitioner. On such direction being issued to the Board by the State Government, the Board would fix the time table for the examination and conduct the same as soon as possible preferably within three months from today unless there is any other impediment in law for the same. Thus, Annexure-16 has to be quashed accordingly with the direction aforesaid. 11. The writ petition is allowed.