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2009 DIGILAW 520 (JK)

Surabi Institute of Ett Kathua v. State

2009-10-30

NISAR AHMAD KAKRU

body2009
1. The Petitioners-Institutions, having erred by assuming unto themselves, the power of admitting the students to their Institutions for Diploma in Elementary Teachers Training (ETT) without obtaining ˜No Objection Certificate™ (NOC) from the Government, could neither get the registration nor allocation of the students, consequently invocation of extraordinary writ jurisdiction of this Court at Jammu by medium of OWP 588/2008 followed by OWP 1030/08, in quick succession, to compel the Jammu & Kashmir Board of School Education (Board for short) to conduct the examination of the Petitioners-Institutions with the regular batch. 2. This is the third round of litigation. In the first writ petition OWP 558/2008 the Petitioners-Institutions had sought indulgence of the Court for grant of ˜No Objection Certificate™ and in the second, OWP 1030/2008, allocation of the students but controversy in the petition on hand centers around the eligibility of the students of the Petitioners-Institutions to appear in the exami- nation, obviously the earlier writ petitions have no much bearing on the case on hand, I would therefore like to restrict to the narration of bare minimum facts necessary to understand the controversy. To begin with, it will be appropriate to reproduce the directions: Direction dated 25.6.2008 passed in OWP 558/2008 The petition is disposed of with a direction to the respondents to pass appropriate orders within period of one week regarding issuance of NOC in favour of the petitioners. In case NOC is granted, allotment of students as permissible under rules shall be made by process of ensuing counseling. Writ petition along with connected CMP shall stand disposed of". Direction dated 1-1-2009 passed in 1030/2008 lead case being OWP 1014/2008 Learned counsel for the petitioners states that today the court has disposed of OWP NO. 1004/2008 titled Shikhsa Niketan and R. M. ETT and Ors. Vs. State and Ors, which was the similar matter. The learned counsel states that as the issues involved are the same, this bunch of petitions may also be disposed of in terms of the judgment in the said case. The court while disposing of the said writ petition observed as under:- In the facts and circumstances of the case and in the interest of justice, it is directed that let the petitioners file a representation to the respon- dents regarding allocation of the students to the Institutes concerned. The court while disposing of the said writ petition observed as under:- In the facts and circumstances of the case and in the interest of justice, it is directed that let the petitioners file a representation to the respon- dents regarding allocation of the students to the Institutes concerned. In case, such representation is filed, the same shall be given due consid- eration and disposed of by the respondents by passing a speaking order within one week from the date representation is received by the respon- dents. Needless to mention that while considering the matter, the respondents shall hear the petitioners and consider the options of the students, if any. The matter be dealt with in light of the rules and scheme governing the filed. On the submissions, this bunch of petitions is disposed of in terms of the aforementioned order. Order accordingly." 3. In pursuance of the directions aforementioned, claim of the Petitioners- Institutions was considered by the Respondent-Board but was rejected by a speaking order bearing No. FC (PS-JSA) B/JD/464 dated 15.01.2009 and the paragraph relevant to the petitioners is reproduced hereunder: Whereas, the Board is in the process of issuing afresh notification and any students who wants to take admission for the current academic sessions would be at liberty to do so provided that he is otherwise eligible. The institutes, therefore, would suffer no prejudice and would be eligible for considerations for receiving students during the process of counseling.� 4. The abovesaid order passed by the Board although takes care of the interests of the students, yet, the Petitioners-Institutions along with three more Institutions, filed a fresh representation before the Government which evoked attention of the Government by constituting a Committee vide Government order No. 103-Edu of 2009 dated 06.02.2009 comprising of the Special Secretary (K), Education Department, Chairman, Secretary J&K BOSE, Member Secretary and Shri Khurshid Ahmad, Joint Secretary, BOSE to examine the issue of allocation of the students in ETTC to the petitioners-institutions including other non Government Institutions of the Jammu Division. Record produced by Mr. Record produced by Mr. Kawoosa, further reveals that on the recommendation of the Committee, the unauthorized admission of the students by the petitioners-Institutions was taken kindly by the Government, accordingly, an order bearing No. 152-Edu of 2009 dated 02.03.2009 favouring the Petitioners-Institutions which is extracted: GOVERNMENT OF JAMMU AND KASHMIR CIVIL SECRETARIAT EDUCATION DEPARTMENT Subject: Grant of admission of the candidates in ETT Institution for the Ses- sion 2007-09. Government order No: 152 Edu. Of 2009. Dated: 02.03.2009. In order to grant admission of the candidates in ETT institutions for the academic session 2007-09 in Jammu Division, it is hereby ordered that: i) A special batch 2007-09 of ETT training shall be started in Jammu Division so as to compensate the non-government institutions and in the interest of the candidates who are mostly non-state subject as a one time exception as a welfare measure. ii) The admission for the Academic Session (Special batch 2007-09 shall be conducted in such a manner that it should not affect the already running ETT classes for which the admission has already been made through centralized counseling, conducted by the J&K BOSE as per admission procedure; iii) JKBOSE shall notify special admission cum Registration dates and all the ETT institutions in Jammu Division in whose favour Govt. has issued NOC for the session 2007-09 shall submit fully prepared admission list and Registration by or before 28th February 2009 with a penalty of Rs. 1000/- per candidate and other Board Fee/ Charges; iv) Ist year Examination for the Special Session shall be conducted after the completion of 180 academic days. v) Only those candidates shall be eligible for admission who have passed their 12th class or equivalent by or before October, 2007 with 45% and above marks for general candidates and 40% and above for reserved category candidates, coupl e d with determination of eligibility and verification by the J&K BOSE. vi) A mechanism of regular and recurrent monitoring of the ETT institutions, bi-monthly Inspections on rotational basis by the officers of JKBOSE, Principals of concerned DIETs and officers of the Administrative Department of School Education be setup; vii) All the Non government institutions shall check eligibility of the candidates in accordance with the Board Prospectus cum Information Brochure 2007-09 already issued by the Board. viii) The management of the institutions shall also furnish an affidavit duly sworn in before 1st class Judicial Magistrate declaring therein (as per Annexure™ A). By order of the Government of Jammu and Kashmir. Sd/- Secretary to Government Education Department" 5. Condition (iii) of the order was modified by corrigendum extending the date for preparation of list and registration from 28.02.2009 to 12.03.2009 and no further amendment. In compliance with the Government order, the Board issued a notification vide No. F (Acad-ETT) Cal/ B/2009 dated 16.03.2009 which is questioned by the Petitioners-Institutions and to appreciate the challenge, same is extracted hereunder: THE JAMMU AND KASHMIR STATE BOARD OF SCHOOL EDU- CATION JAMMU NOTIFICATION This is for the information of all the concerned that Academic calendar for Two year Elementary Teacher Course (ETTC) Special Session, 2007- 09 in Non Government recognized Institutions of Jammu Province is notified here as under:- Date of classification: 23.03.2009 Teaching Practice w.e.f 07.08.2009 Date for submission of Admission-cum-permission form: 12.08.2009 Date of Examination (Tentative 2nd week of November 2009 The above academic calendar shall be strictly adhered by all the Non Govt. recognized ETT Institutions of Jammu Province and will ensure completion of the syllabi and Course of study with the minimum 180 working days, even by making special arrangements for extra classes by curtailing the institutional Holidays except Gazetted/Nation holi- days. Further, all the concerned head of the institutions will also ensure, the availability of records and presence of the all enrolled students in all working days, for monitoring and inspection by a team which has been constituted in terms of Government Order. No: F(Acad-ETT) Cal/B/2009 ETT/Academics. Dated: 16.03.2009 Sd/- (S. S. Salathia) Joint Secretary, 6. The main grievance of the Petitioners-Institutions is that the Board could not have notified a separate calendar for the students of the Petitioners-Institu- tions, providing a separate date viz. 23.03.2009 for their classification because of imposition of penalty of Rs.1000/- already paid by them which according to the learned counsel for the petitioners has the effect of regularizing the admis- sion of the students retrospectively along with regular batch, therefore, notifi- cation dated 16.03.2009 impugned. 23.03.2009 for their classification because of imposition of penalty of Rs.1000/- already paid by them which according to the learned counsel for the petitioners has the effect of regularizing the admis- sion of the students retrospectively along with regular batch, therefore, notifi- cation dated 16.03.2009 impugned. The argument needs to be appreciated in the light of the fact that upon own showing of the Petitioners-Institutions (see para 10 of the writ petition), the Board had invited the applications from the eligible candidates for admission to Diploma ETT vide notification dated 26-04-2008 and the first counseling was over by 18-09-2008, a point of time by which the Petitioners-Institutions were admittedly not possessed of the NOC which fact is evidenced from the date of issuance of NOC granted in favour of the Petitioners-Institutions viz. 16.10.2008. There is also no denying that the Petitioners-Institutions did not apply in pursuance of the notification dated 26.04.2008, because basic requisite condition was wanting on their part, that is NOC, obviously, allocation of students to their Institutions could, by no stretch of imagination, be conceived of. The entitlement of the Petitioners-Institutions to admit the students started with the issuance of Government order No. 152-Edu of 2009 dated 02.03.2009, contents whereof unearth that permission for submission of admission forms and registration was extended in favour of the Petitioners-Institutions on compassionate grounds till 12.03.2009 as one time exception against penalty of Rs. 1000/- per candidate. As a corollary, commencement of classification of the Petitioners-Institutions has to be reckoned subsequent to 12.03.2009, accordingly, the Board notified 23.03.2009 as classification date for these Institutions, that is the date when classes had to start, a duty cast upon the Board by the Government order vide clause (iii) which required the Board to notify the special admission-cum-registration dates by which the Petitioners-Institutions had to submit fully prepared admission list and registration mentioned in the order i.e. 28.02.2009 enlarged to 12.03.2009 by corrigendum. It is in compliance with the said condition of the Government order that the Board issued notification vide No. F (Acad-ETT) Cal/ B/2009 dated 16.03.2009 notifying the date of classification as 23.03.2009. It is in compliance with the said condition of the Government order that the Board issued notification vide No. F (Acad-ETT) Cal/ B/2009 dated 16.03.2009 notifying the date of classification as 23.03.2009. Ex facie, there is no departure by the Board from the Government order but adherence to the condition in its letter and spirit and treatment as a special batch given to the students of the Petitioners-Institutions is an obligation cast on the Board vide condition (i) of the Government order and condition (ii) further makes it obligatory upon the Board to ensure that the examination of the special batch does not effect the classes of the students who have been selected through centralized counseling (regular batch). Examining the case of the Petitioners-In- stitutions on the touchstone of the conditions stipulated by the Government in Order No. 152-Edu of 2009 dated 02.03.2009, distinction between the two batches is manifest and the Board has very rightly treated the students of the Petitioners- Institutions as a special batch and a class apart from the students of the regular batch for purposes of their classification and examination. Thus no fault can be found with the impugned notification. 7. Argument was also advanced by Mr.Qayoom to attribute delay to the State in granting the NOC to the petitioners-Institutions, to contend that had it been granted well in time, Petitioners™ students would have attained a right to be examined with the regular batches. Whether delay in granting NOC was caused because of failure of the State or due to the omissions and commissions of the Petitioners-Institutions, is a non-issue for disposal of this case, for, neither of the situations can require the Board to deviate from subjecting the Petition- ers-Institutions to the conditions enshrined in the Brochure. 8. In addition to what is said above, entitlement of the students of the Petitioners-Institutions to appear in the examination has to be tested on the conditions spelt out in the Government order aforementioned. In this behalf, it calls for a mention that process of admission had commenced from 28.04.2008 vide notification dated 26.04.2008 inviting applications which had to be submit- ted to the Board by 5th of May 2008, pursuant thereto, first counseling of the candidates was over by 18.09.2009. In this behalf, it calls for a mention that process of admission had commenced from 28.04.2008 vide notification dated 26.04.2008 inviting applications which had to be submit- ted to the Board by 5th of May 2008, pursuant thereto, first counseling of the candidates was over by 18.09.2009. The Petitioners-Institutions being ineligible could not apply, however, the Government favoured them by relaxation subject to the conditions detailed in the Government order itself and on the strength of the said order, their admission forms came to be taken on record. Having availed of the concession granted to them to impart education, amazingly they now intend to get rid of the statutory requirement of completion of 180 academic days, detailed in condition (iii), a situation not countenanced in law. In taking this view, I am fortified by judicial decision in R. N. Gosain, Petitioner v. Yashpal Dhir, Respondent. (AIR 1993 SC 352), para 10 whereof may be noticed: Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that �a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". (See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., (1921) 2 KB 608, at p. 612, Scrutton, L.J.). According to Halsbury™s Laws of England, 4th Edn., Vol. 16, after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside�. (para 1508)." 9. This brings me to the challenge thrown to the condition (iv) of the Government order No. 152-Edu of 2009 dated 02.03.2009, extracted for facility of reference hereunder: iv. Ist year Examination for the Special Session shall be conducted after the completion of 180 academic days.� 10. The Board having refused to conduct the examination of the students of the Petitioners-Institutions because completion of 180 academic days is wanting, a grouse is registered by learned counsel for the Petitioners-Institu- tions that such a condition is contrary to the syllabi. Ist year Examination for the Special Session shall be conducted after the completion of 180 academic days.� 10. The Board having refused to conduct the examination of the students of the Petitioners-Institutions because completion of 180 academic days is wanting, a grouse is registered by learned counsel for the Petitioners-Institu- tions that such a condition is contrary to the syllabi. To bring home the point, he has extracted a para of the syllabi, which speaks about the obligation cast upon the Petitioners-Institutions, to arrange particular number of lectures of a specific duration in the individual subjects but has no relevance to the condition of requirement of academic days. How syllabi deals with this requirement of academic days, relevant it is to extract entries 7 and 7.1: 7. ACADEMIC INPUTS 7.1 Curriculum Transaction and Internship. Working Days and Hours of Instruction: Total number of working days Essential 200(1000hours) Desirable 220(1200 hours) A working day will be of 6 hours for a 6-day working week. For a 5-day working week, the hours will be proportionately longer. The time will be distributed as follows: Essential Desirable Teaching day (hours)per year 150 days(750 hours) 160 (800hours) Supervised Practice Teaching in Schools 30 days(150 hours) 40 (200 hours) Admission and Examination 20 days(80 hours) 20 (80 hours) Days. Total 200 (980 hours) 220(1080 hours)" 11. It is obvious on a plain reading of the entry that a student is required to attend 150 teaching days and 30 training days in the school, totaling 180 days which is essential for every student even for those students who have been admitted to the diploma ETT through a prescribed regular mode. Going by the relevant entry of the syllabi, there is no route available to the students of the Petitioners-Institutions to escape the completion of the requisite number of academic days which has to be counted in terms of the Government order followed by notification of the Board bearing No. F (Acad-ETT) Cal/ B/ 2009 dated 16.03.2009 reproduced hereinabove and it cannot be prior to their classi- fication viz. 23.03.2009, the date when their classes had to start. Requirement of 180 academic days™ stands notified by the Board and is well within the knowledge of the Petitioners-Institutions. 23.03.2009, the date when their classes had to start. Requirement of 180 academic days™ stands notified by the Board and is well within the knowledge of the Petitioners-Institutions. It is a requirement under norms, prescribed and detailed in the syllabi, a condition of eligibility, a student is supposed to be possessed of, for purposes of examination which has to be satisfied. The Petitioners-Institutions have not been singled out and the condition has not been applied to the students of their institutions alone but to one and all, including the students of regular batch. Thus in absence of fulfillment of the essential requirement of academic 180 days, a student is not eligible to appear in the examination and examining as such, ineligibility of the students of the Petition- ers-Institutions to appear in the examination is manifest. 12. Now let me assume a situation, much favourable to the Petitioners-In- stitutions, that is absence of requirement of a particular number of academic days. The hypothesis gives rise to a question, whether absence of written instructions would prevent the Board from prescribing such a condition? To find the answer, it has to be borne in mind that the Board is a statutory body and has come into being by an Act of the Legislature called the Jammu & Kashmir Board of School Education Act, 1975" (Act for short) and it is its bounden duty to ensure that the academic excellence is not a casualty and for its achievement, it has to prescribe the conditions. The Petitioners-Institutions are aggrieved of both, the requirement of 180 academic days and 75% atten- dance. Why grievance, there is no foundation excepting an attempt to coerce the Board to accept its demand notwithstanding, that laying down the proce- dure for admission to the examination is a function of the Board and the Board is expected to have prescribed it after taking into account the opinion of the experts, therefore, even if there would be no mention in the Brochure/Syllabi, still the Board would be within its competence to prescribe the requisite number of lectures and attendance. The learned counsel for the Petitioners-Institutions could bring nothing to the notice of the Court which would suggest anything wrong with fixation of the eligibility. The learned counsel for the Petitioners-Institutions could bring nothing to the notice of the Court which would suggest anything wrong with fixation of the eligibility. For other reason also, there is no cause for the Court to interfere, that is lack of expertise to answer a question as to what is the minimum number of lectures and percentage of attendance that can be sufficient to uphold the academic standards and fitness of a trainee to perform the job, an area to be embarked upon by the experts of the field only. 13. It was also argued by Mr. Qayoom that imposition of conditions like completion of 180 academic days and 75% attendance amounts to interference with the right to run the educational institutions. The argument is advanced simply to be rejected because prescription of the eligibility is not a restriction on running of the educational institutions but discharge of an obligation by the Board to regulate the standard of education and if left to the sweet will of the Non-Government educational institutions, there will be as many sets of eligi- bility criteria as there are institutions and every institution will prescribe it, the way it becomes a more profitable business for them, result will be chaos and confusion. Thus prescription of eligibility by the Board is a necessity which power has to be conceded to the Board to ensure the excellence of education. 14. Much emphasis was laid by Mr. Qayoom on the power of the Chairman to admit a candidate on late fee but the late admission clause has neither been referred to in the writ petition nor relied upon, yet an argument is sought to be developed that the Chairman of the Board has the power to permit late admis- sion on payment of the late fee. The contention needs to be appreciated in the light of the scheme of the brochure and the relevant clauses may be noticed: SUBMISSION OF APPLICATIONS: ..All candidates (both local as well as non-local) desirous of seeking admission to the course shall submit the application completed in all respects by Registered Post/ Speed Post to the Chairman, Jammu and Kashmir State Board of School Education Rehari, Colony, Jammu/New Campus Bye-pass Bemina, Srinagar. PROCEDURE AND MODE OF SELECTION Admission of all eligible candidates to the Diploma in Elementary Teacher Training Course shall be made by Central Admission Commit- tee (CAC) of the Board, where the Director (Academics) shall be the member Secretary and the Committee shall consist of at least five members constituted by the Secretary with the approval of the Chair- man of the Board, under the Statutes/ Rules laid down by the Board. The selection list allotted to each institution shall be put up before the Chairman through the Secretary for approval. Merit list of eligible candidates shall be prepared on the basis of merit i.e. percentage of marks obtained in the qualifying examination. Admis- sion of the candidates belonging to different categories shall be made on the basis of comparative merit in the respective lists. Likewise, admission of candidates under reserved categories shall be made on the basis of comparative merit in the respective reserved category. In case any seat in the reserved category falls vacant, the same will be filled from amongst candidates of that particular category, strictly in accordance with the prescribed procedure and norms. In the event of non-availability of eligible candidate in the concerned reserved cate- gory, the resultant vacancy shall be offered to the candidates of another category. ALLOTMENT OF INSTITUTION: The admission will be made strictly on the basis of merit. The institution shall be allotted to a candidate during the counseling by Central Admis- sion Committee on merit-cum-choice basis subject to the availability of seats in that institution." 15. It is deducible from a reading of the clauses reproduced above that the power to admit a student on the payment of the late fee would be available to the Chairman in respect of a candidate who is selected as per procedure and mode of selection prescribed in the brochure itself which would mean, selectionby the Central Admission Committee of the Board. The only interpretation possible, being in conformity with the intent of the clauses of the brochure. No other interpretation can help to achieve the objective, the brochure aims at. The argument has otherwise also no relevance because permission declined by the Board has gone un-assailed and has attained finality and the right if any accrues to the Petitioners-Institutions that is on the basis of the Government order No.152-Edu of 2009 dated 02.03.2009 aforesaid and nothing more and nothing less. 16. The argument has otherwise also no relevance because permission declined by the Board has gone un-assailed and has attained finality and the right if any accrues to the Petitioners-Institutions that is on the basis of the Government order No.152-Edu of 2009 dated 02.03.2009 aforesaid and nothing more and nothing less. 16. It was also argued by Mr. Qayoom that as per the entries of the syllabi, the Petitioners-Institutions could make the admission of their own, contention although not pleaded, yet I would like to deal with it, taking into account the claims staked by the petitioners-institutions in their earlier writ petitions and the relief granted therein but surprisingly, they have not made even a mention about the relief that was sought by them and to overcome the difficulty arising out of non availability of the record of the decided writ petitions filed by the Petitioners-Institutions, the Registrar Judicial of Srinagar Wing was asked to obtain photo copies of the writ petitions from Jammu Wing which he has placed on the file. Prayer clauses whereof read: OWP NO: 1030/2008 Valley ETT Institute, Barwal Kathua & Ors. Vs. State of JK & Ors. It is therefore prayed that the respondents may very kindly be directed to either provide the students to the colleges of the petitioners or in the alternative allow the petitioners to make the admissions as per the laid down criteria of the respondent No. 2 OWP NO: 1014/2008 Harnam Elementary Teacher Training Vs. State and others. Institute & Anr. It is therefore, most humbly prayed that in view of submissions made above and those to be urged at the time of hearing. Your Lordships, may be pleased to issue a writ, order or direction in the nature of:- i) Writ of Mandamus directing the Respondents/State to allow the petitioner™s Colleges to admit the students for the ETT Course for Session 2007-09 directly The aforesaid writ petitions along with connected petitions came to be adjudicated upon by a common judgment dated 01.01.2009, which reads: Learned counsel for the petitioners states that today the court has disposed of OWP NO. 1004/2008 titled Shikhsa Niketan and R. M. ETT and Ors. Vs. State and Ors, which was the similar matter. The learned counsel states that as the issues involved are the same, this bunch of petitions may also be disposed of in terms of the judgment in the said case. 1004/2008 titled Shikhsa Niketan and R. M. ETT and Ors. Vs. State and Ors, which was the similar matter. The learned counsel states that as the issues involved are the same, this bunch of petitions may also be disposed of in terms of the judgment in the said case. In the facts and circumstances of the case and in the interest of justice, it is directed that let the petitioners file a representation to the respondents regarding allocation of the students to the Institutes concerned. In case, such representation is filed, the same shall be given due consideration and disposed of by the respondents by passing a speaking order within one week from the date representation is received by the respondents. Needless to mention that while considering the matter, the respondents shall hear the petitioners and consider the options of the students, if any. The matter be dealt with in light of the rules and scheme governing the filed. On the submissions, this bunch of petitions is disposed of in terms of the aforementioned order. Order accordingly." 17. It transpires from the above reproduction that a writ was sought by the Petitioners-Institutions to command the Respondent-Board to allocate students to them and in the alternative to allow them to make the admission of their own. The pleadings and the relief prayed for is more than enough in itself, to show that the petitioners are fully alive to the scheme of the brochure, conferring power of admission on the Central Admission Committee of the Board and certainly not on the Institutions and that has been the case of the petitioners all along, therefore, now it is not open or permissible in law to them to back-track from the said stand because they are precluded by principles of promissory estoppel to assert anything to the contrary. Moreover, the power to allocate the students by the Central Admission Committee of the Board has already received the seal of approval of this Court by judicial pronouncements (reproduced above) passed in the writ petitions filed by the Petitioners-Institutions, there- fore, no option for the petitioners but to comply with. 18. Claim of the Petitioners-Institutions to make admissions of their own needs to be appreciated in the light of the notified Information Brochure, interalia providing, that admission to the course has to be made by the Central Admission Committee to be appointed by the Board. 18. Claim of the Petitioners-Institutions to make admissions of their own needs to be appreciated in the light of the notified Information Brochure, interalia providing, that admission to the course has to be made by the Central Admission Committee to be appointed by the Board. In essence these are the instructions to achieve the objective spelt out therein in similar words. What is that objective, advantageous it is to reproduce the preamble of the Syllabi and the prelude of the brochure: Preamble of the Syllabi. Prelude of the brochure. Diploma in Nursery and Elementary Teachers Training is meant for preparing teachers for Primary and Elementary Schools, i.e. preparing teachers for age-group of 5+ to 13+� 19. In essence, both the syllabi and the brochure are in the form of instruc- tions aiming at imparting requisite training to the students to enable them to teach the students falling with the age group of 5+ to 13+� in primary and elementary schools. Which set of instructions has to prevail, relevant it is to reach at the source, that empowers the Board to issue the syllabi or brochure i.e. the Jammu & Kashmir Board of School Education Act, 1975 (Act for short) and the relevant provision is extracted: 10. Powers and functions of the Board Subject to the Provisions of this Act and also subject to the broad educational policies and such directions and instructions as the Govern- ment may adopt and issue, from time to time, the Board shall have the following powers and functions:- (i) to prescribe the courses of institution, prepare curricula and detailed syllabi and also prescribe text books for the elementary, secondary school and higher secondary (school graduation), school examination; (vii) to conduct inspection of the recognized Schools/institutions to ensure: (c) that the recognized Schools/institutions maintain the standard of education and impart instruction strictly in accordance with the regulations made under this Act. (xviii) to frame regulations for carrying out its purposes; (xxii) to issue instructions by correspondence; (xxiii) to exercise full academic control over the recognized institutions.. (xxx) to do all such other acts and things as may be necessary for furtherance of the objective of the Board as a corporate body constituted for regulating and supervising elementary, secondary and Higher secondary education in the State" 20. (xxx) to do all such other acts and things as may be necessary for furtherance of the objective of the Board as a corporate body constituted for regulating and supervising elementary, secondary and Higher secondary education in the State" 20. Perusal of the reproduction above makes it clear that the power to issue the syllabi and the brochure, flows to the Board from one and the same provision contained in the Act and both (syllabi and brochure) are on a footing of equality, force-wise and none of them can be said to be much more powerful than the other for the simple reason that both have been issued by one and the same authority. In that view of the matter, a question arises as to whether provisions of brochure and syllabi have to operate in the field or does any of the provisions get superseded. This issue has neither been raised nor argued by either side, although to my mind, it is the most crucial issue which needs to be determined to set at rest the controversy in respect of applicability of the instructions. To arrive at a just conclusion it has to be borne in mind that the syllabi published by the Board is effective from 2003 whereas the brochure is published in October, 2006, apparently, the provisions of the syllabi conflicting with the brochure were within the knowledge of the Board, therefore, the procedure and provisions introduced by the brochure being latter in point of time, have to prevail over the entries those are inconsistent with the provisions of the brochure, accordingly, it is ruled that those entries of the syllabi which are incon- sistent with the brochure stand displaced by necessary implication. 21. For what is said above, writ petitions fail and are dismissed along with CMPs. Interim directions are vacated. Contempt petition Nos. 220/2009 & 243/2009: I) Now a word about the contempt petitions alleging breach of the direction dated 23.06.2009, operative part whereof reads: Accordingly I direct that let the respondents permit the petitioners- institutions to sit in the examination starting from 30-06-2009 and consequently accept their applications in this behalf� II) The direction mandated the Respondent-Board to allow the students of the Petitioners-Institutions to sit in the examination with the regular batch. That would mean if examination was conducted of the regular batch, the Board had to permit the students of the Petitioners-Institutions also to appear in the examination which they could not do because the direction is incapable of implementation in view of ineligibility of the students of the Petitioners- Institutions, traceable to incompletion of requisite 180 academic days and 75% attendance. In that view of the matter, it is submitted that the Board could not be compelled to comply with the direction. To bring home the point reliance is placed on paragraph 8 of the judgment in Miss Baljeet Oberaia, Petitioner v. The State and others (AIR 1985 J&K 16), which reads: Now coming to the question whether the interim order passed by this court should continue or should be vacated. The counsel for the petitioner made a forceful plea that it should continue. The 1st respondent™s counsel with equal vehemence opposed it and states that continuance of the order would place the officers in peril. The counsel for the petitioner takes up a technical stand that in view of the non-compliance by the State of the interim order passed by this court and in view of the pendency of a contempt application for such non-compliance, the State and the Principals of the Medical Colleges cannot be heard unless they purge themselves of the contempt. For this purpose the petitioner™s counsel relies upon a decision of this Court. This aspect of the case needs fuller consideration and I for one, with great respect, cannot subscribe to the view that in all cases where an interim order is not immediately complied with by the party against whom it is passed, he commits contempt. Orders differ from case to case. There may be orders, which the officer against whom they are passed, can immediately comply. Disrespect of such orders would be wrong. There may also be orders passed ex parte by court, immediate compliance with which may not be possible for an officer, against whom it is passed, for various reasons, legal and factual. In such cases, such officers can come to court immediately and apprise the court of the true position and seek modification or clarification of such orders. There may also be orders passed ex parte by court, immediate compliance with which may not be possible for an officer, against whom it is passed, for various reasons, legal and factual. In such cases, such officers can come to court immediately and apprise the court of the true position and seek modification or clarification of such orders. Simply because a party chooses to file a contempt application the alleged contemnor does not become disentitled to plead his cause before the court� III) Learned counsel for the respondents also contended that ineligibility of the students of the Petitioners-Institutions having been specifically pleaded in the objections filed in opposition to the maintainability of the writ petition, the Court was required to dispose of the stay matter and in case the interim direction was maintained, in that eventuality alone, the respondents could have been dealt with for contempt. To substantiate the contention reference was made to the judgment in State of J&K vs. Mohd. Yaqoob Khan (SLJ 1997 page 152): Para 6. We, therefore, hold that the High Court should have first taken up the stay matter without any threat to the respondents in the writ case of being punished for contempt. Only after disposing it of, the other case should have been taken up. It is further significant to note that the respondents before the High Court were raising a serious objection disputing the claim of the writ petitioner. Therefore, an order in the nature of mandatory direction could not have been justified unless the court was in a position to consider the objection and record a finding prima facie in nature, in favour of the writ petitioner..The High Court should first take up the stay matter in the writ case, and dispose it of by an appropriate order. Therefore, an order in the nature of mandatory direction could not have been justified unless the court was in a position to consider the objection and record a finding prima facie in nature, in favour of the writ petitioner..The High Court should first take up the stay matter in the writ case, and dispose it of by an appropriate order. Only thereafter it shall proceed to consider whether the State and its authorities could be accused of being guilty of having commit- ted contempt of Court.� IV) Explaining the difficulty, the Board was confronted with, attention of the Court was drawn to para 3 of the reply which may be extracted: That it is not humanely possible for the replying respondents to hold the examination of the petitioners students on 30 June when the fact of the matter is that no admission cum permission form of Elementary Teacher Training (ETT) Course first year special batch was submitted by any of the head of institutions of ETT Colleges of District Kathua in office of J&K State Board Education, Sub-Office, Kathua till date. It is submitted that 28th is Sunday and admittedly the examination for regular batch is commencing from 30th June, 2009. It is not known as to when the examination form will be received by the Board office, Kathua. After receipt of the examination forms the same are to be scrutinized thereafter roll no™s are to be allotted, the venue of examination is to be arranged for and in this regard request is to be made to various educational institutions for providing accommodation, appointment of supervisory staff, printing of question papers etc for petitioners which are huge in number, all these formalities cannot be completed within a short period of one or two days. Otherwise, the whole examination has to be postponed which will put the examinees who belong to far flung areas of other states to innumerable difficulties & will tell upon their academic carrier � V) The details of the steps those were required to be taken by the Board were really near impossibility to be completed within a period of less than a week suggesting on facts, that it could not be possible for the Board to allow the students of the Petitioners-Institutions to appear with regular batch. VI) Now a legal difficulty of the Board which calls for examination on the touchstone of condition (iii) of the Government order No. 15 2- Edu of 2009 dat e d 02- 03- 2009 wh ich re q uir ed t he Petitioners-Institutions to submit admission list and registration of their students by or before 28.02.2009, extended to 12.03.2009, revealing that the date of classification had to be after 12.03.2009 which was specified by the Board as 23.03.2009. Reckoned on the b a s i s o f t h es e adm i t t e d eve nt s , t h e s t u den t s of t he Petitioners-Institutions had completed academic days stretching to three months and a few days only and had still to continue for a few months more, onwards June 2009 which fact they have suppressed in their writ petition. Had they pleaded the facts correctly, perhaps ad interim direction would not have been passed at all because of legal impediment, that is the ineligibility of the students elaborated hereinabove. It appears that the petitioners-Institutions had aimed at coercion to compel the Board-Respondent to implement the ad-interim direction, preventing it (Board) to oppose the interim direction through their objections, apparently in furtherance of an attempt to get their students examined. Faced with the situation, the Board at the pain of contempt deferred the examination even of the regular batch in a few papers although they did not lag behind, requirement-wise. Under these circumstances, the Board cannot be held guilty of contempt of Court. As a corollary Contempt petitions are dismissed. Record produced by Mr. Kawoosa is returned to him in the open Court.