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2010 DIGILAW 365 (JK)

Munsheed Manzoor Shah & Ors v. State Of J&K

2010-06-05

Hasnain Massodi, MOHAMMAD YAQOOB MIR

body2010
Per Massodi, J. 1. The appellants in the year 2006 secured admission to three year Diploma Engineering Course in SSM College of Engineering and Polytechic, Pattan, Kashmir. 2. The Diploma level technical education in the State of Jammu & Kashmir is regulated by the Jammu & Kashmir State Board of Technical Education Act, 2002. The Act provides for development of standards of technical education and a mechanism to monitor the performance of the institutions imparting technical education affiliated to the State Board of Technical Education (hereinafter "The Board"). Section 3 of the Act provides for establishment of the Board. Section 13 of the Act delineates powers and duties of the Board. The Board inter alia is clothed with the following powers: "Section 13..... (ix) to conduct examinations for the students admitted to recognized / affiliated Polytechnics from time to time leading to the award of diplomas; (x) to provide for the conditions including the examination fees for admission to examinations conducted by it:" 3. The Board in the year 2006 decided to switch over from annual pattern to Semester system in the Technical Education Institutions affiliated to it. In 13th Board Meeting it was decided to promote such of the students to 2nd and 3rd year of the Diploma Course who clear/pass a minimum of 60% and 75% of the subjects at the end on 1st year and 2nd year respectively. The decision was notified vide circular No. SBOTE/Exam/08-3346-62 dated 25.3.2008 (hereinafter "the circular"). The Board in effect decided not to promote the students to 3rd semester who at the end of the 2nd semester had more backlog subjects than what was prescribed vide circular and not to promote the students to 5th semester who had more backlog papers in previous four semesters at the end of the 4th semester than prescribed by the Board. In other words the students enrolled in Technical Institutions affiliated with the Board are to cross two barriers one at the end of the 2nd term and another at the end of the 4th term. The students having more backlog subjects that maximum prescribed under the circular are to stay in 2nd or 4th semester till they pass the requisite number of subjects. 4. The petitioners, on the date the Board decision was notified, were already in 5th term, though they had not cleared requisite number of subjects in terms of the circular. The students having more backlog subjects that maximum prescribed under the circular are to stay in 2nd or 4th semester till they pass the requisite number of subjects. 4. The petitioners, on the date the Board decision was notified, were already in 5th term, though they had not cleared requisite number of subjects in terms of the circular. The appellants were promoted to 5th semester before issuance of circular notwithstanding backlog subjects because there was no order or instruction from the Board to block the promotion of the students to 3rd and 5th semester who had not cleared a particular number of subjects in their 1st. year and 2nd year. The Education Institutions affiliated to the Board till March, 2008 followed "carry on" system whereunder the students notwithstanding their failure to pass all or any of the subjects, were to be promoted and allowed to clear the backlog subjects at a subsequent stage. 5. The appellants though in 5th semester, on the date circular was issued, were not allowed by their College to appear in the 5th semester examination on the ground that the appellants had more backlog subjects than permissible in terms of aforementioned circular. The stand taken by the College was that because of number of backlog subjects the appellants ought not to have been promoted from 4th semester to 5th semester and that they could not be permitted to appear in the 5th semester unless and until they cleared the backlog subjects or such number of subjects as would bring their backlog list to the level it was permitted in terms of the decision of 13th Board Meeting. 6. The appellants filed a writ petition registered as OWP No. 938/2008 and inter-alia asked for a writ of certiorari declaring the circular as unconstitutional and a writ of mandamus commanding the respondent No. 4 to forward the examination forms of the appellants to respondent No. 1 and to allow the appellants to appear in 5th semester examination as regular candidates to be held from 13th January 2009. 7. The respondents contested the writ petition inter alia on the grounds that restriction on number of backlog subjects has been directed by the Board in the best interest of the students and to maintain the standard of technical education in the J & K State and that the decision taken by the board is in conformity with law. 7. The respondents contested the writ petition inter alia on the grounds that restriction on number of backlog subjects has been directed by the Board in the best interest of the students and to maintain the standard of technical education in the J & K State and that the decision taken by the board is in conformity with law. The respondents denied that the appellants had any right to invoke extra ordinary jurisdiction of the Court and insisted that the right course open to the appellants was to clear the backlog subjects and thereafter appear in 5th semester examination. 8. The writ court took up the writ petition bearing OWP No. 938/2008 filed by the present appellants, with a bunch of other writ petitions involving identical issues. The writ court dismissed all the petitions including one filed by the appellants vide order dated 26.11.2009. 9. Aggrieved by the aforesaid order, the appellants-petitioners in OWP No. 938/2008, have filed instant Letters Patent Appeal on the following grounds: - (a) That the writ court did not take note of the fact that the appellants were enrolled for three years Diploma Engineering Course when the backlog system laid down in circular was not in vogue and the appellants having been already promoted to 5th semester, were not to be governed by the Board decision notified vide circular dated 25.3.2008; (b) That the judgment in question is in conflict with the earlier orders of the writ court allowing the students to appear in the examination, as also the judgment and order of Division Bench in LPA No. 43/09 dated 17.4.2009 whereby the students allowed to pursue their course in higher / upper semesters, were allowed to appear in the examination of the respective semesters and not to be denied such an opportunity on the ground of their not having cleared the backlog subjects in earlier examinations; (c) The writ court while referring to judgments reported as 1989 (2) SCR 465 and AIR 1991 P & H 51 has not discussed the judgments though law laid down in both the judgments extended support to the appellants' case; (d) That the writ court misdirected itself by not returning a finding on the plea raised by the appellants that the circular had no application in their case. (e) That the judgment and order under appeal is working harshly against the appellants in as much as the appellants have under court orders even appeared in last and final semester of their three years Diploma Course and are only waiting results to commence their professional carriers. 10. We have gone through the memo of appeal as also the writ record and have heard Ld. Counsel for the parties at length. 11. It is admitted position of the parties that the appellants on 25th March 2008 were in 5th semester of 3rd year-6 semester, Diploma Engineering Course and had to take the examination of 5th semester. The circular that was pressed into service by the respondents to withhold the 5th semester examination terms of the appellants and not to forward such forms to the respondent No. 1, made a policy shift as regards clearance of backlog subjects and promotion of the students from 1st and 2nd year to 3rd year of the course. The circular provided that only such students enrolled for said course were to be promoted from 1st year to 2nd year (3rd semester to 4th semester) who pass/clear 60% of the subjects prescribed for the 1st. year (semester 1 and 2) and only such of the students enrolled in the course were to be promoted from 2 year to 3rd year (4th semester to 5th semester) who passed 75% of the subjects prescribed for first two years of the course (semester 1 to 4). The circular by its language is prospective in character and applicable to the students who on the date of issuance of the circular were/are in 4th semester or a semester lower thereto. We hold so for the reason that the circular provided for two barriers one at the end of first year or the 2nd semester and another at the end of the 2nd year or 4th semester and the students who had already crossed two barriers could not be asked to roll back and pushed down the ladder and made to stagnate in the 5th semester till they cleared there backlog subjects in lower semesters. The fallout of the circular on the academic career of the students enrolled in Institutions affiliated with the Board, as well, persuade us to hold the circular in question to be prospective in nature. The fallout of the circular on the academic career of the students enrolled in Institutions affiliated with the Board, as well, persuade us to hold the circular in question to be prospective in nature. It is to be kept in mind that the appellants like other students in 5th semester or 6th semester had been promoted in accordance with the practice and pattern in vogue at the time of their promotion to the 5th semester. The circular in question cannot be interpreted differently as that would lead to unjust and unfair results. 12. The writ court while dealing with the bunch of petitions including the writ petition No. 938/2009, appears to have been primarily influenced by the fact that the respondent No. 1 was an authority empowered under statute to take the decision, was well equipped to take a decision (sic) one taken in its 13th Meeting in this regard. It would be advantageous to extract the following passages from judgment in question: "It is settled principal of law, as has been held by the Apex Court in catena of authorities that when the statute prescribe a particular body to exercise a power, it must be exercised only that body. Keeping in view the subject matter I find only the Board on take decision to prescribed pass percentage etc. and number of reappear subjects for the students who can be promoted to the higher classes. The court cannot substitute its own opinion in place of opinion expressed and decision taken by the concerned authorities and cannot ask the Board to act in a particular way. Since the Board has got expertise on the subject the decision taken in this behalf cannot be looked into at all. Even the petitioners have not challenged the decision of the Board taken in its 13th meeting." "Board is an expert body comprising of educational experts who have got wide experience in the field, decision of such an expert body has to be given due weight and cannot be set aside only on the ground that it may cause inconvenience to the candidates who suffer for their own lapses. 13. 13. There can be no disagreement with the conclusions drawn by the writ court as regards competence of the Board to lay down criteria and guidelines as long as such criteria and guidelines go hand in hand with objects of the Jammu & Kashmir State Board of Technical Education Act 2002 and powers and duties of the Board set out in section 13 of the Act. That the Board is expected to have enough expertise, inputs and knowhow to lay down such criteria / guidelines and further that the court is ill equipped to step into shoes of the Board and substitute its own opinion for the decision of the Board, cannot be disputed. There is no reason to doubt intentions of the Board in making the policy shift as the new policy is bound to strengthen academic discipline and persuade the students to make efficient use of their time resources. What appears to have escaped attention of the writ court is that the appellants in their petition did not only question the competence of the Board to take the decision in question and constitutionality of such decision but also that the Board decision reflected in circular was not applicable to their case. This aspect of the appellants' case appears to have got blurred in the din of varied facts pleaded in as many as 16 petitions taken up together by the writ court. The writ court appears to have also lost sight of the fact that the appellants under court orders dated 29.12.2008 and 24.06.2009 were allowed to appear in 5th and 6th semester examination and had completed the course subject to their clearance of earlier backlog subjects and that the appellants perforce had to clear the previous backlogs subjects, before Diploma was granted by the Respondent No. 1 to the appellants. 14. We, for the reasons discussed, find merit in the appeal. We accordingly allow the appeal and set aside the writ court judgment. Resultantly the writ petition is allowed and writ of mandamus commanding the respondent No. 1 to declare the results of the appellants and grant Diploma to the appellants in their respective streams of 3 years Diploma Engineering Course, provided of course the appellants have by now cleared all the backlog subjects and completed all other requirements for completion of the aforesaid course. Disposed of.