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2018 DIGILAW 90 (ORI)

Naba Krushna Padhy v. State of Odisha

2018-01-16

B.R.SARANGI, VINEET SARAN

body2018
JUDGMENT : B.R. SARANGI, J. The petitioners, claiming to be the students of Ganjam B.Ed. (Special) Hearing and Impairment College, Goilundi, Berhampur in the district of Ganjam, have filed this application seeking direction to opposite part no.2-Berhampur University to declare their results of B.Ed. Special Education (Hearing Impaired and Visually Handicapped) Examination, 2015 for the academic session 2012-13 and consequential issuance of mark sheet. 2. The factual matrix of the case is that pursuant to an advertisement issued by opposite party no.4-institution, the petitioners applied for admission into the B.Ed. course for the year 2012-13. Consequentially, they admitted into the said course and prosecuted their studies attending the classes and appeared in the B.Ed. Special Education (Hearing Impaired and Visually Handicapped) Examination, 2015 held in the month of June, 2015 conducted by opposite party no.2-Berhampur University. Even though the petitioners appeared the in examination, their results could not be published. Due to delay in publication of results, the petitioners made enquiry and came to know that for the academic session 2012-13 opposite party no.4 had not got recognition and affiliation from Berhampur University, for which their results have not been published by the University. The petitioners also could able to know that assailing such action of opposite party no.1 in not granting permission/recognition (NOC) and affiliation for academic session 2012-13 and not allowing the institution to conduct the Special B.Ed. Examination for the year 2012-13, opposite party no.4-institution had approached this Court by filing W.P.(C) No. 15203 of 2014 and by order dated 18.08.2014, this Court allowed the writ petition and directed opposite party no.2-University to supply the requisite numbers of forms to opposite party no.4-institution allowing the students to fill up their forms and to appear in the examination conducted by the University. Pursuant to such order, opposite party no.2-University allowed the students of the opposite party no.4-institution who have taken admission in the academic year 2012-13 to appear in the B.Ed. Examination-2015. Consequentially, the petitioners, along with other students, appeared in the said examination. 2.1 When there was delay in publication of results, the petitioners on enquiry came to know that due to inaction of opposite party no.1 in granting recognition/NOC in favour of opposite party no.4-institution, their results have not been published. Examination-2015. Consequentially, the petitioners, along with other students, appeared in the said examination. 2.1 When there was delay in publication of results, the petitioners on enquiry came to know that due to inaction of opposite party no.1 in granting recognition/NOC in favour of opposite party no.4-institution, their results have not been published. It further revealed that opposite party no.2-University, vide letter dated 21.12.2011, had granted NOC to the institution for opening of B.Ed course for the academic session 2011-12, but the State of Orissa in its Women and Child Development Department failed to take a decision on the issue of grant of recognition/NOC to the institution to run the B.Ed course and the said issue was taken up in a meeting held on 12.06.2013, wherein it was decided that on receiving clarification from the Law Department, the women and Child Development Department would issue recognition/NOC in favour of existing institutions to run the B.Ed courses. 2.2 The opposite party no.4 had approached this Court by filing W.P.(C) No. 21876 of 2015 seeking for direction to opposite parties therein to issue NOC and allow the students to appear in B.Ed. Examination for the academic session 2014-15. By order dated 24.12.2015 in Misc. Case No. 20299 of 2015 this Court passed an interim order directing that the students of opposite party no.4-institution may be permitted to appear in the ensuing examination of B.Ed, 2014-15 (Special Education) which shall be subject to the result of the writ petition and it was further directed that since the matter is pending before the Court and has been delayed on account of obtaining instruction by the State, the opposite party no.4 institution was directed to deposit the applications of its students within one week from that day along with the examination fees with opposite party no.2 who shall not insist upon any late fees thereon and shall permit the said students to appear at the ensuing examination. Subsequently, by order dated 14.07.2016, W.P.(C) No. 21876 of 2015 was disposed of after determining the fact that in a similar case, i.e., Milton Charitable Foundation for the Visually Handicapped vs. State of Orissa and others (W.P.(C) No. 7646 of 2015) this Court directed to consider the application of institution with necessary undertakings as required for the purpose of granting NOC within a period of four weeks. Despite the order dated 14.07.2016, the opposite party no.1-State has not taken any steps for grant of NOC in favour of opposite party no.4-institution and due to non-implementation of the said order, CONTC No. 1457 of 2015 was filed, which has been disposed of today separately. 2.3 Needless to state that opposite party no.1 had, vide order dated 09.02.2016, granted temporary recognition in favour of the institution, viz., Milton Charitable Foundation for the Visually Handicapped, whereas so far as opposite party no.4 is concerned there is discrimination. In the meantime, the Government of Odisha has issued an advertisement to fill up the post of Sikhya Sahayaks, but due to non-publication of their results, the petitioners could not submit applications for the said posts and are deprived of participating in the selection process. Hence, the petitioners, who had taken admission in the opposite party no.4-institution for the academic year 2012-13, have filed this application seeking direction for publication of their results and to issue necessary mark-sheet. 3. Mr. B.Mohanty, learned counsel for the petitioners argued with vehemence that the petitioners, who had taken admission in the opposite party no.4-institution for the academic year 2012-13, having been completed the course by attending classes regularly and also permitted to appear at the examination pursuant to the interim order passed by this Court, their results should be published and they should be issued with mark-sheet so as to enable them to seek employment and survive in their life. Due to inaction of opposite parties no.1 and 2, now the petitioners are deprived of getting their livelihood and, therefore, they seek for aforesaid direction from this Court by filing the present application. 4. Mr. P.K. Muduli, learned Addl. Government Advocate appearing for the State opposite party no.1 contended that opposite party no.4-institution neither has got permission nor recognition from the State Government to establish such institution, nor affiliation from opposite party no.2, but by virtue of special permission the students of opposite party no.4 institution and of some other institutions have been permitted to appear in the examination. Therefore, the petitioners have no right to claim for publication of their results, since they have been allowed to appear in the examination by virtue of the interim order passed by this Court. 5. Mr. B.S. Mishra, learned counsel appearing for opposite party no. 2-Berhampur University contended that opposite party no. Therefore, the petitioners have no right to claim for publication of their results, since they have been allowed to appear in the examination by virtue of the interim order passed by this Court. 5. Mr. B.S. Mishra, learned counsel appearing for opposite party no. 2-Berhampur University contended that opposite party no. 4-institution has neither received any permission nor recognition from opposite party no.1, nor even affiliation from opposite party no.2-University to present its candidates to appear in the examination. Opposite party no.4 had approached this Court by filing W.P.(C) No. 21876 of 2016 seeking direction to present its candidates by getting special permission from the State Government and by virtue of the interim orders passed by this Court the students have been permitted to appear in the same, but till date no permission/NOC has been granted by opposite party no.1 in favour of opposite party no.4-institution so as to enable opposite party no.2 to grant temporary affiliation and publish the result of the students, those who have been permitted to appear in the examination by virtue of the interim orders passed by this Court. As such, this writ petition, which has been filed at the behest of the students for publication of results, cannot be said to be justified and is liable to be dismissed. It is further contended that opposite party no.4-institution, which has not yet received permission/NOC, recognition and affiliation, through its students in a camouflaged manner seeks for publication of results, which is not permissible, particularly when, time and again, publication of results claimed by the students of unrecognized, non-permitted and non-affiliated institutions has been deprecated. Thereby, the present writ application filed at the behest of the students cannot sustain in the eye of law and the same is liable to be dismissed. 6. Mr. Thereby, the present writ application filed at the behest of the students cannot sustain in the eye of law and the same is liable to be dismissed. 6. Mr. S.K. Rath, learned counsel appearing for opposite party no.4 contended that though this Court, vide order dated 14.07.2016, while disposing of W.P.(C) No. 21876 of 2015 taking into consideration the fact of a similar case, i.e., Milton Charitable Foundation for the Visually Handicapped vs. State of Orissa and others in W.P.(C) No. 7646 of 2015, directed to consider the application of opposite party no.4-institution with necessary undertakings, as may be required for the purpose of granting NOC, as has been done in a similar case, but the State Government till date has not considered the same and it is at the peril of the students. Therefore, he contended that due to deliberate and willful laches on the part of the State Government the career of the students is at stake and as such for the inaction of the State authority the students should not suffer, and seeks for direction for necessary steps to be taken at the level of the State authority to grant special permission for publication of the results of the students as claimed in the present application. 7. We have heard Mr. S. Mohanty, learned counsel for the petitioner, Mr. P.K. Muduli; learned Addl. Government Advocate for the State opposite party no.1; Mr. B.S. Mishra, learned counsel for opposite party no.2-Berhampur University; and Mr. S.K. Rath, learned counsel for opposite party no.4-institution. Though Berhampur University has filed a preliminary counter affidavit, neither the State authority nor opposite party no.4-institution has filed any counter affidavit, but they have argued the matter as mentioned above. 8. The undisputed fact is that opposite party no.4 institution has presented its candidates to appear in the Special B.Ed. Examination, 2015 for the academic year 2012-13 by virtue of the interim order dated 24.12.2015 passed by this Court in W.P.(C) No. 21876 of 2015. It is also not disputed that opposite party no.4-institution has neither got permission nor recognition/NOC from opposite party no.1 State, nor has got affiliation from opposite party no.2-Berhampur University. Hence, it is clear that opposite party no.4, which is a non-permitted, unrecognized and non-affiliated institution, has presented its candidates to appear in the Special B.Ed. Examination, 2015 for the academic session 2012-13. Hence, it is clear that opposite party no.4, which is a non-permitted, unrecognized and non-affiliated institution, has presented its candidates to appear in the Special B.Ed. Examination, 2015 for the academic session 2012-13. In this back drop of the case, it is to be considered whether results of the students of a non-permitted, unrecognized and non-affiliated institution, who have been permitted to appear at the examination by the Court through an interim order on the request made by the institution, can be directed to be published on being approached by the students in the present application. 9. In Krishna Priya Ganguly v. University of Lucknow (1984)1 SCC 307 , the Supreme Court observed: "3. Whenever a writ petition is filed provisional admission should not be given as a matter of course on the petition being admitted unless the court is fully satisfied that the petitioner has a cast-iron case which is bound to succeed or the error is so gross or apparent that no other conclusion is possible." 10. Yet in another case, i.e., in the case of A.R. Christians Medical Educational Society v. Govt. of A.P. (1986) 2 SCC 667 the apex Court held that: "We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws." 11. In the case of State of Tamil Nadu v. St. Joseph Teacher's Training Institute (1991) 3 SCC 87 the apex Court observed that the direction of admitting the students of unauthorized educational institutions and permitting them to appear at the examination has been looked on with disfavour and the students of unrecognised institutions who are not legally entitled to appear at the examination conducted by the Educational Department of the Government cannot be allowed to sit at the examination and the High Court committed an error in granting permission to such students to appear at the public examination. 12. In State of Maharashtra v. Vikas Sahebrao Roundale, (1992) 4 SCC 435 , it was held that the students of unrecognized and unauthorized educational institutions could not have been permitted by the High Court on a writ Petition being filed to appear in the examination and to be accommodated in recognized institutions. This Court observed: "12. 12. In State of Maharashtra v. Vikas Sahebrao Roundale, (1992) 4 SCC 435 , it was held that the students of unrecognized and unauthorized educational institutions could not have been permitted by the High Court on a writ Petition being filed to appear in the examination and to be accommodated in recognized institutions. This Court observed: "12. Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education." 13. In the case of Guru Nanak Dev University v. Parminder Kr. Bansal, (1993) 4 SCC 401 , the Supreme Court observed that such interim order is subversive of academic discipline. The relevant observations are as under: "We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates ... The courts should not embarrass academic authorities by themselves taking over their functions." 14. In the case of C.B.S.E. and Anr. v. P. Sunil Kumar and Ors., (1998) 5 SCC 377 , the institutions whose students were permitted to undertake the examination of the Central Board of Secondary Education were not entitled to appear in the examination. They were, however, allowed to appear in the examination under the interim orders granted by the High Court. In that context the Supreme Court observed: "4........ "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 the students." 15. In Regional Officer, CBSE v. Sheena Pethambaran, (2003) 7 SCC 719 , this Court has observed: "6". In Regional Officer, CBSE v. Sheena Pethambaran, (2003) 7 SCC 719 , this Court has observed: "6". This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases it is ultimately pleaded that since the course was over or the result had been declared, the matter deserves to be considered sympathetically. It results in very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions" 16. The said view of the apex Court has also been reiterated in the case of Minor Sunil Oraon Tr. Guardian & Ors. V.C.B.S.E. & Ors., AIR 2007 SC 458 wherein it deprecated the practice of educational institution admitting students without requisite recognition or affiliation and not fulfilling the essential condition nor abiding by Examination Bye-laws and even after filing undertakings, the school nonchalantly continued the violations of affiliation bye-laws of CBSE and held that not allowing the students to appear in the examination conducted by CBSE is proper. 17. Earlier, this Court in the case of Managing Committee, Swarnachuda Secondary Training School & 39 Ors. v. State of Orissa & Ors., 77(1994) CLT 459 considering the applications of the students to appear in the C.T. Examinations in unauthorized private institutions dismissed the writ petition and held as follows : “….. the field of education is found to be fertile, perennial and profitable business ventures with least capital outlay. Notwithstanding the statutory warnings given by the State that establishment of such institutions was not to be encouraged, the mushroom growth continued and students allegedly took admissions into the institutions. Private institution unauthorisedly established were invariably ill-housed, ill-staffed and ill-equipped. If the Government is directed to permit the students admitted into those institutions to appear in various examinations, that would lead to encouragement and condonation of the establishment of unauthorized institutions. The jurisdiction of the Court under Article 226 of the Constitution is not to be frittered away for such a purpose.” 18. If the Government is directed to permit the students admitted into those institutions to appear in various examinations, that would lead to encouragement and condonation of the establishment of unauthorized institutions. The jurisdiction of the Court under Article 226 of the Constitution is not to be frittered away for such a purpose.” 18. Considering the law laid down by the apex Court, as mentioned supra, and applying the same to the factual position of the case in hand, unhesitatingly this Court has come to a conclusion that time and again the apex Court had deprecated the practice of educational institution admitting the students without requisite recognition or affiliation. In all such cases the usual plea is the career of innocent children who have fallen in the hands of the mischievous designated school authorities. Though the ultimate victims are innocent students, that cannot be a ground for granting relief to them. 19. The apex Court further held that the interim orders passed in the present case are detrimental to education and its efficient management. As a matter of course, such interim orders should not be passed, as they are aberrations and it is subversive of academic discipline. 20. Students have suffered because of the objectionable conduct of the opposite party no.4-institution. It shall be open to them to seek such remedy against opposite party no.4-institution as is available in law, about which aspect we express no opinion. 21. In view of such position, we find that the writ petition merits no consideration. Accordingly, the same is hereby dismissed without any order as to costs.