Maharashtra Vs. Admane Anita Moti  INSC
440 (31 August 1994)
R.M. (J) Sahai, R.M. (J) Singh N.P. (J)
1995 AIR 350 1994 SCC (6) 109 JT 1994 (5) 398 1994 SCALE (3)891
Judgment of the Court was delivered by R.M. SAHAI, J.- The real issue in the
appeal, whether the High Court was justified in directing the Education Officer
by way of interim order, to ensure that 112 students, all girls, admitted by
Respondent 102, a Christian minority institution, to Diploma in Education (D.Ed.)
course for the academic year 1991-92 against the sanctioned strength of 80
should be accommodated and admitted in proper colleges, got submerged in an
incidental issue of legality and propriety of one Bench disagreeing with a coordinate
Bench of the same court on grant of interim order.
the issue of propriety was bloated out of proportion by the State of Maharashtra, presumably, in its anxiety to get
the interim order passed by the High Court stayed is a matter of concern. Two
basic circumstances, one, by way of affidavit and the other, oral, which
persuaded this Court to pass the order were an averment, in the special leave
petition, that when the petitioners approached the High Court for grant of one
month's time, from 20-10-1993, to enable them to file an appeal in this Court,
the request was turned down even though the Bench was apprised that this Court
was closed for Dussehra vacation till 26-10-1993, and the appellant was
directed to comply with the order by 25-10-1993 even when similar request for
interim order had been turned down, earlier, twice by two different Benches.
The other was, oral, by the learned counsel for the State that the High Court
did not extend the time for approaching this Court because it observed that
stay orders are granted by this Court, even, at midnight.
may have been 112 the purpose or objective of stating it but the manner in
which it was placed before a Bench of this Court of which one of us (R.M. Sahai,
J.) was a member, it did have the desired effect resulting in an interim order
staying further proceedings in the High Court. But when an affidavit was filed,
by an officer of the Department who was present in the court, it transpired
that a mountain had been made out of nothing. The affidavit states that the
Bench did not extend the time and when it was informed that this Court was
closed till 26-10-1993 it observed that it was not
necessary to grant any time as "citizens are well aware that the doors of
Supreme Court are open at midnight
even". An observation by a Judge, presiding over the highest
constitutional Court of the State which is apt to be misunderstood or
misconstrued should be avoided in the interest of the institution. The learned
Judge should have refrained from making the observation which was not only
unnecessary but apt to create misapprehension. But it was even more unfortunate
that it was taken advantage of by the appellant, who did not act with
responsibility as is expected of it in creating misleading impression on this
Court to serve its own purpose. The appellant should have behaved like an
enlightened litigant and not like an ordinary person to obtain an interim
order, which was of little consequence, except that it appears to have hurt the
vanity of the Education Department. We refrain from saying further except
expressing our anguish.
only that the appellant even attempted to assail the observation by the Court
in its order dated 20-10-1993 that the impugned order having being passed with
consent there was no justification for delay in compliance of it.
portion of the order is extracted below:
the previous order dated 30-9-1993 which we passed after discussion upon which
111 students, agreed to appear fresh to April 1994 on payment of fresh fees,
the Education Officer agreed to accommodate these students, who were directed
to appear before him on 4-10-1993 and the petition was posted on 8-10- 1993 to
report compliance. This was an agreed order. The petition was taken up in view
of observations of the SC in SLP No. 9598 of 1992 dated 30-3-1992. Also we considered the fact that all 111 students
are women." This has been attempted to be diluted by the appellant by
averring as under in paragraph (xiv) of the SLP:
despite the aforesaid situation being pointed out to the Hon'ble High Court,
the High Court declined to grant any time beyond 25-10-1993 and surprisingly
for the first time it was sought to be imputed that the earlier order dated
30-9-1993 was an order by consent.
the petitioners respectfully say and submit that the perusal of earlier
directions clearly indicates that no such consent was either sought for nor
given by the concerned officer and as such the finding in this regard is
totally incorrect." It is well established that the factual recitals or
observations made in a judgment or order are taken to be correct unless
rebutted. The burden to 113 rebut it is on the person who challenges it. One of
the methods to rebut such observation is to file the affidavit of the person
who was present in the Court and to produce such material which may satisfy the
Court that the recital in the judgment crept in inadvertently or it was
the averment extracted above would indicate that it is a statement more of law
than rebuttal of fact of what happened in the Court. The Deputy Education
Officer has not taken upon himself the responsibility of denying the
observation in the affidavit categorically. The counsel who appeared before the
Court and was required to file affidavit did not do so. A skilful drafting by
vaguely asserting without even stating and explaining why consent could not
have been given cannot be held to be sufficient rebuttal of statement of fact
in the order passed by the High Court.
may now advert to if the Bench in granting interim order acted illegally or
with impropriety. The respondent is a recognised minority institution entitled
to admit 80 students in D.Ed. in an academic year. For 1991-92 it admitted 112
students. Reason for it was that the respondent has been claiming complete
immunity from any control by the Education Department. Similar dispute had
arisen earlier and the respondents had filed WP (C) No. 1703 of 1990
challenging the guidelines issued by the Department in which notice was issued
but no interim order was granted.
Education Officer, therefore, did not approve of the admissions and issued
notice cancelling the admissions as they were beyond the sanctioned strength
and the institution had not followed the guidelines issued in this regard by
the Department. Since the admission for 1991-92 was cancelled for not observing
the guidelines the Management filed an Application No. 562 of 1992 in WP (C)
No. 1703 of 1990 for regularising the admission granted by it to 112 students.
was rejected by a Division Bench of the High Court. The order runs as under:
hearing the counsel for the petitioner, we do not find any rational basis for
selecting these 112 students. Under the circumstances, we are not inclined to
grant any interim relief. Even otherwise, last date for submitting of forms is
over long back.
may seek appropriate relief at the time of disposal of main petition. Liberty to move for fixed date of hearing.
subject to aforesaid." Therefore, some of the students who had been
granted admission filed Writ Petition No. 585 of 1992 in which, too, the prayer
for interim order was rejected by a detailed order taking note of the earlier
order. It was observed:
far as the interim relief is concerned, in view of the above order passed by
the Division Bench of this Court on 26-2-1992, we are bound by the said order.
The interim relief is refused on two grounds; firstly, on the ground that there
is no rational basis for selection of 112 students; and secondly, that the last
date for submitting forms is over long back." This order was challenged by
way of SLP in this Court which was disposed of on 30-7-1992 by requesting the High Court to decide the writ petition
114 along with earlier petition at an early date. But the High Court could not
take up the matter. Consequently another set of students filed another Writ
Petition No. 2654 of 1993 in which the impugned order was passed on 30-9-1993 as under:
students shall appear before the Education Officer, Zilla Parishad, Ahmednagar,
on Monday 4-10-1993 at 11.00 a.m. The Education Officer, Zilla Parishad, Ahmednagar, shall
take necessary steps to see that the students are admitted to proper D.Ed.
colleges. He shall also take necessary steps to complete the education course
of these students so as to make them ready to appear for the D.Ed. examination
first year course for April 1994. The petition stands adjourned to 8-10-1993, for the Education Officer, Zilla Parishad, Ahmednagar,
to report compliance.
made clear that all the petitioner- students are to be admitted on payment of
regular fees." Interim orders are granted by the court as they are
necessary to protect the interest of the petitioner till the rights are finally
adjudicated upon. Even where it is not provided in the statute this Court has
held that the courts have inherent power to grant it. In admission matters,
however, such orders once obtained create vested interest of avoiding final
adjudication to enable the student to complete the course and then invoke
sympathy of the court.
further need be said as the circumstances in which the impugned order was
passed were entirely different.
interim orders were not granted as the claim of the Management that it was not
under regulatory supervision of Education Department and was entitled to admit
students even more than the sanctioned strength was pending and had not been
decided. But on the date the impugned order had been passed Writ Petition No.
1703 of 1990 had been decided by a Bench on merits and one of the Hon'ble
Judges who granted the interim order was party to the decision. The petition
was allowed in pan and the Management was permitted to admit 80 students, the
strength which was sanctioned by the Department. The decision it is not
disputed has been accepted by the Department. No appeal has been filed against
it. The order, thus, passed by the High Court, even though interim, had been
passed after the dispute pending between Management and the Department had been
decided on merits. The reason for rejecting the application filed by the
Management for interim order and by the writ petition filed by the students,
earlier, disappeared. In view of the decision in WP (C) No. 1703 of 1990 the
Department cannot assail correctness of the order passed by the High Court to
the extent of the sanctioned strength.
things did not stop there. The High Court by way of interim order granted
admission to 112 students. This was because the Department agreed for it. In
fact it was a consent order as is clear from the observation made by the Bench
which has been extracted earlier. When the Department wanted to drag its feet
the Bench made following observation:
Education Officer was directed to comply with the order in the interest of the
students. The petition was kept today when counsel sought 115 to tender letter
dated 19-10-1993 of the Supreme Court, Advocate
letter taken on record. It Is not seen that SLP is filed.
question of Education of III lady students and the arrangement was agreed upon.
The Education Department has not been fair to the court when the Education
Officer is not even present today. This, is interference.Education Officer, Mrs
Deshmane and the Deputy Education Officer, Mr Bhagwat are directed to present themselves
personally on Monday
25-10-1993 to answer
learned counsel is also directed to bring this order to the notice of the
Supreme Court through their counsel at Delhi, when the matter is taken up before the Supreme Court put up on 25-10-1993 at 10.30 a.m.
first on board." Dispute about consent raised by the Department has been
referred to earlier. But it was not correct. The Department definitely agreed
and it was on its concession that the Court passed the order. The concession on
behalf of the appellant precluded it from challenging the order.
indeed surprising and shocking that the Department did not bring the vital fact
to the notice of this Court that WP (C) No. 1703 of 1990 had been allowed on
the day the impugned order was passed. It is not possible to accept the
submission of the learned State counsel that the Department was not aware of
it. It came to the notice of this Court when a copy of the judgment was filed
in May 1994. The appellant, thus, not only concealed important information from
this Court but it played with the career of students who even after the order
passed by the High Court have lost nearly two years.
Normally this Court does not interfere with consent order. But it was made
against law. It was in teeth of even the decision given in WP (C) No. 1703 of
1990. The order was passed, presumably, because the eligibility criteria of D.Ed.
had been changed by the Government and it would have adversely affected the
students who, as stated earlier, were all girls. The High Court in the
circumstances thought it proper that since such students will be nowhere and if
the Government in earlier years had accommodated similar students who were
admitted by colleges which were not recognised then it would be in fitness of
things that the students who were admitted by an institution which was recognised
at the time of admission were entitled to indulgence by directing the students
to be accommodated in other colleges. This was not proper. One illegality cannot
justify the other. The utmost that the High Court could have done (sic was) to
record the consent and to ask the Government to consider the matter and raise
the strength in the special circumstances for one year. Such misplaced equities
encourage indiscipline and the managements of those educational institutions
which are gradually degenerating and converting such institutions into
commercial houses, flout the orders of educational authorities and the
Government, fleece the students and their parents and then leave the students
to invoke sympathy of the court to protect them from the exploitation suffered
by them and save their career from being ruined.
consider it necessary to place on record that after the order was reserved,
after hearing learned counsel for parties, we directed it to be listed 116
again, for further hearing and requested the learned State counsel to obtain
further instructions as the dispute involved was not only with respect to
admission based on concession but it did not reflect well on the officials of
the Education Department. In pursuance of it the learned counsel has placed a
letter on record that the Government was willing to accommodate 80 students. That
they were bound to after the decision in WP (C) No. 1703 of 1990. The
Government in agreeing to accommodating 80 students is not showing any
concession. The purpose of granting time for further instructions was to find
out a solution for those students who were admitted beyond sanctioned strength.
But the letter is silent.
is further stated that there are only 27 students of minority community. And it
would be financially more viable if the students in batches of 10 to 15 are
placed in several D.Ed. colleges for completion of first year D.Ed. course
instead of putting all 80 students in one D.Ed. college.
has not been pointed out as to what is the difficulty in permitting these 80
students to study and complete their course in the same college. No stipend
appears to be paid by the Government. Further the Government having sanctioned
the strength, there appears no reason to assume that the institution shall not
be able to impart education. The Management too has not expressed any
difficulty in this regard.
these reasons this appeal is disposed of with following directions:
The Management is directed to produce the list of admissions before the
Education Officer within ten days from today who shall within three days
thereafter scrutinise the list and direct admission of 50% of the sanctioned
strength of students from Christian community. The admission shall be granted
on merits. If students of Christian community are not available the seats shall
go to other students.
The Education Officer shall further grant admission to the remaining 50%
students of other communities, that too, on basis of merit.
(a) So far 31 remaining students out of 112, one having died during pendency of
the writ petition in the High Court, are concerned the Education Officer should
send a letter to the Government to raise the sanctioned strength to III for
1991-92 only. The Government may consider sympathetically, the question of
raising the strength of the institution for one year or accommodate them in
other colleges as all the candidates are girls belonging to backward class. The
Education Officer shall write to the Government within two weeks from the day a
copy of this order is produced before it. The Government may pass appropriate
orders within one month from the date of receipt of the recommendation.
These extra students, if admitted, shall be distributed in other D.Ed. colleges
for which necessary directions shall be issued by the Education Officer.
In case the facility in the respondent- college is available for 80 students
then the Education Officer shall permit all the 80 students to 117 study in the
college, complete their course and appear for the examination. But if there is
any technical difficulty it shall be open to the Education Officer to
accommodate the students in different colleges in such batches as are feasible.
This exercise shall be completed within the same time as is allowed for
scrutiny of the applications. It shall further be the responsibility of the
Education Officer to ensure that if any student is sent to a college, other than
the respondent-college, then his studies are not hampered and she is permitted
to complete the course.
the time is short then the respondent institution shall hold extra classes for
all the students, complete their course so as to enable them to appear in their
examination for the first year at the appropriate time.
view of the facts we were inclined to issue notice to Deputy Education Officer,
Zilla Parishad, Ahmednagar, to show cause for concealing the truth from this
Court that on the date the impugned interim order had been passed Writ Petition
No. 1703 of 1990 had already been decided. But the learned State counsel
succeeded in persuading us that he shall ensure that the authorities are more
careful in future. For the same reason and on persuasion by the learned State
counsel we are not imposing any exemplary costs on the State of Maharashtra and
direct the parties to bear their own costs.