Minor
Sunil Oraon Tr. Guardian & Ors Vs. C.B.S.E. & Ors [2006] Insc 794 (13
November 2006)
Arijit
Pasayat & Lokeshwar Singh Panta
(Arising
out of SLP (C) No.11820 of 2006) ARIJIT PASAYAT, J.
Leave
granted.
Challenge
in this appeal is to the judgment rendered by a Division Bench of the Jharkhand
High Court dismissing the Letters Patent Appeal which was filed by the
Cambridge School Parents Association and another questioning legality of the
judgment and order dated 15.6.2006 passed by a learned Single Judge in a Writ
Petition. In the Writ Petition prayer was for a direction to the
respondent-Central Board of Secondary Education (in short the 'CBSE') to allow
the students to appear in the examination conducted by CBSE and to publish
their results. The Writ Petition related to 159 students of Class X and 121
students of class XII of the Cambridge School, Tatisilwai, Ranchi for appearing in the examination
which was scheduled to be held on 1st March, 2006. Though initially learned Single Judge had permitted candidates
to appear pursuant to interim order dated 27.2.2006, subsequently the writ
petition was dismissed on the ground that the school was not affiliated to the
CBSE and, therefore, no direction sought for could be given. In the appeal
filed under Clause 10 of Letters Patent, the view was endorsed.
In
support of the appeal learned counsel for the appellants submitted that for no
fault of theirs, the academic career of nearly 300 students is being
jeopardized. Non- affiliation for some particular years has been highlighted by
learned Single Judge and the Division Bench overlooking the facts that
affiliation has been granted on 29.8.2006 for the academic session 2006-07
covering the period from 1.4.2006 to 31.3.2007.
In
response, learned counsel appearing for CBSE and its functionaries submitted
that the present appellants were proforma respondents before the High Court and
the Cambridge School Parents Association purporting to be an unregistered
Association of Parents of children studying in the said institution was the
appellant. Further one of the proforma respondents was the appellant No. 2
before the High Court. It is pointed out that law is fairly well settled that
students of non-affiliated schools cannot claim any relief on equitable ground.
Any sympathy shown to the students of the unaffiliated and/or non-recognised
institutions would be mis- placed sympathy.
Certain
facts which are undisputed need to be noted:
The
respondent No. 4 the Cambridge School had applied for grant of affiliation in September 1994 and
was granted affiliation for a period of three years i.e. with effect from
1.4.1994 to 31.3.1997. The school applied for upgradation to plus 2 stage and
the school was accorded upgradation up to plus 2 stage for a period of three
years from 1.4.1996 to 31.3.1999. The affiliation of the school at Secondary/Sr.
Secondary level was further extended for a period of three years from 1.4.1999
to 31.3.2002 and thereafter up to 31.3.2005 subject to fulfillment of
Examination Bye Laws and the Affiliation Bye Laws of CBSE. As per the
Affiliation Bye- Laws of CBSE, the school applying for affiliation has to
fulfill certain essential conditions. The relevant provisions relating to
affiliation in the Bye Laws are as under:
(i) It
is mandatory for a school affiliated to Board to follow the Examination Bye-
Laws of the Board in toto;
(ii)
No affiliated school shall endeavor to present the candidates who are not on
its roll nor shall it present the candidates of its unaffiliated Branch/School
to any of the Board's Examination.
(iii)
If the Board has reasons to believe that an affiliated school is not following
the Sub-section 1 & 2 of this Section, the Board may resort to penalties as
prescribed hereunder.
(iv)
Every affiliated school shall present a list of number of students and their
particulars in respect of Classes IX, X, XI & XII at the time of beginning
of an academic session.
According
to the respondent CBSE, the school in gross violation of Affiliation Bye-Laws
was admitting large number of students in the secondary and senior secondary
classes without providing support in terms of infrastructural facilities and
also without adequate provision of qualified teachers.
There
were 30 sections in the school in classes IX to XII whereas there were only 40
sections from Nursery to Class VIII. It was also found that the school had
admitted students from other unauthorized schools and sponsoring the students
of unaffiliated school through this school. Inspection by the Inspection
Committee constituted by CBSE was conducted and the Inspection Committee found
that the school was not abiding by the Examination Bye Laws/Affiliation Bye
Laws of the CBSE. It was further noticed that in clear violation of the norms,
the Cambridge School, Tatiswal, Ranchi which was the only school affiliated
with the CBSE was running three schools which were not affiliated with the
CBSE, they are as follows:
1. Kamla
Nehru Vidya Mandir Tatisilwai, Ranchi,
2. Cambridge School, Kumartoli, Ranchi,
3. Cambridge School, Morhabodi, Ranchi.
The
Inspection Committee found that the said school was not in a position to
accommodate a large number of candidates as has been sponsored by it for taking
All India Secondary School Examination and All India Senior School Certificate
Examination to be held in the year 2002 and 2003. Other deficiencies were also
noticed. One of the major infraction was that the school failed to produce the
original school records, namely acquaintance roll of the teaching/non teaching
staff working the school affiliated with the CBSE, fee collection register and
the class wise attendance register. A large number of students had been
sponsored for appearance, though the number of bonafide students was much less.
Notice
was sent to the school to show cause as to why necessary actions are not to be
taken to withdraw provisional affiliation granted. Considering the replies to
various communications by letter dated 27/28.2.2003 the school was informed as
follows:
"However,
taking into consideration the career of students and to safeguard the academic
future of present students studying under the CBSE pattern and are in the
Classes IX, X, XI & XII, the Competent Authority of the Board has agreed to
permit all these students to appear at the All India Secondary and All India
Sr. Secondary Certificate Examinations, scheduled to be held in March, 2003 and
2004. But the school will not run any class under CBSE pattern specifically
classes IX, X, XI & XII w.e.f academic session 2003 and 2004 and in case of
any violation in this regard the responsibility and consequences would rest
upon the school authorities and the Board shall not be responsible." CBSE
was requested by the School to reconsider and review the decision regarding
withdrawal of violation. In reply CBSE vide its letter dated 23.7.2003 advised
the school not to run any Secondary/Senior Secondary classes under CBSE
pattern.
A
mercy appeal vide letter dated 19.1.2003 was submitted by the school and
request was made to safeguard the educational interest of the students. The school
instead of removing the deficiencies communicated to them by CBSE, requested
for a sympathetic consideration by letter dated 16.3.2004. Joint Secretary
(Affiliation), CBSE informed the school to submit the status report of removal
of deficiencies as had been intimated to the school and it was, therefore,
required to apply afresh for provisional affiliation as per the requirements of
the Affiliation Bye Laws. The school applied for grant of fresh affiliation by
application dated 31.5.2004.
An
Inspection Team was appointed for inspection of the school. As the essential
conditions had not been fulfilled, the application was rejected by letter dated
7.10.2004. The school was informed about the glaring irregularities committed.
The President of the school again requested CBSE to allow the students to
appear in Class X and XII Board Examinations which was scheduled to be held in
March, 2005. School reiterated its request and by letter dated 19.11.2004 made
a prayer for allowing students of Class X and XII to appear in 2005 Examination
though their application for composite affiliation had been rejected. Certain
undertakings were given in the said letter dated 19.11.2004 which, so far as
relevant, are as follows:
"(a)
We have not taken admission in Class IX and XI and will not admit without the
permission of the Board.
(b) We
have not admitted any additional student in class X and XII for 2005 Exam.
(c) I
firmly promise not to approach the Board in future for examinations to be held
after the students currently in Class X and XII are kindly allowed to take
their examinations in 2005 on humanitarian grounds." On the basis of the
undertaking the Joint Secretary (Affiliation) CBSE by letter dated 9.12.2004
informed the school about the consideration of the request. It was noted that
there were no students in classes IX and XI for the examinations to be held in
2006 and only students of class X and XII were allowed to appear at the All
India Secondary and Senior Secondary Examination to be held in March, 2005 provided
no candidate was directly admitted in class X and XII in the school.
The
school again applied for affiliation on 22.3.2005 clearly indicating that there
was no student in class IX and XI.
By
letter dated 28.6.2005 CBSE informed the School that its request shall be
considered up to Secondary level in the first instance. The school was clearly
warned to stop functioning of its classes upto senior secondary level, without
remaining the deficiencies pointed out on several earlier occasions. Vide
letter dated 6.2.2006 the school requested CBSE to permit 159 students in class
X and 121 students in class XII to appear examination which was to be held in
March, 2006. The request was turned down.
It is
essentially the stand of CBSE that the School is not an affiliated one to the
CBSE and students whose schools are not affiliated with the Board cannot be
allowed to sit in the Board's Examination as regular students. Though by
interim order dated 27.2.2006 the learned Single Judge directed CBSE to allow
the students of class X and XII of the school provisionally appear at the
Examination, the same was subject to the decision of the case. Subsequently,
the Writ Petition was dismissed and as noted above the Letters Patent Appeal
was also dismissed. By filing Additional affidavit the petitioner has stated
that some of the students who have taken the Examination pursuant to the
interim order passed by the Board were in fact bona fide students. 32 students
were studying from the lower schools and the 13 students were also studying
from lower classes but had failed earlier appeared in class XII examination.
Since these students are bona fide students even if it is held that affiliation
has not been granted for certain period, that cannot be taken as a weapon to
practically destroy the educational career of the students. The appellants have
enclosed a list of 159 students of class X and 121 students of Class XII who
were allowed to appear in the Secondary School and Senior Secondary
Examination, 2006 in terms of the interim order passed. CBSE in its affidavit
had clarified that 728 students appeared in Class X Secondary School
Examination which was held in 2006 from the school.
Names
of only 16 students appear in the list of Class XII examination held in 2006.
The details in this regard are stated as follows:
"..further
say that out of 728 students appeared in Class X examination (Secondary School
Examination) held in March, 2004 from Cambridge School, Tatisilwai, Ranchi names of following 16 students only
appear in the list of Class XII examination held in March, 2006 from this
School:
Roll
No. Name March/July, 2004
1.
5140574 Kushal Chopra
2.
5140578 Manoj Kumar
3.
5140616 Renu KumariKarkusha
4.
5140621 Sweety Mahto
5.
5140624 Inu Pradhan
6.
5140658 Ashish Kumar Choudhary
7.
5140688 Manali
8.
5140733 Rohit Kumar
9.
5140803 SubhankarPrabhakar
10.
5140993 Shatabdi Gunjan
11.
5141007 Sanjay Kumar Srivastava
12.
5141051 Mohit Rajan
13.
5141065 Shailendra Chakram
14.
5141172 Ravi Kumar
15.
5141196 Deepika Rani
16.
5141281 Pancham kumar Basant Jonko
I am
stating hereunder the status of 121 students mentioned in Annexure 1 annexed by
the Petitioner with the Special Leave Petition:
SI.
Nos. 6, 7, 14, 20 and 28, 36, 38, 44, 45,48, 49, 54, 56, 75, 78, 87, 104, 106,
117, 119 have not appeared in Class X Examination conducted by the Central
Board of Secondary Education but have appeared from other Board.
The
Roll Nos. of Candidates at SI. No. 34, 79, 121 as stated in Annexure I are
wrong, hence, their status has not been given.
SI.
Nos. 1, 2, 3, 4, 5, 9, 10, 12, 13, 16,17,18,19, 21, 24, 25, 26, 29, 30, 31, 32,
35, 39, 40,41, 42, 47, 50, 51, 52, 53, 55, 57, 58, 59, 61, 62, 65,69, 70, 74,
80, 82, 83, 84, 85, 86, 89, 90, 91, 92, 93,94, 95, 96, 97, 102, 103, 105, 109,
110, 111, 112,113, 114, 115, 116, 118, 120 have not appeared in Class X
Examination of CBSE from Cambridge School, Tetisilwai, Ranch.
I am
enclosing herewith Annexure R-13 showing the details of the students and
schools from where they have passed Class X examination." Now, we would
refer to the law settled by this Court in various Judgments to the effect that
interim orders of the nature 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.
In
Regional Officer, CBSE v. Sheena Pethambaran, [(2003) 7 SCC 719], at page this
Court has observed:
"6.
This Court has on several occasions earner 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" In the
case of C.B.S.E. & Anr. v. P. Sunil Kumar & 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." 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." Yet in
another case i.e. in the case of A.R Christians Medical Educational Society vs.
Govt. of A.P. [(1986) 2 SCC 667] this 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." In the case of State of Tamil Nadu v. St.
Joseph Teacher's Training Institute [(1991) 3 SCC 87] this 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.
In the
case of Central Board of Secondary Education v. Nikhil Gulati [(1998) 3 SCC 5],
this Court deprecated the practice followed by the High Court to issue
direction and also observed that such aberrations should not be treated as a
precedent in future.
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."
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." Time and again, therefore, this 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. As the factual scenario delineated against goes to show the
school has shown scant regards to the requirements for affiliation and as
rightly highlighted by learned counsel for the CBSE, the infraction was of very
serious nature. Though the ultimate victims are innocent students that cannot
be a ground for granting relief to the appellant. Even after filing the
undertakings the School non-challantly continued the violations.
Students
have suffered because of the objectionable conduct of the school. It shall be
open to them to seek such remedy against School as is available in law, about
which aspect we express no opinion.
The
appeal is dismissed but without any order as to costs.
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