Full Judgment Text
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CASE NO.:
Appeal (civil) 4908 of 2006
PETITIONER:
Minor Sunil Oraon Tr. Guardian & Ors
RESPONDENT:
C.B.S.E. & Ors.
DATE OF JUDGMENT: 13/11/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(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-
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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
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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
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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
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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:
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"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\005\005"
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\005\005\005\005 "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
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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
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costs.