JUDGMENT
Binod Kumar Roy, J.
1. The petitioner, Head Master or B.N.M.D. Aawasiya High School, Lakhisarai, hereinafter referred to as the School, through this writ petition (which was admitted on 13.3.1989) prays for issuance of a writ in the nature of mandamu commanding and directing the respondents to issue Admit Cards.
FACTS:
2. The petitioner asserts that “the school” was established in the year 1980. After fulfilling the requisite criteria for its establishment and after following up the due procedure and after due verification and inspection by the competent authority, it was granted permission to establish as proprietary school vide office order of the Director, Secondary Education vide Memo No. 6212, dated 5.2.1988, as contained in Annexure-1. Earlier such schools were formally required to send their students for matriculation examination through another recognised schools but the Government for the purpose of its Annual Secondary Examination of 1989 decided that such Schools would be competent to take test examination of their students for the purpose of appearance in the Secondary Examination from such schools and that such schools will be entitled to send private students also but the number of such private students should not exceed 50% of the regular students. The decision was also published in various newspapers one of which is as contained in Annexure-2. The registration of 148 students of the school in question was done with the Bihar School Examination Board after depositing the prescribed requisite fee. On 15.12.1988 the District Education Officer, Manger (Respondent-3) came to the ‘school’ and asked for its records. Records were produced before him and thereafter he left. The petitioner learnt that certain report was sent to the Board by the said District Education Officer about which an information was sent by the petitioner through letter No. 5/89 dated 2.1.1989 (as contained in Annexure-3). Till 21.12.1988 fees and forms of the students of the petitioners’ school were received. On 24th February, 1989 even Admit Cards were distributed from the Headquarters situate at Manger to all schools but when the petitioner approached for the Admit Cards of his students, he was told that the same has not been sent by the Secondary School Examination Board. The action of the Board in not issuing the Admit Cards to the students of the petitioner’s school is thus wholly illegal, arbitrary and without jurisdiction and is bound to play havoc with the career of the students. The Board was under an obligation to send Admit Cards after having accepted the fees and forms and after issuance of Registration Numbers and was not justified in withholding the Admit Cards without seeking any information from the school about the facts stated in the report of the D.E.O. which are incorrect.
3. In the counter affidavit filed only on behalf of Respondent No. 4, the Bihar School Examination Board, at the admission stage of the case, it has been stated to the effect that the reliefs claimed for are not tenable in law and are fit to be rejected, that the report of the D.E.O. (as contained in Annexure-A) has been sent after verification of the school and there is no reason to disbelieve the facts mentioned therein, that when the fees and forms were accepted, the Board was not aware of the facts stated in Annexure-A and that in terms of the interim order dated 28.2.1989 orders were passed, as contained in Annexure-B, allowing the students to appear in the examination.
4. On behalf of the petitioner, a rejoinder was filed to the said counter affidavit, stating that the Government has taken a decision to permit the students of such schools which were given permission to establish like the petitioner’s school which is evident from Annexure-2, that hundreds of schools in the State of Bihar, like the petitioner’s school have sent up their students who have been allowed to appear in the examination, that the report of the District Education Officer is against the records inasmuch as while submitting the report, the District Education Officer had taken into account the attendance Register of only one section, namely, Section C and not of Sections A and B.
5. On 28th February, 1989 this Court had passed the following interim order:
We feel that this matter should be disposed of with greatest expedition. We, therefore, direct that this case should be listed for further hearing on 10th March, 1989 as first case under the same heading. The respondents must file their counter affidavit by 6th March, 1989. We further direct that if possible the Admit Cards of the students sent up by B.N.M.D. Adwasiye High School, Lakhisarai, Munger who have already been granted registration number should be issued to the Headmaster of the said school in time for them to appear in the ensuing secondary examination which is said to commence from tomorrow. In case this is not possible, then in the event of success of this application the authorities will be required to hold special examination for the aforesaid candidates.
Sd/-S.S. Hasan
Sd/-S.B.Sinha
SUBMISSIONS:
6. Mr. Ganesh Prasad Singh, learned Counsel appearing for the petitioner, in support of the Rule submits as follows:
(i) The District Education Officer (Respondent No. 3) took into account the Attendance Register of only one section, namely, Section-C and not the attendance registers of Sections A and B. It is thus clear that the report (Annexure-A) stand vitiated. This fact has also not been denied by the D.E.O. and for the said reason the allegations made against him are fit to be accepted.
(ii) From the decision of the Government, as contained in Annexure-2, it is clear that those High Schools who had obtained permission of establishment were competent to hold tests. That having been done by the petitioner, the Bihar School Examination Board was not justified in withholding issuance of admit cards.
(iii) The relief prayed for by the petitioner, pursuant to the interim order dated 28th February, 1989 having been granted by issuance of the admit cards the students of the petitioner’s School appeared in the examination but their results have been illegally withheld and the Respondent No. 4 should be directed to publish the results.
7. Mr. Y.V. Giri, learned Counsel appearing for Respondent No. 4, the Bihar School Examination Board, submits (i) that this petition itself has become in fructuous in view of the fact that the only relief claimed has already been granted by order, dated 28th February, 1989 passed by this Court which was also complied with, (ii) that Respondent No. 4 has not committed any illegality in withholding issuance of admit cards on the report of the District Education Officer, as contained in Annexure-A, in regard to which there is no contrary material before this Court to disbelieve the correctness of the facts stated in Annexure-A, and (iii) for the said reasons, the writ petition is fit to be dismissed.
MY FINDING:
8. The interim order passed on 28th February, 1989 was a condition, one. This is apparent from the order itself that “In case this is not possible then in the event of success of this application, the authorities will be required to hold special examination for the aforesaid candidates.” In the said view of the matter, I am of the view that the writ petition has not become in fructuous as argued by Mr. Giri simply because on the basis of the interim order respondent No. 4 had allowed the students of the petitioner’s school to appear in the examination.
9. The other submission that there is no material before this Court not to accept the correctness of the facts stated in the report (Annexure-A) of the District Education Officer-Respondent No. 3 is also not tenable. Facts stated in paragraphs 7 to 9 of the writ petition have not been denied by the District Education Officer Respondent No. 3. The petitioner was also not given the report as contained in Annexure-A. The fact stated in the rejoinder dated 6th March, 1989 of the petitioner to the under affidavit Board stating that the District Education Officer, at the time of his inspection had looked into the Attendance Register of Section C alone and not of Sections A and B, has also not been denied. This lends me to believe the facts stated by the petitioner in the writ petition as also in the rejoinder dated 9th March, 1989.
10. A question arises as to whether in this backdrop the Board (Respondent No. 4) was/is justified in withholding the results of the students of the petitioner’s school and whether a direction in this regard, though not specifically asked for in the writ petition, can be issued.
11. In my view, this Court while exercising its jurisdiction under Articles 226 and 227 of the Constitution of India can take into account subsequent events in order to do complete justice between the parties.
12. The subsequent events in this case are apparent. The students of the petitioner’s school have already appeared. Mr. Giri could not show me any provision that the Board has any authority to withhold the result of the students who have appeared in the examination except for unfair means.
13. I think there would be a failure of justice if this Court shuts its eyes in not granting an appropriate relief in such a condition. It has not been stated that the students of the petitioner’s school, who had appeared in the ‘examination’ were found guilty of impersonation or any type of unfair means.
14. In the said view of the matter, exercising my jurisdiction under Articles 226 and 227 of the Constitution of India, I direct respondent No. 4 to publish the result of the students of the petitioner’s school within 60 days from today.
15. In the result, this writ petition is allowed but in the peculiar facts and circumstances without cost.
16. Let a writ in the nature of mandamus issue accordingly.