JUDGMENT
Pranab Kumar Deb, J.
1. The application for condonation of delay in preferring the review petition and the main application for review of the order dated September 6, 2004 passed by the Division Bench have been heard together.
2. Admittedly, there was some delay in preferring review application. The applicants have satisfactorily explained the reasons for the delay in filing the review petition. Evidently, the materials and particulars could not be placed earlier. The delay having been properly explained, the application in CAN 2900 of 2005 for condonation of delay is allowed.
3. Following the denial of admission of their wards in Sibpur Hindu Girls’ High School, the writ petitioners prayed for automatic admission of their wards in class-V of that institution without their wards undergoing the admission test. Claiming their fundamental right under Article 21 of the Constitution of India to get their wards admitted in Class-V of Sibpur Hindu Girls’ High School, the writ petitioners contended that in view of their wards clearing the final examination of the primary section with success, an unfettered right to get automatic admission in the secondary wing of the institution had accrued in their favour. In disposing of the writ petition, the learned Judge directed the School Authority to admit the candidates in waiting list with a direction to fill in the remaining seats with the wards of the petitioners who had not yet been accommodated. Direction was also given to the School Authority to write to the District Inspector of School to accommodate the rest of the wards of the petitioners, who could not be accommodated in the existing strength, as a special case.
4. The aforesaid direction to accommodate the wards of the petitioners in Sibpur Hindu Girls’ High School was challenged in appeal. In disposing of the appeal, the Division Bench observed that the student of class-IV of the Primary Division of the self same school should be automatically admitted in class – V without any admission test, but, in the event of the school had seats in excess after accommodating those promotees from Class – IV, the Authority would be liberty to hold the selection test for the other candidates. The Division Bench accepted the contention of the writ petitioners that the self same school had two divisions – one in the primary division and the other in the secondary division.
5. The appellants through their review application have prayed for recall of the order dated 16/09/04 passed by the Division Bench in F.M.A. 2056 of 2004 (M.A.T. 2481 of 2004.)
6. Appearing on behalf of the petitioners/appellants, Mr. Bikash Ranjan Bhattacharjee, senior counsel, has submitted that the Court of appeal failed to appreciate the fact that Shibpur Hindu Girls’ Primary School and Shibpur Hindu Girls’ High School were two separate entities, being, run by different managing committees. There were no common agenda for both the institutions either. The members constituting the elected bodies were not even common. There being no nexus between the two institutions, the observation of the Division Bench that the same school had two divisions – one in the primary division and the other in the secondary division – was factually incorrect, as urged by Mr. Bhattacharjee.
7. Relying on the case of Managing Committee, Nangi High School and Ors. v. Shankar Pal and Ors. reported in 2002 (4) CHN 402 and Headmistress, Kalikrishna Balika Vidyalaya Sethpukur and Ors. v. Chittaranjan Shil and Ors. . Mr. Bhattacharjee has sought to impress upon the Court that since the primary school and the high school are administratively separate with each of the institutions being run by different management committees, there cannot be any question of direct and automatic admission into the High School. It is contended that there is no unimpeachable evidence on record to indicate that the two wings are integral part of the same institution. Both the institutions worked in their respective spheres without having interaction and interlink with each other. Refering to the Rule 10 of the Management of recognized Non Government institutions (Aided and Unaided) Rules, 1969, it is submitted that the Academic Council of the secondary school is competent enough to decide how admissions to the school are to be made. Being a separate entity, Shibpur Hindu Girls’ High School formulated its own policy of admission into the school. The direction of the Trial Court and the Appellate Court for direct and automatic admission of the wards of Shibpur Hindu Girls’ Primary School in the Shibpur Hindu Girls’ High School after the final test is, as such, contrary to the statutes and well established rules.
8. Appearing on behalf of the opposite parties, Mr. Indranath Mukherjee has challenged the maintainability of the Review Petition. It is contended that the Division Bench passed the final order after considering all the aspects of the case. There being no apparent mistake or error on face of record, it would be beyond the scope of review. Mr. Indranath Mukherjee has cited the case of Dilip Nath Sen v. Certificate Officer and Ors. reported in AIR 1962 Calcutta 346, in support of his contention that the parties are to come prepared with all their materials at the first hearing and if. they do not come properly prepared, they ought not to be allowed to renew the matter on discovering some facts which they had omitted to bring forward earlier. They let the opportunity lie abegging. Nobody prevented the petitioners from citing the decisions at the appropriate stage of hearing. The opportunities not being availed of, they cannot be allowed to retrieve their position by citing the new decisions under the cover of a review petition. Referring to the provision of Section 114 and Rule 1 of Order 47 CPC, Mr. Mukherjee has argued that the principles of review as underlying in the Code will have no. application in the wit petition. The scope and ambit the Writ Court and Civil Court being altogether different, the same principles of review as contained in the Code of Civil Procedure cannot be applied in writ proceeding.
9. Making a passionate plea for automatic admission of all the students of the primary section into the secondary section of the same institution, Mr. Mukherjee has submitted that untold hardships would entail on the students if they are required to go through the admission test for taking admission in class-V of the same institution. Having come out successfully in the annual test, ,the wards are under the reasonable expectations of joining the next class after promotion. Denial of such admission, it is contended, would be a negation of justice. Mr. Mukherjee contends that admission test is required when a student of an institution seeks admission in another institution. It is certainly not necessary when a student in the same institution seeks admission in another class. Mr. Mukherjee has cited the case of Brambho Balika Shikshalaya and Anr. v. Debasish Kar Gupta and Anr. reported in 1999 (11) CHN 680, to vindicate his stand that secondary section is not empowered to hold separate admission test for students of the primary section of the same school. It is contended that the Apex Court underlined that the two wings – secondary and primary did not have separate and distinct entities of its own. It was observed that the kids who had taken admission in the Montessori section of the school long way back and had been doing well throughout could not be asked to appear at another examination for admission in class-v only because the secondary section of the school was governed by another statute. The Court rightly held that class – IV final examination could not be treated is terminal examination for those students who wanted to continue their studies in class-V and upwards of the same school.
10. Noticing certain striking features, as emerged from the affidavit-in-opposition, the Court disbelieved that the primary and the secondary section of the same school had independent and distinct identities. The secretary of the school in his affidavit-in-opposition, inter alia, stated that all the sections were managed by the same Managing Committee. It was also stated in affidavit-in-opposition that Sadharan Brahmo Samaj had full control over the process of teaching in the school. It was also averred that there was no honorary secretary in the school. The Headmistress of the school was also found to be the secretary of the Managing Committee of the primary section of the said school. In view of the revelation of such facts, the Court viewed that Sadharan Brahmo Samaj had been managing the affairs of all sections of the said school. Accordingly, the Court did not find any justification for holding separate admission test for students of the primary section of the same school. Things are completely different in the instant case. The materials placed before us do indicate that primary section and secondary section of the school are governed by two managing committees. Nowhere we find any indication that Shibpur Hindu Girls’ High School has got any control over the administration of Shibpur Hindu Girls’ Primary School. The teachers of the two institutions are found to be different. There is no indication whatsoever that the administrators of Shibpur Hindu Girls’ High School have got any control over the teaching imparted in Shibpur Hindu Girls’ Primary School. It has not been reflected in the prospectus of the Shibpur Hindu Girls’ Primary School that it is well connected and interlinked with the Shibpur Hindu Girls’ High School. The writ petitioners have not placed any document before us to convince that both the institutions are funded by the same organization. Different establishments, offices and institutions may be housed in the same building. The mere fact that the two educational institutions are housed in the same building cannot be considered to be reasonable yardstick for viewing the two institutions as two wings of the same organization. The fact that similar logos are used is of little significance. Apparently, the two institutions are found to be distinct and independent, having no nexus with each other. We are afraid we cannot subscribe to the view that: Shibpur Hindu Girls’ High School and Shibpur Hindu Girls’ Primary School are two different wings . of the same institutions. The materials on record do not bear out that the two institutions are two integral part of the same school. The primary school and the high school have got separate administrative entities. Both the institutions having distinctive identities, there cannot be automatic admission in the Shibpur Hindu Girls’ High School from Shibpur Hindu Girls Primary School.
11. Detection of apparent error or mistake on face of record calls for reconsideration or recall of the order. The principles of review as embodied in Section 114 and Order 41, Rule 1 CPC can be rightly applied in deciding the review petition in writ matters. In remanding the matter, the Apex Court in Green View Tea Industries v. Collector Golaghat, Assam and Anr. , observed that since the material evidence on record not taken into account in Judgment sought to be reviewed, it constituted “error apparent on face of record”. Similarly, in the case of State of West Bengal and Ors. v. Sujit Kr. Rana , the Apex Court held that High Court can exercise its power of judicial review in the event of the Criminal Courts are found exceeding its jurisdiction. The factual aspects were not placed before the Division Bench at the time of hearing of the appeal. Apparent error and mistake cropped up on face of record because of the failure to place factual aspects in the proper prospective before the Court. The material evidence, as such, could not be taken into account. Such omission and mistake, thus, constituted “error apparent on face of record”.
12. In view of the above discussion, we are of the view that the stand taken by the single Judge appears to be incorrect. In allowing the review petition, we recall the earlier order dated September 6, 2004 in F.M.A. 2056 of 2004 (M.A.T. 2841 of 2004) by setting aside the order of the single Bench in W.P. No. 10040(W) of 2004. Since Shibpur Hindu Girls’ High School and Shibpur Hindu Girls’ Primary School being two independent and distinct institutions, there cannot be straightway and automatic admission in Shibpur Hindu Girls’ High School for the students of Shihpur Hindu Girls’ Primary School. We are, however, alive to the fact that untold misery and sufferings may be faced by those students who have already taken admission in Shibpur Hindu Girls’ High School from Shibpur Hindu Girls’ Primary School if their admissions are nullified by our order. Accordingly, we make it clear that the students who have already taken admission in Shibpur Hindu Girls’ High School by dint of the order of the single Bench and the earlier orders of the Division Bench would not be affected by our present order. They must be allowed to continue their studies in the Shibpur Hindu Girls’ High School if they have already taken admission therein.
In the result, both the review application for condonation of delay are allowed on contest without any order as to cost.
Alok Kumar Basu Basu, J.
13. I agree.