HIGH COURT OF ORISSA: CUTTACK
WRIT APPEAL NOS. 148,149,215,222,223 & 226 OF 2010
From an order dated 25.03.2010 passed by the learned Single
Judge in W.P. (C) No. 5640 of 2010.
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W.A. No.148 of 2010
State of Orissa and another ………… Appellants
-Versus-
All Orissa Private Secondary Training
Schools Management Association
and another ............ Respondents
Mr. A.K.Mohanty, Advocate Genral &
For Appellants : Senior Standing Counsel, School and
Mass Education Department.
For Intervenor : M/s Umesh Patnaik & D.Ray
For Respondent No.1 : M/s D.N. Mohanty, P. Das,
S. Das & J.N. Choudhury
For Respondent No.2 : M/s Pradipta Mohanty,D.N.
Mohapatra, P.K.Nayak,
J.Mohanty and S.N.Dash.
W.A. No.149 of 2010
State of Orissa and another ............ Appellants
-Versus-
Managing Committee, Chandimata
Secondary Training School, Gopinathpur
and another ............ Respondents
Mr. A.K.Mohanty, Advocate Genral &
For Appellants : Senior Standing Counsel, School and
Mass Education Department.
For Respondent No.1 : M/s G.K. Nanda, R.R.Das
For Respondent No.2 : M/s Pradipta Mohanty,D.N.
Mohapatra, P.K.Nayak,
J.Mohanty and S.N.Dash.
2
W.A. No.215 of 2010
State of Orissa and another ............ Appellant
-Versus-
Binapani Secondary Training School,
Orasaka, Bhagabatpur and others ............ Respondents
Mr. A.K.Mohanty, Advocate Genral &
For Appellants : Senior Standing Counsel, School and
Mass Education Department.
For Respondents No.1 to 11: None
For Respondent No.12 : M/s Pradipta Mohanty,D.N.
Mohapatra, P.K.Nayak,
J.Mohanty and S.N.Dash.
W.A. No.222 of 2010
State of Orissa and another ............ Appellants
-Versus-
Brahmani Secondary Training School,
Lalei, Sundargarh
and another ............ Respondents
Mr. A.K.Mohanty, Advocate Genral &
For Appellants : Senior Standing Counsel, School and
Mass Education Department.
For Respondent No.1 : None
For Respondent No.2 : M/s Pradipta Mohanty,D.N.
Mohapatra, P.K.Nayak,
J.Mohanty and S.N.Dash.
W.A. No.223 of 2010
State of Orissa and another ............ Appellants
-Versus-
Jagannath Secondary Training School,
Badakharmanga, Cuttack & others. ........... Respondents
Mr. A.K.Mohanty, Advocate Genral &
For Appellants : Senior Standing Counsel, School and
Mass Education Department.
3
For Respondents No.1 to 12: None.
For Respondent No.13 : M/s Pradipta Mohanty,D.N.
Mohapatra, P.K.Nayak,
J.Mohanty and S.N.Dash.
W.A. No.226 of 2010
State of Orissa and another ............ Appellants
-Versus-
Jagannath Secondary Training School,
Badakharmanga, Cuttack & others. ............ Respondents
Mr. A.K.Mohanty, Advocate Genral &
For Appellants : Senior Standing Counsel, School and
Mass Education Department.
For Respondents No.1 to 14: None.
For Respondent No.15 : M/s Pradipta Mohanty,D.N.
Mohapatra, P.K.Nayak,
J.Mohanty and S.N.Dash.
P R E S E N T:
THE HON'BLE CHIEF JUSTICE MR. V.GOPALA GOWDA
&
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
Date of hearing: 27.09.2010 : Date of Judgment: 29.10.2010
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I.Mahanty, J. The present writ appeal has been filed by the State Government
and other officers of the State Government, seeking to challenge the
judgment dated 25.03.2010 passed by the learned Single Judge of this
Court in W.P.(C) No.5640 of 2009 and connected writ petitions filed by the
All Orissa Private Secondary Training Schools Management Association,
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(petitioner-respondent No.1) and others. The Association in the aforesaid
writ petition had sought for a direction to the opposite parties therein, to
allow the students of the member-institutions of the petitioner-association,
who have completed their Certified Teachers Course (in short, ‘the C.T.
Course’) in the sessions 1989-90, 1990-91 and 1991-92 to appear in the
C.T. Examination, 2009 to be conducted by the Board of Secondary
Education, Orissa, Cuttack.
2. This writ petition came to be allowed by the learned Single
Judge vide order dated 25.03.2010, inter alia, by passing the following
directions:-
” This Court, therefore, while setting aside the orders
passed by the Principal Secretary declining to entertain
the claim of the member – institutions, disposes of the
writ petition directing the Principal Secretary, School and
Mass Education Departments to reconsider the reports of
the Collectors which were called for and keeping in view
the fact that previously the Government, as a matter of
policy, decided to grant an opportunity to the students of
the unrecognized Private Secondary Training Schools to
appear in the C.T. examination on one time basis on two
occasions and once pursuant to the orders passed by this
Court in OJC No.5629 of 1991, it is felt appropriate that
the Principal Secretary on reconsidering the report of the
Collector, which were given pursuant to the orders of this
Court, by the Collectors, at the first instance or
subsequently, where the Collectors have given favourable
reports with regard to infrastructure and staff and the
attendance of the students, shall allow such students till
the session 1991-92 to appear the C.T. examination to be
conducted by the Board of Secondary Education, Orissa.
The Board of Secondary Education upon being
communicated shall allow such students of the
petitioner-institution of 1989-90, 1990-91 and 1991-92
to appear in the C.T. Examination, which should be
conducted once for all latest by the end of 2010.”
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3. Mr. A.K.Mohanty, learned Advocate General appearing for the
appellants raised the following grounds of challenge:-
i) The students of the institutions run by the Respondent
Association are not eligible to appear in the C.T. Examination since the
institutions in which they purportedly studied were opened without
obtaining any opening permission from the concerned authority as required
under the Orissa Education Act, 1969 nor were the institutions ever granted
recognition by the State Government nor Board. Therefore, it is asserted
that the students of the institutions which have not been permitted nor
granted recognition cannot be permitted to appear in any examination
conducted by the Board.
ii) Section 7-E of the Orissa Education (Amendment) Act,
1989 prohibits establishment and recognition of certain institutions, which
reads thus:
“Section-7E:Notwithstanding anything to the contrary
contained in this Act, on and after the commencement of
Orissa Education (Amendment) Act, 1989 the State
Government shall not accord permission for
establishment of any Private Secondary Training School
or Private Training College or recognize any such school
or college established, if any, prior to the said date.”
iii) Section 7-F of Orissa Education (Amendment) Act, 1989
stipulates that “Government is not bound to accord permission for
establishment of or reorganize certain training schools and colleges claiming
to have been established, prior to 14.8.1989 when the Orissa
Education(Amendment) Act, 1989 came into force.
“Section 7-F: Notwithstanding anything contained in this
Act or the rules made there under or in any Judgment,
6decree or order of any Court the State Government shall
not be bound to accord permission for establishment of
any Private Secondary Training School or Private Training
College, or recognize any school or college established, if
any, prior to the 14th day of August, 1989 and non-
recognition of such school or college shall not be
questioned in any Court of Law or otherwise be opened to
challenge.”
iv) The Chapter IX of Board of Secondary Education
Regulation Act, 1955 stipulates that, no school, which is not recognized by
the Board shall be permitted to present candidates for any examination
conducted by the Board and in the present case, since it is an admitted fact
that, the respondents school is not recognized by the Board of Secondary
Education, accordingly these institutions are not competent to present any
students in the C.T. Examination conducted by the Board of Secondary
Education Orissa.
v) The judgment of the learned Single Judge impugned
hereinabove is contrary to the ratio decided in the case of Managing
Committee, Swarnachuda Secondary Training School and 39 others, v.
State of Orissa and others, reported in 77 (1994) CLT 459.
4. Mr. J.Pattnaik, learned Senior Advocate appearing for some of
the respondents in the aforesaid batch of cases, raised a preliminary
objection to the maintainability of the present writ appeal. He further
submitted that in an earlier W.P.(C) No. 10372 of 2008 orders were passed
therein on 24.9.2008, which was modified on 12.12.2008, directing the
State Government to verify the infrastructure facilities of the members of the
petitioner-association and to ascertain as to whether the students had
completed their course in those schools. It was further directed that, if on
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enquiry, findings therein are in the affirmative, the Government may
consider allowing such students to appear in future examination in the C.T.
course and while considering these aspects, the Government should also
take into account as to whether any prior approval or affiliation was
necessary of any University or Board for imparting such course.
4.1 Thereafter in Misc. Case No. 6989 of 2009 the learned Single
Judge vide order dated 3.8.2009 had directed the Board of Secondary
Education Department, Orissa to accept the submission of forms along with
the required examination fee and to permit the students to appear in the
C.T. Examination, 2009 which was scheduled to be held on 8.9.2009, but
their results were directed not to be declared without leave of this Court.
4.2 A writ appeal was filed by the State Government against the
aforesaid direction i.e., Writ Appeal No. 146 of 2009 in which orders were
passed limiting the holding of examinations only the “regular students of
Government Secondary Training Schools” and in so far as students of
Private Secondary Training Schools (Members of the Respondent No.1
Association were concerned), the learned Division Bench vide order dated
3.2.2009 quashed aforesaid directions and instead held that the rights of
such students of unrecognized private institutions would be decided in
course of the final decision in the writ application which were then pending
before the learned Single Judge.
4.3 The learned Single Judge finally decided after hearing the
parties and delivered its judgment on 25.3.2010 in W.P. (C) No. 5640 of
2009, which is the subject matter of challenge in the present writ appeal. In
8
view of the aforesaid facts, Mr. J.Pattnaik, learned Senior Advocate
submitted that by dismissal of the Writ Appeal No. 146 of 2009, the
judgment passed by the learned Single Judge in W.P. (C) No. 10372 of
2008 as confirmed and since the State Government had failed to implement
the decision passed by the learned Single Judge, even though, the State
claimed to have implemented the same and had carried out necessary
enquiry, but had rejected the claim made by the members of the
Respondent No.1 Association on different ground. It is submitted that the
State Government was bound by the dismissal of its earlier writ appeal and
therefore a subsequent writ appeal should not be entertained.
5. Mr. Routray, Mr. J.K.Rath, learned Senior Advocates and
Mr. K.K.Swain, learned counsel for the respondents submitted that, the
ratio of the Swarnachuda’s case(supra) is that, the Secondary Training
Schools having no infrastructure and ill-equipped institutions cannot be
permitted to present their candidates in the C.T. Examination. It is asserted
that in W.P. (C) No. 5604 of 2009 decided by the learned Single Judge and
the dismissal of State’s challenge in Writ Appeal No. 146 of 2009, affirmed
the directions issued by the learned Single Judge to make enquiry regarding
infrastructure of the schools and as to whether the students have
prosecuted their studies in the schools or not, and further as to whether
prior permission was necessary by the Board for presentation of such
candidates to appear at the C.T. Examination. All the learned counsel
asserted that since the reports of the inquiry at the behest of the State were
9
in the affirmative, there was no justification for rejecting the prayer of the
respondents seeking permission to appear at the ensuring C.T. examination.
6. It was further submitted that since no prior permission was
necessary for private candidates to appear at the C.T. Examination and
therefore, it cannot be said that the direction of the learned Single Judge to
permit the students of the respondent association to appear at the C.T.
Examination as private candidates was contrary to the ratio laid in
Swarnachuda’s case. It is asserted therefore that, the direction of the
learned Single Judge passed in W.P.(C) No. 10372 of 2008, which was
upheld by the Division Bench in the writ appeal and the subsequent order
passed in W.P.(C) No. 5640 of 2009 which is the subject matter of the
present writ appeal, is in the nature of implementation of an earlier order
passed in W.P.(C) No. 10372 of 2008 and therefore it cannot be said to be
contrary to the ratio in Swarnachuda’s case in any manner, as the learned
Single Judge took into consideration Swarnachuda’s case and after
considering the implication of the said judgment directed for enquiry with
regard to infrastructure, prosecution of study by the students and also as to
whether any recognition by the Board, for such candidates to appear in the
C.T. examination was at all necessary.
7. It is further submitted on behalf of the respondents that the
Orissa Secondary Education Act, 1953 under which the Board’s Regulation
has been framed i.e., Regulation-6 of Chapter 10-D stipulates, the eligibility
criteria only for private candidates of “recognized” Secondary Training
Schools to appear at the C.T. Examination. It is asserted that the said
10
provision does not state anything about eligibility of the private candidates
of “unrecognized” Secondary Training Schools. Reliance was also placed on
Article 437 of the Orissa Education Code, which is quoted below for the
purpose of asserting that candidates of “unrecognized” Secondary Training
Schools can also be permitted to appear at the C.T. Examination.
“437. Schools under Private Management:-
School under private Management may
recognize by the Director, Secondary Training Schools
and may be permitted to send of students to the
Teachers Certificate Examination.”
8. In this respect the learned Advocate General submitted that
though Writ Appeal No. 146 of 2009 had been dismissed on the ground of
delay, the directions, issued in W.P.(C) No. 10372 of 2008 was limited to,
directing the Secretary, Board of Secondary Education to undertake an
enquiry. The Secretary, Education complied with such directions and on
conclusion of such enquiry, rejected the prayer of the petitioners to be
permitted to appear in the C.T. Examination, since their institutions were
neither permitted nor recognized by the State nor the Board. The directions
issued by the learned Single Judge, vide judgment dated
24.9.2008/12.12.2008 in W.P.(C) No.10372 of 2008, was not only limited to
an obligation to conduct an enquiry, but was also to “take into account as to
whether any prior approval or affiliation was necessary of any University or
Board for imparting such course”. In compliance of the aforesaid direction
though enquiry as directed was duly conducted, the State authorities,
rejected the respondents prayer since it was concluded the Respondent-
11
institutions were neither permitted nor recognized as required under the
Orissa Education Act and Rules thereunder. Therefore, the Respondent
Association filed W.P.(C) No. 5640 of 2009, which came to be allowed vide
order dated 25.3.2010 and hence, the present writ appeal filed by the State
was maintainable, irrespective of the fact that the State’s earlier Writ Appeal
No. 146 of 2009 had been dismissed.
9. Mr. A.K.Mohanty, learned Advocate General placed reliance on
a press note dated 11.05.1990, issued by the State Government in the
Education Department which had permitted the students of unrecognized
C.T. training institutions which had taken admission in 1988-89 or prior
thereto and whose students had completed two years of study to appear at
the 1990 C.T. examination, as “private candidates” and other stipulations
contained therein and it was also declared therein that, this opportunity
was the “last chance” and that no further opportunity would be granted
either to unrecognized private institutions or their students. Mr. Mohanty,
further submitted that although a number of various writ applications had
been filed against the aforesaid decision of the State Government, since the
C.T. examination could not be held on the date as scheduled, this Court in
various writ petitions held the cut-off date of 31.05.1990 as contained in the
Press Note dated 11.05.1990, for making application to be unsustainable
and extended the last date of application till 21.9.1991. While extending the
period for application, the High Court, at the said time uphold the decision
of the State Government dated 11.5.1990, that it would be the “LAST
CHANCE” for private unrecognized institutions and students thereof to
12
apply for the C.T. Examinations. Accordingly, learned Advocate General for
the State submitted that, the C.T. examination for the year 1990 was
ultimately held on 26.11.1991 and neither the member institutions of the
Respondent Association nor their students made necessary applications
within the time stipulated.
9.1 Thereafter on 11.3.1992 a resolution was passed in the Orissa
Legislative Assembly to the following effect:-
“That the House unanimously resolves that no body will
be allowed to appear at the C.T. examination excepting the
students of Government C.T. schools. Government will also
take appropriate steps to deal with such fake C.T. schools
including their illegal acquisition of huge assets.”
10. Thus, the decision of the State Government dated 11.05.1990
directing holding of the last examination in 1990 and the Resolution of the
Orissa Legislative Assembly, noted hereinabove came to be challenged by a
number of institutions, inter alia, on the ground that, the decision of the
Government not to hold further examination was unwarranted, particularly
when the record of the petitioners institutions were being verified to find out
whether the institutions were genuine or not as well as the genuineness of
the students and the denial to hold further examination had affected a large
number of students. Their further grievance was that restricting further
opportunity to appear in subsequent C.T. examination only to those
students who had appeared and failed in 1991 C.T. examination was illegal.
10.1 This contention of the petitioners was out rightly rejected by
this Court in the case of Managing Committee, Swarnachuda (supra), by
coming to hold as follows:-
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“On 11.5.1990 the State, as indicated above,
decided to have Special C.T. Examination in the year
1990’once for all’. In January, 1991, that is 28.1.1991
to be precise, the State took a decision to allow only
such students who had operated as private candidates
and had failed. On 2.4.1991 a notification was issued
extending the date of examination. On 1.5.1991 there
was again postponement of the examination. In between
the legality of the Government Order dated 28.1.1991
was assailed in this Court and it was held that those
un-recognized schools which had fulfilled the conditions
laid down in both the Government Orders were eligible
to send their students. On 17.5.1991 the Director of
Secondary Education wrote to the State Government
that according to G.O. dated 11.5.1990, 67 un-
recognized S.T. Schools had applied on or before
31.5.1990. This cut-off date was challenged in this
Court. It was held that there was no justification for
fixing up the date. The last date for filling up the forms
was 16.9.1991 and 21.9.1991 was the last date for
submission of forms with fine. The date of examination
which was originally posted to 30.10.1991 was
adjourned to 26.11.1991. There was, therefore, enough
notice to the institutions about the Government decision
of giving one chance to the students. The process
started in the year 1990 and the examination
commenced from 26.11.1991. Except in one case, i.e.,
Olavar S.T.School, petitioner in O.J.C. No. 7305 of 1992
in all other cases institutions moved this Court for the
first time either on 26.9.1991 or subsequent there to. It
is hard to believe that an institutions set up for
imparting teaching and preparing students to take the
examination would lie in deep slumber and not even
take steps for filling up forms of the students and/or to
take no effective steps in that regard. A feeble plea has
been taken that applications were filed before the
Director or the Inspector of Schools as the case may be.
That is hardly of any consequence. The institutions were
aware that there was only one chance which was being
granted to the institutions to present their students.
Effective steps were not taken. No explanation
whatsoever has been offered for the inaction. That goes
a long way to prove about the non-genuineness of the
institutions and the students. It is unbelievable that the
students whose careers are at stake would remain
dormant and act as silent spectators. We, therefore, find
no scope for interference in these writ applications.”
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10.2 Mr. A.K.Mohanty, learned Advocate General concluded by
stating that in Swarnachuda’s case, a Division Bench of this Court did not
even permit entertaining applications beyond the last date fixed by the
Court on 21.9.1991, therefore, no question of entertaining similar
applications after a period of 17/18 years from the date of the said
judgment should at all arise.
11. In the light of the contentions raised by the learned
counsel for the respective parties as noted hereinabove, it becomes
essential to note certain undisputed facts:
(i) The member institution of the Respondents
Association are admittedly all institutions who have
not been recognized by the State of Orissa in the
Department of Education.
(ii) The Respondents Association claim their
institutions were all established prior to 1989 i.e.,
prior to coming into force the Section 7-E and
Section 7-F of the Orissa Education Act, 1969 but
have never been accorded permission for
establishment of the institution.
(iii) The learned Single Judge has directed the students
who have joined various private unrecognized
institutions in the year 1989-90, 1990-91, 1991-92,
i.e., for a period beyond those covered by the Press
Note dated 11.05.1990.
(iv) In W.P.C. No.1037 of 2008 judgment dated
24.9.2008 was modified on 12.12.2008 although
directions had been issued by the learned Single
Judge to conduct an enquiry, at the same time, the
State Government had been also directed to take
15
into account “as to whether any prior approval or
affiliation was necessary.”
(v) State Government decision published in Press Note
dated 11.5.1990 granting "last chance" to
institutions/students of unrecognized private C.T.
Schools was known to all private unrecognized
institutions and their students.
(vi) The Orissa Legislative Assembly on 11.3.1992 had
resolved that, nobody will be allowed to appear at
future C.T. Examination excepting the students of
Government C.T. Schools in future.
11.1 In the light of the aforesaid facts that emanate from the
pleadings of the parties and which remain uncontroverted, the main issue
for consideration that arises in the present case is, as to whether students
of unrecognized private institutions who claim to have prosecuted their
studies for C.T. Examination ought to be permitted to appear in the C.T.
Examination of 2010 as directed in the impugned order.
12. Now it becomes necessary to deal with the contentions
advanced by the learned counsel for the respondents:
(a) In so far as the objection of maintainability is concerned,
on the ground that and earlier Writ Appeal No. 146 of 2009 filed by the
State Government had been dismissed and therefore the present writ appeal
was not maintainable, deserves to be rejected. It is clear from the pleadings
of the parties that an earlier Writ Appeal No. 146 of 2009 has been filed
seeking to challenge the judgment rendered by the learned Single Judge in
W.P.(C) No. 10372 of 2008. In the aforesaid writ petition, the learned Single
Judge had not only directed enquiry into the infrastructure and the
16
genuineness of the students, at the same time, the learned Single Judge
had also directed the State Government, to take a decision on the issue as
to whether the Member Institution of the Respondent Association required
approval and/or recognition from the State as well as the Board. Therefore,
as consequence of the aforesaid direction although enquiry was carried out
the State Government took a fresh decision that, the Members Institution of
the respondent association could not be permitted to present their
candidates in future C.T. examination, since the said institutions were
neither permitted to be established nor recognized by the State or Board.
This gave rise to a fresh cause of action, for which reason the Respondent
Association once again filed W.P. (C) No. 5640 of 2010. This petition came to
be disposed of by judgment dated 25.3.2010 and is the subject matter of the
present appeal and, therefore, clearly maintainable in law. Therefore, the
objection raised on the issue of maintainability of the present writ appeal
stands rejected.
(b) The further contention raised by the respondent that the
enquiry carried out by the State Government, pursuant to the direction
issued in W.P.(C) No. 10372 of 2008, clearly establishes the “bonafide of the
Member institutions of the respondent association” as well as their students
and therefore the State ought not to have rejected the prayer of the
respondent association to permit the students to appear at the ensuing C.T.
examination for the year 2010. This objection of the respondent also
deserves to be rejected.
17
In the case of Swarnachuda (supra) similar plea on behalf of the
petitioners therein had been negatived by the Hon’ble Division Bench,
upholding the decision of the State Government dated 11.5.1990 (Press
Note) that the said opportunity was the “last chance” for the students for
un-recognized private C.T. colleges to appear in 1990 C.T. examination and
it had been made clear therein that, no further opportunity would be
granted and that the institutions should undertake not to admit any
students in future. This decision of the State Government has been up-held
in Swarnachuda’s case and the Hon’ble Division Bench has observed that,
no further opportunity could be afforded to such students who while being
fully aware of the decision of the State Government purportedly claim to
have continued their studies. Apart from that the Court came to conclude
that the unrecognized private schools as well as their students were fully
aware of the aforesaid decision and therefore, prayer of the petitioners
based on the existence of infrastructure and genuineness of the students
cannot be accepted as the basis for granting relief to the respondents.
(c) A further contention of the respondents is that, Article
437 of the Orissa Education Code athorises the students of the C.T. schools
under the private management to appear as private candidates at the C.T.
examination. Article 437 of the Orissa Education Code, specifically applies
only to schools under private management which have been “recognized” by
the Director, Secondary Training Schools. In the present case admittedly the
member institutions of the respondent association have not been recognized
either by the State Government or by the Director, Secondary Training
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Schools. Therefore the question of permitting such students under the guise
of Article 437 of the Orissa Education Code does not arise.
(d) The further contention of the respondent and in
particular the “intervenor” (the students of the opposite party respondent
member institution) for being shown sympathetic consideration since they
had concluded their education years ago and are not being permitted to
appear at the C.T. examination has also no merit and has to be rejected. It
is well settled by a series of judgments of the Hon’ble Supreme Court, in the
case of State of Maharashtra v. Vikas Sahebrao Roundale and others,
(1992) 4 SCC 435, where the Supreme Court 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 since it would lead to “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 CBSC, 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
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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.
It was also further well settled by the Hon’ble Supreme Court
in the case of A.P.Christians Medical Education Socieity v.Government
of Andhra Pradesh ( 1986) 2 SCC 667, where it has been 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 any thing
more destructive of the rule of law than a direction by the court
to disobey the laws.”
In view of the aforesaid decisions of the Hon’ble Supreme Court
this Court cannot entertain this contention of the intervenor and therefore
the same stands rejected.
13. On perusal of the impugned judgment passed by the learned
Single Judge it would be clear therefrom that the learned Single Judge did
take note of the judgment in Swarnachuda’s case but failed to discuss the
same and held the same to be inapplicable merely by observing as follows in
para-8:-
“Much water has flown in between, from the date
of the said judgment of this Court in the case of
Managing Committee Swarnachuda Secondary
Training School and 39 others (supra) and the
position as on today. xx xx”
14. It is important to note herein that no other reason or ground is
noted in the impugned judgment to try and distinguish the present case
20
with the fact situation that arose for consideration in Swarnachuda case
(supra).
15. We are of the considered view that, the learned Single Judge
has failed to take into consideration the “ratio decidendi” of the judgment
rendered by the Division Bench of this Court in Swarnachuda’s case
(supra). We are afraid that the facts of a case by themselves do not by
themselves become the “ratio decidendi” of the case. No doubt, the Hon’ble
Division Bench in the aforesaid judgment did refer to in adequate
infrastructure and deficient teaching taking place in various schools, but
this observation by itself does not form the ratio decidendi of the case. In
our considered view, the conclusion of the Court was that, all private
unrecognized institutions and their students had adequate notice of the
Government decision published on 11.5.1990 giving one “last chance” to the
students/institutions and the process had began in the year 1990 and the
examinations were ultimately held on 26.11.1991. Moving the Court
thereafter was not permissible, since the Court held that, it was hard to
believe that an institution set up for imparting teaching and preparing
students to take the examination would lie in deep slumber and not even
take steps for filling up forms of the students and/or to take no effective
steps in that regard. The institutions were aware that there was only one
chance which had been granted to the institutions to present their students
and effective steps were not taken. No explanation whatsoever has been
offered for the inaction. This goes a long way to prove about the non-
genuineness of the institution and the students. It is unbelievable that the
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students whose careers are at stake would remain dormant and act as
silent spectators.
16. From the above it is clear that the “ratio decidendi” of the
aforesaid case is that, since the institutions and the students had not
availed the “last chance”, offered to them by the State Government, within
the period as stipulated, no further opportunity could be afforded to such
students, since granting such an opportunity would amount to once again
granting another “God-sent” opportunity for the members of the respondent
association to manipulate records to show that they had trained a large
number of students in the past years, which was deprecated by this Court
in Swarnachuda (supra). This, in our considered view is the ratio decidendi
of Swarnachuda (supra) a judgment delivered by a Division Bench of this
Court, which was binding on the learned Single Judge.
17. It is well settled by decision rendered by a Bench of the Hon’ble
Supreme Court consisting of 11 Judges presided by Hon’ble
Mr. M.Hidayatullah, Chief Justice of India (as his Lordship then was) in the
case of H.H.Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur
and others v. Union of India , reported in AIR 1971 SC 530 in particular
para-138 it has been observed that:-
“xx xx. It is difficult to regard a word, a clause or a
sentence occurring in a judgment of this Court, divorced
from its context, as containing a full exposition of the law
on a question when the question did not even fall to be
answered in hat judgment.”
The aforesaid decision has been referred to and cited in various
later judgments including in the case of Commissioner of Income Tax v.
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M/s. Sun Engineering Works (P) Ltd., AIR 1993 SC 43 in which, it is
stated that the ratio decidendi is the principle underlying the decision and a
word or sentence in a judgment cannot be held to be a law as declared.
18. We are further to note that, it is well settled principle of law that
a judgment of the Division Bench of the High court is binding on a learned
Single Judge. It has been settled by the Hon’ble Supreme Court in the case
of Food Corporation of India & another v. Yadav Engineer & contractor,
reported in AIR 1982 SC 1302, that “the Judicial Unity demands that a
binding decision to which attention was drawn should neither be ignore nor
overlooked.” Further in the case of Jai Kaur & others v. Sher Singh &
others, AIR 1960 SC 1118, particularly in para- 10, which reads thus:-
” One would have thought that after the
pronouncement by a Full Bench off the High Court, the
controversy would have been set at rest for at least the
Punjab Courts, Surprisingly, however, only a few years
after the above pronouncement, the question was raised
again before a Division Bench of the East Punjab High
court in Mohinder Singh v. Kehr Singh. The learned
Judges then choose to consider the matter afresh and in
fact disregarded the pronouncement of the Full Bench, in
a manner, which can only be said to be unceremonious.”
19. In view of the law enunciated by the Hon’ble Supreme Court
and the effect of a binding precedent, in the facts of the preset case, we are
of the considered view that although the learned Single Judge has resulted
the judgment of the Division Bench rendered in the case of Swarnachuda
(supra), yet the “ratio decidendi” therein has been clearly ignored. The
issues raised in the present appeal have already been settled by a Division
Bench of this Court more than 17 years ago. The learned Single Judge
chose to consider the matter afresh and in fact, clearly disregarded the
pronouncement of Division Bench in the case of Swarnachuda (supra) in a
manner which can only be said to be unceremonious.
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20. Accordingly, we allow the writ appeals, consequently hold the
judgment of the learned Single Judge is not legal and set aside the same
and further direct dismissal of the writ petitions, but in the circumstances
without costs.
……………………
I.Mahanty, J.
V. Gopala Gowda,C.J. I agree.
........................
Chief Justice
ORISSA HIGH COURT, CUTTACK
29th October, 2010 /AKD
