{"id":155665,"date":"2007-09-11T00:00:00","date_gmt":"2007-09-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sunil-kumar-parimal-anr-vs-the-state-of-bihar-ors-on-11-september-2007-2"},"modified":"2017-11-25T10:55:38","modified_gmt":"2017-11-25T05:25:38","slug":"sunil-kumar-parimal-anr-vs-the-state-of-bihar-ors-on-11-september-2007-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sunil-kumar-parimal-anr-vs-the-state-of-bihar-ors-on-11-september-2007-2","title":{"rendered":"Sunil Kumar Parimal & Anr vs The State Of Bihar & Ors on 11 September, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sunil Kumar Parimal & Anr vs The State Of Bihar & Ors on 11 September, 2007<\/div>\n
Author: L S Panta<\/div>\n
Bench: H.K. Sema, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  4190 of 2007\n\nPETITIONER:\nSunil Kumar Parimal & Anr\n\nRESPONDENT:\nThe State of Bihar & Ors\n\nDATE OF JUDGMENT: 11\/09\/2007\n\nBENCH:\nH.K. Sema & Lokeshwar Singh Panta\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n[Arising out of Special Leave Petition (C) No.3145 of 2007]<\/p>\n
Lokeshwar Singh Panta, J.\n<\/p>\n
1.\tSpecial leave granted.\n<\/p>\n
2.\tThis appeal, by special leave, has been preferred by the
\nappellants against the judgment and order dated 24.01.2007
\nof a Division Bench of the High Court of Judicature at Patna
\nby which L.P.A. No. 697\/2006 filed by the appellants was
\ndismissed and thereby the order of the learned Single Judge
\ndated 12.09.2006 dismissing the C.W.J.C. No. 8091\/2006 of
\nthe appellants came to be affirmed.\n<\/p>\n
3.\tThe facts in brief giving rise to the filing of this appeal are
\nas follows:-\n<\/p>\n
\tTirhut Physical Education College, Muzaffarpur
\nrespondent No. 7 (hereinafter referred to as respondent
\nCollege) was established in the year 1938.  The State of Bihar
\nrespondent No. 1 (for short respondent-State) by
\nNotification No. 25 dated 6.11.1993 granted permission to the
\nrespondentCollege to enroll one hundred students in C.P. Ed.
\nand one hundred students in D.P. Ed. Courses for the
\nSessions 1993-94 to 1995-96.\n<\/p>\n
4.\tSunil Kumar Parimal  appellant No. 1 herein claims to
\nbe a first class post-graduate in Geography from Mithila
\nUniversity.  He was enrolled in the respondentCollege in C.P.
\nEd. Course for the academic session 1993-94.  He completed
\nhis C.P. Ed course in March, 1995.  His name was sent by the
\nrespondentCollege for appearing in the examination to be
\nconducted by the Bihar School Examination Board, Bihar,
\nPatnarespondent No. 4 (hereinafter referred to as the
\nrespondentBoard).\n<\/p>\n
5.\tShiv Shankar Royappellant No. 2 is a Graduate in
\nCommerce from Mithila University.  He took admission to the
\nD.P. Ed. course for the academic session 1995-96.  He
\ncompleted his course in March, 1996.  The name of appellant
\nNo. 2 was also sent by the respondentCollege to the
\nrespondentBoard for taking the examination.  However, no
\nexamination was conducted by the respondent-Board who is
\nentrusted the responsibility of holding the examination for the
\nsaid courses by the respondent-State.\n<\/p>\n
6.\tThe appellants and other similarly placed candidates
\nalong with the Principal of the respondent-College, made
\nseveral representations requesting the respondent-authorities
\nto take the examinations of C.P. Ed and D.P. Ed. courses for
\nthe academic sessions 1994-95 and 1995-96.  It appears that
\non 26.11.1998, the Deputy Secretary (Art, Culture and Youth
\nDepartment), Government of Bihar, wrote a letter to the
\nSecretary of respondentBoard, directing the latter to conduct
\nthe postponed examination of the students of C.P. Ed and D.P.
\nEd for the academic sessions 1994-95 and 1995-96.  It is the
\ncase of the appellants that on 18.12.1999,   the Department of
\nArt, Culture and Youth Affairs, Government of Bihar
\nforwarded the list of the students to the respondentBoard
\nwho had to appear in the examination of C.P. Ed and D.P. Ed
\nfrom respondentCollege for the sessions 1994-95 and 1995-\n<\/p>\n
96.  On 26.06.2001, the respondent-Board wrote a letter to the
\nDeputy Secretary (Art, Culture & Youth Affairs Department),
\nGovernment of Bihar, in which it was stated that the list of the
\ncandidates of two colleges, namely, respondentCollege and
\nUrs Line Women Physical Education College, Lohardugga, had
\nbeen received but the list of candidates of remaining three
\ncolleges was not received which was requested to be sent so
\nthat steps to hold the examination collectively could be taken.
\nAfter it was learnt that the respondent-Board was
\ncontemplating to hold the examination for the said courses in
\nthe month of November, 2002, the students made
\nrepresentation to the respondentState and a copy thereof was
\nforwarded to the respondent-Board requesting the authorities
\nto allow them to appear in the examination likely to be
\nconducted in November, 2002.\n<\/p>\n
7.\tIt appears that on 5.10.2002 the Deputy Secretary (Art
\nCulture and Youths Department) wrote one more letter to the
\nrespondentBoard asking the Examination Committee of the
\nBoard to conduct the examination of students of C.P. Ed and
\nD.P. Ed courses who were enrolled by the respondentCollege
\nfor sessions 1994-95 and 1995-96 along with examination of
\nstudents of Government Health and Physical Training College,
\nBihar, Rajendra Nagar, Patna.  Again on 8.10.2002, the
\nPrincipal of the respondent-College wrote a letter to the
\nSecretary of the respondent-Board bringing to his notice the
\nsad and miserable plights of the students of C.P. Ed and D.P.
\nEd. courses who were to appear in the examination for the
\nacademic sessions 1994-95 and 1995-96.  He also requested
\nthe Secretary to permit those students to appear in the
\nexamination with the students of Government Health and
\nPhysical Education College, Rajendra Nagar, Patna.  It appears
\nfrom the record that in November, 2002 the respondent-Board
\nhad conducted examinations for C.P. Ed and D.P. Ed courses
\nfor the students of Government Health and Physical Education
\nCollege, Rajendra Nagar, Patna, but it did not allow the
\nstudents of the respondentCollege to take the examination.
\nIn the year 2006, when the appellants again came to know
\nthat the respondent-Board was contemplating to conduct
\nexamination of C.P. Ed and D.P. Ed courses for the students of
\nGovernment Health and Physical Education College, Rajendra
\nNagar, Patna, and also former students of Koshi Physical
\nEducation College, Madepura, they immediately approached
\nthe Principal of the respondentCollege, who informed them
\nthat the candidates of their institution were debarred by the
\nrespondent-Board  from taking the examinations.\n<\/p>\n
8.\tThe appellants left with no other alternative remedy  but
\nto approach the High Court on 17.8.2006 by means of
\nC.W.J.C. No. 8091\/2006 seeking a writ of mandamus against
\nthe State of Biharrespondent No. 1,  Joint Secretary (Art,
\nCulture and Youth Affairs Department), Government of Bihar
\nrespondent No. 2,  Director (Art, Culture and Youth Affairs
\nDepartment), Government of Biharrespondent No. 3, Bihar
\nSchool Examination Boardrespondent No. 4, Chairman,
\nBihar School Examination Boardrespondent No. 5, Secretary,
\nBihar School  Examination Boardrespondent No. 6 and Vice
\nPrincipal, Tirhut Physical Education Collegerespondent No. 7,
\nto allow them to appear in the examination and thereafter
\npublish their result.  The appellants filed IA No. 3323\/2006
\npraying for an interim direction to the respondentState to
\nconsider their applications for the posts of Physical Training
\nTeachers during ensuing recruitment.  The learned Single
\nJudge on 19.8.2006 directed the respondent-State to consider
\nthe said request of the appellants.\n<\/p>\n
9.\tOn 12.09.2006, learned Single Judge dismissed the writ
\npetition of the appellants primarily on the ground that on and
\nwith effect from the day of enforcement of the National Council
\nfor Teacher Education Act, 1993, the respondentCollege was
\nde-recognised and as a result thereof the respondentBoard is
\nnot competent to allow the students to appear in the
\nexamination, who is pursuing or has pursued the course in a
\nnon-recognised institution.\n<\/p>\n
10.   Being aggrieved by the order of the learned Single Judge,
\nthe appellants preferred Letters Patent Appeal No. 697\/2006
\nbefore the Division Bench of the High Court.  The Division
\nBench, as stated above, dismissed the LPA on 24.01.2007.
\nHence, the appellants are before this Court by way of this
\nappeal.\n<\/p>\n
11.\tThis Court on 26.02.2007 ordered issue of notice to the
\nrespondents made returnable within two weeks.  In response
\nto the notice,  Shri Janardhan Prasad Singh, Deputy Director
\n(Youth Affairs) Department of Art, Culture and Youth Affairs,
\nGovernment of Biharrespondent No. 4 has filed counter
\naffidavit in which it is fairly admitted that the National Council
\nfor Teacher Education Act, 1993 (hereinafter referred to as the
\nNCTE Act) will not be applicable to the students who had
\ncompleted their courses before the enforcement of the Act, and
\nthe provisions of clause B of Section 16 of the NCTE Act will
\nnot apply with regard to examination of those candidates who
\nhave completed their courses from a recognized institution
\nbefore the commencement of the Act.  It is next submitted that
\nfor the purpose of conducting the timely examination for the
\ncourses of C.P. Ed and D.P. Ed, the list of students of the
\nrespondent  College for the sessions of 1994-95 and 1995-96
\nwas sent to the Secretary of respondent-Board vide letter No.
\n386 dated 18.12.1999 followed by reminder letter no. 646
\ndated 05.10.2002 with clear instructions to conduct the said
\nexamination.  It is also stated that vide letter No. 137 dated
\n24.10.2002 the Secretary to the respondentBoard informed
\nthe Department that as the said list of the candidates was not
\nverified, therefore, the examination could not be conducted
\nwithout proper verified list.   The Deputy Director in the
\ncounter affidavit has categorically stated that the Department
\nof Art, Culture and Youth Affairs is not the verifying authority.
\nThe deponent stated that the recognitions of all Physical
\nTraining Colleges have been cancelled with retrospective effect
\nvide Departments order dated 13.04.2004.\n<\/p>\n
12.\tShri Raghavendra Nath Tiwary, Law Officer in the
\nrespondentBoard has filed joint counter affidavit on behalf of
\nthe Chairman and the Secretary of the respondentBoard.
\nThe stand projected in the counter is that vide Memo No. 382
\ndated 13.4.2004, the Department of Art, Culture and Youth
\nWelfare of the respondentState has cancelled the recognition
\nof the respondentCollege and the respondent-Board will
\nconduct department examinations  including diploma in
\nPhysical Education\/Certificate in Physical Education in terms
\nof Rule 7 of the Bihar School Examination Board Rules, 1963
\non such terms and conditions, as may be laid down by the
\nState Government.  The respondent-Board has stated that the
\nappellants could not be permitted to take examination in the
\nyear 2004 because by that time the recognition of the
\nrespondentCollege was cancelled.\n<\/p>\n
13.\tIt appears from the record that on 23.07.2007, this Court
\npassed the following order:\n<\/p>\n
After hearing learned counsel for the
\nparties, it is seen that by a letter dated
\n05.10.2002 addressed to the Secretary,
\nBihar School Examination Committee,
\nPatna, the State Government has
\nrequested that the examination of
\nneglected students of C.P. Ed. and D.P.\n<\/p>\n
Ed. of Tirhut Physical Training College,
\nMuzaffarpur belonging to the Sessions
\n1994-94 to 1995-96 be conducted with
\nGovernment Health and Physical Training
\nCollege, Bihar, Rajendra Nagar, Panta.\n<\/p>\n
Mr. M.P. Jha, learned counsel appearing
\nfor the Board, shall receive a definite
\ninstruction as to what action has been
\ntaken pursuant to the aforesaid letter.\n<\/p>\n
He shall also receive a definite instruction
\nas to any impediment in holding the
\nexamination in respect of the petitioners,
\nnamely, Sunil Kumar Parimal and Shiv
\nShankar Roy.\n<\/p>\n
14.\tIn pursuance to the above said order, respondent Nos. 4
\nto 6  have filed joint additional affidavit stating therein that the
\nChairman of the respondent-Board wrote a letter No. K-137
\ndated 24.10.2002 to the Secretary to respondentState
\nrequesting him to send the verified list of students but till
\ndate, no verified list of students was sent by the Department
\nand as such, the students of the respondent-College could not
\nappear in the examination held by the respondent-Board.   It
\nis also stated that the respondent-Board before holding the
\nexamination in the year 2006, has also requested the
\nDepartment of Art, Culture and Youth, Government of Bihar,
\nto send the details of eligible colleges, but till date, no such
\ndetails of the eligible colleges have been sent by the
\nDepartment.\n<\/p>\n
15.\tThe appellants in the rejoinder affidavit filed to the
\nadditional affidavit of respondent Nos. 4 to 6, have stated that
\nthe contents of the additional affidavit filed by the respondent
\nNos. 4 to 6 are misleading and contrary to the stand of the
\nrespondentState.  They stated that in spite of repeated
\nrequests of the concerned Department of the respondent-
\nState, the respondent-Board has miserably failed to discharge
\nits function, as a result thereof, the appellants have suffered
\nfor no fault on their part.\n<\/p>\n
16.   We have heard learned counsel for the parties and
\nperused the material on record.\n<\/p>\n
17.\tIn the backdrop of the pleadings of the parties and
\ndocuments appearing on record, the undisputed facts
\nemerging therefrom are that both the appellants took their
\nadmission in C.P. Ed. and D.P. Ed. courses for the sessions
\n1994-95 and 1995-96 in the recognised respondent-College.
\nThe examinations for the said courses were to be held by the
\nrespondent-Board.  The respondent-Board has not taken any
\nsteps to discharge its obligation and responsibility of holding
\nthe examinations for the sessions 1994-95 and 1995-96.  On
\n18.12.1999, the Department of Art, Culture and Youth Affairs,
\nGovernment of Bihar, forwarded a list of the eligible students
\nwho were to appear in the examination of C.P. Ed and D.P. Ed.
\ncourses from different Colleges in the State of Bihar for the
\nacademic sessions 1994-95 and 1995-96 to the respondent
\nBoard.  The Secretary to the respondentBoard on 26.06.2001
\nwrote a letter to the Deputy Secretary, Department of Art,
\nCulture and Youth Affairs, which reads as under:-
\nYou have made the recommendation to
\nhold the examination of five colleges, out
\nof the above, list of the candidates of two
\ncolleges, namely:\n<\/p>\n
  1. Tirhut College of Physical Education,
\nMuzaffarpur<\/p>\n
2.\tUrs Line Women Physical Education
\nCollege, Lohardugga.\n<\/p>\n
List of the remaining three colleges has
\nnot been sent as yet.\n<\/p>\n
Thus, it is again requested as per the
\ndirections that send the list of the
\ncandidates of remaining three colleges be
\nsent so that steps to hold the
\nexamination collectively could be taken.<\/p>\n
18.\tIn reply to the above-said letter, the Deputy Secretary
\n(Art, Culture and Youth Affairs Department), Government of
\nBihar, vide letter No. 19\/12\/98Youth dated 5.10.2002
\nrequested the Examination Committee of the respondent-
\nBoard to conduct the examination for students of C.P. Ed. and
\nD.P. Ed. course of the respondentCollege along with the
\nexamination proposed to be held for the students of
\nGovernment Health and Physical Training College, Bihar,
\nRajendra Nagar, Patna.  The Principal of the respondent
\nCollege on 8.10.2002 also wrote a letter to the Secretary of the
\nrespondentBoard bringing to his notice the sad and miserable
\nplight of the appellants and other students of the C.P. Ed. and
\nD.P. Ed.  courses for academic sessions 1994-95 and 1995-96
\nand requested the Examination Committee of the respondent
\nBoard to conduct the examination of those students along
\nwith the examination likely to be conducted for the
\nGovernment Health and Physical Education College, Rajendra
\nNagar, Patna.  The respondent-Board in November, 2002
\nconducted the examinations for C.P. Ed. and D.P. Ed. courses
\nfor the students of Government Health and Physical Education
\nCollege, Rajendra Nagar, Patna, but it refused to admit the
\nappellants and other students to take the examinations.\n<\/p>\n
 19.\t  It appears from the record that Memo No. 1172 dated
\n31.10.2006 was sent by Shri Rama Shankar Tiwari, Secretary
\n(Art, Culture and Youth Affairs Department) to the
\nGovernment of Bihar, to the Secretary, Bihar School
\nExamination Board, which reads as under:-
\n With reference to your aforesaid subject
\nletter NO. 411 dated 26.06.2001, it is to
\nsay that the list of sent-up students of
\nC.P. Ed. and D.P.Ed. coruse of Tirhut
\nPhysical Training College, Muzaffar for
\nthe session 1994-95 to 1995-96 was sent
\nfor conducting examination vide
\ndepartmental letter-386 dated
\n18.12.2001 of whose examination has not
\nbeen conducted till date.\n<\/p>\n
Therefore, it is requested that the
\nexamination of sent-up students of C.P.\n<\/p>\n
Ed. and D.P. Ed. course of Tirhut
\nPhysical Training College, Muzaffar for
\nthe session 1994-95 to 1995-96 be
\nconducted along with State Health and
\nPhysical Training College, Rajendra
\nNagar, Bihar, Patna.<\/p>\n
20.   Despite clear and categorical instructions and repeated
\nsuggestions by the Deputy Secretary (Art, Culture and Youth
\nAffairs Department), Government of Bihar, vide letter
\nNo.19\/12\/98-Youth dated 5.10.2002 and also by the
\nSecretary of the concerned Department in terms of Memo
\nNo.1172 extracted hereinabove, the respondent-Board has
\nfailed to discharge its function and responsibility of holding
\nthe examination entrusted to it by the State Government,
\nwhich has resulted in irreparable loss to the appellants.   The
\nrespondent-Board has not given any plausible and tenable
\nexplanation for debarring the appellants from taking
\nexamination with the students of C.P. Ed. and D.P. Ed.
\ncourses of the Government Health and Physical Training
\nCollege, Bihar, Rajendra Nagar, Patna.\n<\/p>\n
 21.\tIn the above-noted peculiar facts and circumstances
\nof the case, we are of the opinion that it is a fit case where we
\nshould not hesitate to exercise our jurisdiction under Article
\n142 of the Constitution of India to do complete justice to the
\nappellants to whom palpable injustice is shown to have been
\ndone because of the sheer fault and inefficiency of the
\nrespondent-Board, who, despite repeated requests of the State
\nauthorities, did not take steps to admit the appellants to
\nappear in the examination till the respondent-College was de-
\nrecognised in terms of the provisions of the NCTE Act.  It is
\nagain unfortunate that in spite of fighting a long legal battle
\nfor vindicating their genuine and legitimate claims, the
\nappellants could not get any justice even from the court of law.
\nThus, in our considered view, the order of the learned Single
\nJudge as affirmed by the Division Bench of the High Court
\nholding that the respondent-College has since been de-
\nrecognised after the enforcement of the NCTE Act, therefore,
\nthe appellants could not be granted the permission to take
\nexamination of the C.P. Ed. and D.P. Ed. courses from the
\nunrecognized institution, is erroneous and untenable.  The
\nNCTE Act came into force with effect from 17.08.2005 and its
\nprovisions will be applicable prospectively to those students
\nwho have undertaken examination after 17.08.2005 from
\nrecognised institution.  The respondent-College has lost its
\nrecognition only with effect from 17.08.2005 when the NCTE
\nAct was enforced and before that date, the respondent-College
\nwas duly recognised institution by the State Government.
\nTherefore, the finding and reasoning of the High Court holding
\nthe appellants not eligible to appear in the examination of C.P.
\nEd. and D.P. Ed. courses from the respondent-College are not
\nbased on proper appreciation of facts of the case and
\nprinciples of law.\n<\/p>\n
 22.\tWe, in the interest of justice to the appellants, direct
\nrespondent Nos. 1 to 6 to permit the appellants to appear in
\nthe examination for the courses of C.P. Ed. and D.P. Ed. for
\nthe sessions 1994-95 and 1995-96 to be conducted by the
\nrespondent-Board on the next available opportunity in the
\nnear future and thereafter the result of the appellants shall be
\ndeclared without loss of further time.\n<\/p>\n
23.\tFor the reasons afore-stated, the impugned judgment
\nand order dated 24.01.2007 of the Division Bench of the High
\nCourt in LPA No. 697\/2006 upholding the judgment and order
\ndated 12.09.2006 of the learned Single Judge passed in
\nC.W.J.C. No. 8091\/2006 is not justified and cannot be
\nsustained in law.  It is, accordingly, set aside.  The appeal is
\nallowed accordingly.  The C.W.J.C. No. 8091\/2006 filed by the
\nappellants in the High Court of Judicature at Patna shall
\nstand allowed.  However, the parties are left to bear their own
\ncosts.\n<\/p>\n
24.   We make it clear that the observations made by us are
\nonly prima facie and tentative observations for the disposal of
\nthis appeal and the same would not be construed as an
\nexpression of opinion on the merits of any future proceedings
\nof any nature, if any, between the parties in this appeal.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sunil Kumar Parimal & Anr vs The State Of Bihar & Ors on 11 September, 2007 Author: L S Panta Bench: H.K. Sema, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 4190 of 2007 PETITIONER: Sunil Kumar Parimal & Anr RESPONDENT: The State of Bihar & Ors DATE OF JUDGMENT: 11\/09\/2007 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-155665","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSunil Kumar Parimal & Anr vs The State Of Bihar & Ors on 11 September, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sunil-kumar-parimal-anr-vs-the-state-of-bihar-ors-on-11-september-2007-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sunil Kumar Parimal & Anr vs The State Of Bihar & Ors on 11 September, 2007 - 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