IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.317 of 2011 Ram Shrestha Bhagat, Son of late Ram Bilash Bhagat, R/O Village-Parsa Malind, P.S.-Sonbarsa, District- Sitamarhi, presently working as Principal, M.K.College, Bhutahi, Sitamarhi …………Petitioner Versus 1. The State Of Bihar. 2. The Bihar School Examination Board, Patna through its Chairman, namely Sri Awadh Kishore Prasad Yadav, S/o name not known to the petitioner. 3. The Secretary, Bihar School Examination Board, Budh Marg, Patna, namely Sri Anup Kumar Sinha, S/o name not known to the petitioner. ………Opp. Parties. with CWJC No.2256 of 2011 Ram Shrestha Bhagat Son of late Ram Bilash Bhagat, R/O Village-Parsa Malind, P.S.-Sonbarsa, District- Sitamarhi, presently working as Principal M.K.College, Bhutahi, Sitamarhi. …………Petitioner Versus 1. The State Of Bihar through the Principal Secretary, H.R.D. Deptt., Govt. of Bihar, Patna 2. The Chairman, Bihar School Examination Board, Budh Marg, Patna. 3. The Secretary, Bihar School Examination Board, Patna. 4. The Deputy Secretary (College Establishment), Bihar School Examination Board (Higher Secondary) Bihar, Patna. 5. The Director (Educational), Bihar School Examination Board (Higher Secondary), Budh Marg, Patna. ……………Respondents. with C. REV. No.58 of 2011 1. The Chairman, Bihar School Examination Board, Budh Marg, Patna. 2. The Secretary, Bihar School Examination Board, Budh Marg, Patna. 3. The Deputy Secretary (College Establishment), Bihar School Examination Board (Higher Secondary) Bihar, Patna. 4. The Director (Educational), Bihar School Examination Board (Higher Secondary), Budh Marg, Patna. ……………Petitioners/Respondents. Versus 1. Ram Shrestha Bhagat Son of late Ram Bilash Bhagat, R/O Village-Parsa Malind, P.S.-Sonbarsa, District-Sitamarhi, presently working as Principal M.K.College, Bhutahi, Sitamarhi. 2. The State of Bihar. ………………Respondents. with MJC No.1108 of 2011 Ram Shrestha Bhagat, Son of late Ram Bilash Bhagat, R/O Village-Parsa Malind, P.S.-Sonbarsa, District- Sitamarhi, presently working as Principal M.K.College, Bhutahi, Sitamarhi ……………Petitioner Versus 1. The State Of Bihar. 2 2. The Bihar School Examination Board, Patna through its Chairman, namely Sri Awadh Kishore Prasad Yadav, S/o name not known to the petitioner. 3. The Secretary, Bihar School Examination Board, Budh Marg, Patna, namely Sri Anup Kumar Sinha, S/o name not known to the petitioner. ……………Opp. Parties. ----------- For the Petitioner : M/s Mithilesh Kumar Rai and Arun Kumar Singh, Adv. For B.S.Exam.Board : M/s Arshad Alam, Adv. P R E S E N T HON’BLE MR.JUSTICE JAYANANDAN SINGH Jayanandan Singh,J. : All these four cases, although of different nature, have been taken up together for being disposed of by a common order as all of them are essentially interlinked and arise out of an earlier order dated 10.12.2010 passed by this Court in C.W.J.C.No.18773 of 2010. 2. In fact, the present round of litigation in this Court started when the petitioner, claiming himself to be Principal of M.K.College, Bhutahi, Sitamarhi, filed C.W.J.C.No.18773 of 2010 in this Court on 15th November, 2010. In the writ application, he challenged a communication from the Board, contained in letter no.1902/D/10 dated 27.9.2010, by which, request of the College, made by letter no. 65/10 dated 30.7.2010, for permission to start three sections of Arts faculty, with 128 students each, for session 2009- 11, was rejected. 3. Case of the petitioner was that by Office Order of the Board contained in Memo No.341 dated 23.6.2009 altogether 111 Colleges were allowed extension of seats for the Session 2008-10, with 3 permission to start extra sections in concerned faculties. By this order petitioner‟s College was also allowed one extra section of Arts faculty for the said Session 2008-10. It was contended that thereafter Board had issued a press communiqué on 24.7.2009 (Annexure-10) inviting applications by 7.8.2009 for permission for increase of seat in +2 class for session 2009-11. Accordingly, petitioner submitted an application with the Board for extension of seats for 2009-11 Session. In the meanwhile, the students of additional section for Sessions 2008-10 had appeared in the 11th Examination. Hence, petitioner forwarded their result to the Board. It was asserted that, for the purpose of extension of one more section for Sessions 2009-11, petitioner had submitted request in the requisite form and with all requisite information and particulars. Grievance of the petitioner was that, by impugned communication dated 27.9.2010, Board had rejected the application of the petitioner for grant of permission for three more sections for session 2009-11 in one line, without disclosing the reasons or without disclosing the shortfalls in the information submitted by the petitioner for the purpose in the prescribed format. 4. When the case was taken up on 10.12.2010, upon being called upon, learned counsel for the Board made following submissions before this Court:- “Mr.Alam, learned counsel appearing for 4 the Board submits that so far one Section of 128 students are concerned, College already stands permitted by the said Newspaper notice, as contained in Annexure-10. For opening of further two Sections of 128 students each, the College management should contact the Board and furnish further informations to the Board as may be required to enable it to consider the request for permission for opening two more Sections of Arts faculty.” 5. In the circumstances, this Court disposed of the writ application with liberty to the petitioner or the Secretary of the Managing Committee of the College to approach the Board, whereupon the Board was directed to inform him about the deficiency in the infrastructure of the College which may be coming in its way in getting permission for opening two more sections, which the College could remove within two weeks to enable the Board to consider the request. However, in view of the stand of the learned counsel for the parties, this Court directed the Board to issue necessary permission and certificate to the College in respect of one Section of 128 students for the Sessions 2009-11 immediately. The order was not complied with by the respondents. Hence, petitioner filed abovementioned contempt application, namely, MJC No.317 of 2011, in this Court on 20.1.2011, with service of copies on learned counsel for the Board on 19.1.2011. 6. Petitioner thereafter filed abovementioned writ application, namely, C.W.J.C.No.2256 of 2011 in this Court on 2.2.2011. In this writ application, petitioner prayed for cancellation of 5 the programme of the examination published in the newspapers on 10.12.2010 for Intermediate/10+2 Examination of all faculties and/or, in the alternative, for a direction to the respondents to extend the programme for the said examination till OMR proforma of the students of the petitioner‟s College is accepted by the Board in terms of the order of this Court dated 10.12.2010 passed in the said C.W.J.C.No.18773 of 2010. 7. This writ application was taken up on 10.2.2011 and, on the prayer of learned counsel for the Board, matter was adjourned for the next day, to enable him to seek instructions and file affidavit showing compliance of the earlier orders of this Court. On the next day, learned counsel for the petitioner informed the Court about filing of the said MJC No.317 of 2011. Therefore, the case was adjourned for 14.2.2011 and the said MJC application was also directed to be listed along with the writ application. Thereafter, it appears that, when the copy of the contempt application was received by the functionaries of the Board through their counsel, for the first time matter was examined by them. They came to the conclusion that the press communiqué dated 24.7.2009 did not automatically extend the permission for one section to the college for the Sessions 2009-11 also, as notice in this regard was confined only to constituent colleges, and all other colleges had to apply for the same, which was to be 6 considered on merits. They realized that this distinction was not correctly pointed out to the Court by their learned counsel. Hence, abovementioned Civil Review No.58 of 2011 was filed in this Court on 14.2.2011. In the review application, it was categorically stated that the learned counsel for the Board could not correctly construe the meaning of word „ANGIBHUT‟ used in the paper notice, and therefore, wrongly conveyed to the Court that the petitioner‟s College, which was only an affiliated college, stood permitted for one section for Sessions 2009-11. Pleadings in the review application in this respect made in paragraphs 4 and 5 are as follows :- “ 4. That unfortunately the counsel for the Board namely Mr.S.Arshad Alam also failed to construe the meaning of the word „ANGIBHUT‟ as a result he did not dispute the submission made by the counsel for the respondent-petitioner as a result it was held in the order that the Counsel for the Petitioner/ respondent Board agrees to the fact that the one section of 128 student of the respondent‟s/petitioner‟s institution stand permitted to appear in the 2011 exams. Hence it becomes clear that Annexure-10 of the writ application was misinterpreted by the Counsel for the respondent/petitioner‟s institution and unfortunately, the Counsel for the petitioner/ respondent Board did not dispute the same as a result the observation was made by the Hon‟ble Courts‟, in its order dated 10.12.10 passed in C.W.J.C.No.18773 /2010. 5. That the Hindi word „ANGIBHUT‟ means Constituent, hence the second paragraph of the Advertisement No.23/2009 dated 24.7.2009 means that only Constituent Colleges, which had been granted permission for Sessions 2008-10 will automatically be permitted to appear in the Session 2009-11 exams.” 8. Thereafter, the writ and the contempt matter 7 were taken up on 24.2.2011. As the review application had already been filed, the same was also listed on that day along with said two matters. Learned counsel for the Board prayed for one day accommodation to enable him to produce before the Court the original application along with all details submitted by the College for permission to start extra section for session 2008-10 and also its original application along with all details submitted for permission for extra section for Session 2009-11. He also drew the attention of the Court to an order of the Chairman of the Board rejecting the application of the petitioner for grant of permission for two more sections. 9. When the case was taken up on 25.2.2011, learned counsel for the Board further sought for an adjournment which was granted and the case was ordered to be listed on 1.3.2011. The three matters were thereafter taken up on 3.3.2011. Learned counsel for the petitioner pointed out that the examinations were going to commence from 8.3.2011, which was Tuesday, and 3.3.2011 being Thursday, if no interim orders were passed, 128 students of one section of the College may suffer in their career and their one year may be entirely lost. In the circumstances, this court passed interim order as recorded in the order sheet for allowing those 128 students to appear provisionally without a right being accrued to 8 them and directed that their result should not be published till further orders of this Court. Simultaneously, hearing of the three matters was concluded and orders were reserved. 10. However, in spite of said interim order, OMR forms were not issued to the College in respect of said 128 students. Hence, petitioner filed abovementioned MJC No.1108 of 2011 on 7.3.2011, with service of copies of the application on learned counsel for the Board, and mentioned the matter for its early hearing. The MJC application was accordingly listed on 8.3.2011 on which date Mr. Alam, learned counsel appearing for the Board, appeared and accepted notice on behalf of opposite party nos.2 and 3 i.e. Chairman and Secretary of the Board. This Court, finding that prima facie case of contempt was made out, initiated proceeding of contempt and directed the opposite parties to show cause for disobedience of the order dated 3.3.2011 passed in C.W.J.C.No.2256 of 2011. It appears that, in the meanwhile, on 7.3.2011 Board filed LPA against the said order dated 3.3.2011 passed in C.W.J.C.No.2256 of 2011, and some orders were passed by the Division Bench in the appeal. Therefore, when this contempt application was taken up on 15.3.2011, learned senior counsel for the Board informed this Court that orders had been passed in the said LPA and the said interim order dated 3.3.2011 of this Court had been modified. He prayed for some time 9 to produce copy of the order passed in the LPA. Accordingly, matter was adjourned for 18.3.2011. Learned senior counsel for the Board produced a copy of the order passed in the said LPA. Thereafter, order in this contempt matter was also reserved. 11. Coming to the facts of the case, as available on record, the College was granted permanent affiliation by the Bihar Intermediate Council with effect from 31.1.1989 for three sections of 128 students each for each of the three faculties (Arts, Science and Commerce). The College continued with imparting of teaching accordingly and the students were allowed to appear in the examination and their results were published by the respondents year after year. 12. Annexure-B to the counter affidavit shows that a communiqué was issued by the Council in the year 1997, in terms of the orders of this Court, announcing the prescribed sanctioned strength of students and section to different categories of affiliated and recognized Colleges. It also mentioned that such recognized colleges whose infrastructure was adequate for admission of more students could admit more students after getting approval from the Council. As per the case of the petitioner, his College had sufficient infrastructure to add further sections for imparting teaching to the students of Higher Secondary standard (+2) and hence it applied to 10 the respondent Board, which had stepped into the shoes of the Council in the meanwhile, by letter dated 29.7.2008 (Annexure-C) for increase of seats for which necessary fee for inspection etc. was deposited. In the meanwhile, an advertisement was also published in the newspapers on 26.9.2008 by the Board (Annexure-1) inviting applications from such constituent and other affiliated and recognized colleges, who were desirous of getting seats increased at the +2 level. Applications were to be submitted in the office of the Board by 30.10.2008 and it was directed that those who had already submitted applications were to resubmit the same in the prescribed proforma. 13. Petitioner‟s case is that the College submitted such application in the prescribed proforma. On receipt of the application from the petitioner‟s College, petitioner was requested by the Board, through letter dated 29.9.2008 (Annexure-D), to submit list of teaching and non- teaching employees, working on sanctioned and unsanctioned posts, their dates of joining, mode of payment with evidence, list of students of different faculties admitted in Sessions 2006-08 and up to date status of library and laboratory etc., within one week in the Board‟s office, for further action in respect of request of the College for increase of seats in Arts faculty for Session 2008-10. It appears that such information was submitted by the College. However, the 11 application of the petitioner remained pending for almost a year. Finally by letter dated 10.6.2009 (Annexure-E) petitioner was informed that in the admitted subjects/faculties period was extended for the Sessions 2008-10 under certain conditions. The conditions included that an affidavit with all details in respect of the College mentioned in the letter had to be submitted within one month, failing which period for 2009-11 would not be extended and the College would stand debarred from taking admission for session 2009-11. The students of the College, who had already been admitted, had, in the meanwhile appeared in the examination of 11th Class, and their result was declared, which was communicated by the petitioner to the Board vide Annexure-5. 14. The applications submitted by all the colleges for increase of seats for Sessions 2008- 10 were considered by the Board in the meanwhile and, by office order dated 20.6.2009 (Annexure-2), same was granted provisionally to altogether 111 colleges, with increase of seats faculty-wise, in which petitioner‟s College was allowed one section of Arts for the said session 2008-10. It was mentioned in the order that provisional increase of seats was allowed on the basis of information furnished by the colleges and if the same was found to be wrong, order of increase of seats would be cancelled with immediate effect. 15. Thereafter, for the next session i.e. 2009- 12 11, Board published another press communiqué in the newspaper on 25.7.2009 (Annexure-3), by which applications were invited from the colleges which were desirous of increase of seats for session 2009-11. In this notice, it was clarified that all colleges were required to submit their application in the prescribed proforma with required information for increase of seats in different faculties by 7.8.2009. However, it was mentioned in the notice that, such constituent colleges, which were allowed increase of seats for 2008-10 session, stood allowed increase of seats for 2009- 11 session also. However, for further increase of seats they were also required to submit applications with „No Objection‟ certificate. Accordingly, petitioner‟s College submitted application for increase of seats on 6.8.2009 (Annexure-4) in proper proforma in which request was made for increase of three sections of 128 students each in Arts faculty. This application of the petitioner for increase of seats for session 2009-11 also remained pending with the respondent for almost one year. However, in the meanwhile, next session started in the College. Accordingly, petitioner submitted an application on 26.7.2010 (Annexure-9) for increase of seats for Sessions 2010-12 also. Petitioner, in the meanwhile, also sent a reminder to the Board on 30.7.2010 for necessary permission for increase of seats for 2009-11 Session (annexure-6). Finally the Board 13 responded and in reference to said reminder of the College dated 30.7.2010 intimated the petitioner, by one line letter dated 27.9.2010 (Annexure-7), that the request of the College for increase of seats for Sessions 2009-11 has been rejected. 16. On receipt of this communication, it was informed to the Board by the College, through its letter dated 20.10.2010 (annexure-8), that the College had applied for increase of seats for session 2009-11 in time and, while the said application was pending, on the basis of increase of seats allowed for session 2008-10, admissions had already been taken by the College for the session 2009-11 as well as for session 2010-12 and students would suffer in view of refusal of the Board received now after almost one year. It was also mentioned in the letter that list of regular teaches had already been sent and the subject in which there was short of hands, teachers had been engaged on daily wage basis, list of which had not been sent. Hence, it was requested that, in the circumstances, permission be granted for increase of seats. Reminder of the said letter was again sent by the College on 26.10.2010 (Annexure-F) in which it was stated that the letter of the Board dated 27.9.2010 (Annexure-7) refusing permission was in fact received in the college on 20.10.2010. The Board did not respond to the said request made by annexures-7 and 8 and a paper notice was published on 11.11.2010 (Annexure-10) notifying 14 the date of examination of Intermediate/+2 course. 17. In the circumstances, petitioner filed earlier writ application, namely, C.W.J.C. No.18773 of 2010 which was disposed of by order dated 10.12.2010 in the light of submissions made by learned counsel for the parties, as dealt with above. On the same day, programme of examination was also published in the newspapers which showed that the theory papers were to start from 8th March, 2011. In the light of the orders of this Court passed in the earlier writ application, petitioner submitted requisite fee through bank draft on 14.12.2010 (Annexure-12) to the Board for issuance of OMR Forms to the College in respect of the students with a request to accept the same. Another application was submitted by the College on 23.12.2010 (Annexure-13) to the Board for issue of OMR Forms. The Board did not act upon the orders of this court and did not respond to the request of the petitioner. Hence, a reminder was submitted to the Chairman of the Board on 10.1.2011 (Annexure-14). Yet another reminder was submitted on 11.1.2011 (Annexure-15) to both, Chairman and the Secretary. However, they did not responded to the request and did not comply the earlier orders of this Court. Hence, petitioner filed the said MJC No.317 of 2011 on 20.1.2011 and this writ application on 2.2.2011 with service of copies thereof on learned counsel for the Board on 27.1.2011. After this present writ application was 15 filed, Chairman of the Board by a reasoned order dated 4.2.2011, as contained in Annexure-A to the counter affidavit, rejected the application of the petitioner‟s College for increase of seats, wherein it was stated that, in the press communiqué No.23/09, by which applications were invited for increase of seats for session 2009-11, only constituent colleges were allowed increase of seats for the said session automatically, on the basis of increase of seats in the earlier session for 2008-10. Affiliated colleges were not covered by the same. It was stated that in the proforma, which was required to be filled up and submitted with a request for increase of seats, it was mentioned that for increase of seats sufficient infrastructure, satisfactory arrangement and one extra teacher for each subject were essential requirements. The information submitted by the College through the proforma, and the enclosed documents, were examined and it was found that the petitioner‟s College had only one teacher of each subject, whereas one extra teacher of each subject was required for increase of seats, as indicated in the proforma itself. As the College did not fulfill these requirements, its request had already been rejected and communicated to the College by Board‟s letter dated 27.9.2010. 18. The Board has filed three counter affidavits in the case. In the first counter affidavit, it is stated that the petitioner‟s College is only 16 recognized by the Board to impart intermediate level of education to the students. It is accepted therein that, for 2008-10 session, one section of 128 students was allowed to the College on temporary basis. It is also stated that the same was allowed on the ground that the college would take up steps to upgrade its infrastructure. It has been categorically stated that the newspaper communiqué dated 24.7.2009 (Annexure-3) applied only to constituent colleges and not to affiliated or recognized colleges. Therefore, petitioner‟s College was not covered by the second paragraph of the said notice. It is stated in the counter affidavit that the order passed by this court in the earlier writ application was on the basis of misrepresentation and wrong submission made by the counsel for the petitioner. It is stated that in terms of the operative part of the earlier order, petitioner‟s College had never approached the Board and, after the order, it only applied for issue of OMR forms for students of 2009-11 session which application was considered and disposed of by the Chairman by order dated 4.2.2011 (Annexure- A). In the second affidavit of the Board, it is stated that, earlier also issue with regard to allotment of number of seats was raised before this Court by some Institutions through C.W.J.C.No.7776 of 1996. This Court while disposing of the said writ application, issued some directions and guidelines to be followed, in 17 compliance to which, Intermediate Council had issued advertisement no.26 of 1997 (Annexure-B), according to which, affiliated colleges were granted three sections for each faculty and total 384 students in each faculty were allowed to appear in the annual examination to be held by the Intermediate Council. Petitioner‟s College was also thus allowed 384 students in each faculty and fees and forms of those students have already been accepted by the Board to allow them to appear in the ensuing examination. Request of the petitioner‟s College for allowing 128 more students was not possible to be accepted as it does not fulfill necessary criteria for enhancement of seats and therefore, the same has already been rejected by the Chairman by the said order dated 4.2.2011. In the third affidavit, said application of the petitioner‟s College dated 29.7.2008 (Annexure-C), said response of the Board through letter dated 29.9.2008 (Annexure-D), said letter of the Board dated 10.6.2009 (Annexure-E) and said request of