IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1184 of 2009 1. SARITA OJHA, D/o Sachida Nand Ojha, resident of village Khabra, P.S. Sadar, District Muzaffarpur 2. Amrit Versa, D/o Anil Kumar, resident of Moh. Baraiya, P.S. Ahiyapur, District Muzaffarpur 3. Bibha Kumari, D/o Baidya Nath Shahi, resident of village Shabajpur, P.O. Bhikhanpur, P.S. Ahiyapur, District Muzaffarpur 4. Rubi Kumari, D/o Anil Kumar, resident of village Mano Rampur, P.S. Surajgarha, District Lakhisarai 5. Anita Kumari, D/o Ashok Kumar Singh, resident of village Balahpur, P.S. Matihani, District Begusarai 6. Seema Kumari, D/o Ram saijan Sharma, resident of village Maganpur, P.S. Goraul, District Vaishali 7. Shakuntala Goswami, D/o Ram Balak Goswami, resident of village Mahaddi Nagar, P.O. Josauli Pakri, P.S. Jasauli (O.P.), District Muzaffarpur 8. Sobha Kumari, D/o Suresh Sharma, resident of Sirnath Form, P.S. Pusa, District Samastipur … Petitioners/Appellants. Versus 1. THE STATE OF BIHAR through Principal Secretary, Human Resources Development, Department, Govt. of Bihar, Patna 2. The Dy. Secretary, youth Sports & Culture Dept., Govt. of Bihar, Patna 3. The Director, Youth Sports & Culture Dept., Govt. of Bihar, Patna 4. The Dy. Director, youth Sports & Culture Dept., Govt. of Bihar, Patna 5. The Bihar School Examination Board, through its Secretary, Bihar, Patna 6. The Secretary, Bihar School Examination Board, Patna 7. The Regional Director, N.C.T.E. (Easter Region), Bhubneshwar, Orissa … Respondents/Respondents. ----------- For the Appellants : Mr. Yogesh Chandra Verma, Sr.Adv. with Mr. Shankar Kumar, Adv. For the State : Mr. Kinkar Kumar, A.C. to G.P.21 For B.S.E.B. : Mr. S.K.Mandal, Adv. For the N.C.T.E. : Mr. S.N.Pathak, Adv. ----------- 2 PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (16.03.2010) As per Dipak Misra,C.J.- The appellants-petitioners (hereinafter referred to as „the appellants‟) have called in question the justifiability of the order dated 19.8.2009 passed by the learned Single Judge in C.W.J.C.No. 9886/2009. 2. The factual matrix as exposited is that the appellants, as pleaded, prosecuted the studies in physical training course in Kamla Nehru Women‟s Physical Education Training College, Bairia, Muzaffarpur for the academic Session 1990-1991 to 1997-1998. They knocked at the door of this Court to exercise its inherent and equitable jurisdiction to issue a writ of mandamus commanding the Bihar School Examination Board (for short „the Board‟) to conduct physical training examination for the appellants as they had completed the course in the aforementioned college. It was pleaded that the authorities of the College had earlier requested the Board and the State Government to permit the appellants to under-take the examination but the said prayer failed in deaf years for some time and eventually was declined 3 in the year 2007 on the ground that the College in question did not have recognition from the State Government beyond 2004. 3. It was contended before the learned Single Judge that as the Government and the Board sat over the matter till 18.5.2007 and when communication was sent to the College indicating its status, the petitioners thought it apposite to approach this Court. 4. The stand putforth by the appellants was combatted by the Board contending, inter alia, the students as alleged had completed the course about more than two decades and in some cases a decade back and the writ petition being filed belatedly was hit by doctrine of delay and laches. It was propounded that the appellants are taken admission beyond the in-take capacity and hence, the question of granting permission to appear in the examination was inconceivable. 5. The submissions of the Board found favour with the learned Single Judge and the ultimate result was dismissal of the writ petition. 6. Assailing the tenability of the decision of the learned Single Judge it is submitted by Mr. Yogesh 4 Chandra Verma, learned Senior counsel alongwith Mr. Shankar Kumar for the appellant that the learned Single Judge should have been well advised to appreciate the pain and plight of the students and should have granted permission to undertake the examination. It is urged by him that the College did have recognition from the National Council For Teachers Education under the provisions of N.C.T.E.Act, 1993 and as the students were not at fault concept of complete justice warranted grant of permission to undertake examination. 7. Mr. S.N.Pathak, learned counsel for N.C.T.E., per contra, submitted that the College at no point of time had applied for recognition after coming into force the provisions contained in N.C.T.E.Act, 1993 and, therefore, the privilege that the College enjoyed before coming into the Central legislation got extinguished due to non-compliance of the statutory provisions. Learned counsel also submitted that the order passed by the learned Single Judge is absolutely invulnerable as the principles of delay and laches get squarely attracted to the case at hand. 8. Mr. Sunil Kumar Mandal, learned counsel 5 for the Bihar School Examination Board and Mr. Kinkar Kumar, leaned counsel for the State placing reliance on the counter affidavit filed by the Board submitted that the College in question was not recognized under 1993 Act and it had never requested the Board to hold the examination. It is also the stand in the return that the recognition of the College in question has been rejected by the communication dated 13.4.2004, contained in Annexure „E‟ to the return. 9. Be it noted, on 19.2.2010 this Court had directed the N.C.T.E. to produce the file relating to the Institution where the appellants had prosecuted studies. In pursuance of the aforesaid order a communication has been made stating, inter alia, that no application for grant of recognition from Kamla Nehru Women Physical Teachers Training College, Bairiya, Muzaffarpur had been received in the office of N.C.T.E. and as such, no record is available. 10. The controversy that emanates for adjudication can be viewed from two spectrums, namely, whether the College which imparted the education to the students had recognition and whether the students should 6 be granted permission to appear in the examination at this distance of time. Mr. Mandal, learned counsel for the Board, has commended us to the decision rendered in L.P.A. 972/2007 (Kumari Ranjana Mishra & ors. vs. The State of Bihar & ors.), wherein a Division Bench after scanning the anatomy of the provisions of N.C.T.E.Act, 1993 and after referring to the decision rendered in the case of Sunil Kumar Parimal & anor. vs. the State of Bihar & ors., reported in 2007(4) PLJR (S.C.) 163, expressed the view as follows: “Two facts should clinch the issue, namely; (one) that in the year 2004, the recognition of the institution was cancelled and until the institution was recognized, no steps were taken by the appellants in either compelling the Board to conduct examination for physical Teachers Training Course nor was there any directive issued by the State Government asking the Board to allow the students of the concerned institution to appear in the examination and (two) that it was only after the institution had already been derecognized that the appellants sought to appear in the examination to be conducted by the Board in the year 2007, to which, obviously, they were not entitled to.” 7 11. As advised at present we are not inclined to advert to the issue whether the College had recognition at the relevant point of time or not, for the appellants had not impleaded the College as a party. True it is, on earlier occasion we had directed the N.C.T.E. to produce the records. As the N.C.T.E. has comeforward with the stand no papers are available with the N.C.T.E. we refrain from recording any finding against the College as that would prejudice the interest of the College which is not a party before us. 12. Without deciding whether the College had been recognized or not the fulcrum of the matter is as to whether at this belated stage the students, who claim to have prosecuted the physical training course from 1990-1991 to 1997-1998 can be allowed to undertake the examination and whether the Board should be commanded to hold an examination for them. It is not only perplexing but shocking that the appellants, who were prosecuting the course after graduation, would not understand that they had prosecuted the studies and are required to appear in an examination after the course is over. They cannot expect that something would fall on 8 their lap by the grace of on angel and they would be lifted to the pedestal of an examinee to undertake the examination in the year 2009 after expiry of 18 years and in some cases 11 years. The only stand that has been put forth is that they were waiting for some action to be taken by the College and they cannot be allowed to suffer for the fault of the College. What is really conceived by the appellants that the exercise of writ jurisdiction under Article 226 of the Constitution of India is panacea for all grievances and it can remedy the suffering of the students even if they are not vigilant. 13. True it is, on certain occasions the Courts have shown some sympathy towards the students but not to such students who have availed education in an educational institution which had not come to the Court, and further have waited for something to come to them automatically. In the case of State of Tamil Nadu & ors. vs. St. Joseph Teachers Training Institute & anr., reported in (1991) 3 SCC 87, a two-Judge Bench of the Apex Court has opined thus: “ The practice of admitting students by unauthorized educational institutions and then seeking permission of permitting the 9 students to appear at the examination has been looked with disfavour by this Court. In N.M. Nageshwaramma v. State of A.P., this Court observed that if permission was granted to the students of an unrecognized institution to appear at the examination, it would amount to encouraging and condoning the establishment of unauthorized institutions. The Court declared that the jurisdiction of this Court under Article 32 or of the High Court under Article 226 of the Constitution should not be frittered away for such a purpose. In A.P. Christians Medical Educational Society vs. Government of A.P. a similar request made on behalf of the institution and the students for permitting them to appear at the examination even though affiliation had not been granted was rejected by this Court. The court observed that any direction of the nature sought for permitting the students to appear at the examination without the institution being affiliated or recognized would be in clear transgression of the provision of the act and the regulations. The court cannot be a party to direct the students to disobey the statute as that would be destructive of the rule of law. The Full Bench noted these decisions and observations and yet it granted relief to the 10 students on humanitarian grounds contrary to law. Since the students of unrecognized institutions were legally not entitled to appear at the examination held by the Education Department of the Government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination. The directions issued by the Full Bench are destructive of the rule of law. Since the Division bench issued the impugned orders following the judgment of the Full Bench, the impugned orders are not sustainable in law.” 14. Be it clarified, we have noted the aforesaid citation only to highlight how the educational institutions which impart education without being armed with the statutory power have been dealt with. We may repeat at the cost of repetition that we have not commented on the status of the educational institution, the same being not a party before us but we cannot be oblivious of the fact that the students, who were graduates did not have the graduated perception of life and waited to achieve the goal after expiration of 18 years. When such a fact situation gets revealed we are 11 compelled to say an oft quoted line “Awake, Arise, O Parth”. The purpose for saying so is how long and how far the students can be allowed to conceive, nurture, foster and nourish the idea, that they can come to Court at their leisure and pleasure and after waiting for years by seeking the relief to appear in the examination and to get the result published. Life has to be seen in the terms of pragmatism and practicability. It can be stated without any kind of fear of contradiction that the appellants herein have perceived an oasis though it is really a mirage. 15. In the result, we have no other option but to dismiss the appeal without any order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court The 16th March, 2010 Surendra/