IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12726 of 2007 1.BINAM KUMARI, wife of Sri Niranjan Kumar Yadav, resident of Village-Narthua, P.O. Bhagipur, P.S. Alam Nagar, District-Madhepura. 2.Rambha Kumari, Wife of Sri Amrendra Kumar, resident of Village and P.O. Bhagipur, P.S. Alam Nagar, District-Madhepura. Versus 1.THE BIHAR SCHOOL EXAM.BOARD, Sinha Library Road, Patna through the Chairman. 2.The Chairman, Bihar School Examination Board, Sinha Library Road, Patna. 3.The Secretary, Bihar School Examination Board, Sinha Library Road, Patna. 4.The Examination Controller, Bihar School Examination Board, Sinha Library Road, Patna. 5.The Principal, Miliya Kanij Fatima Women Primary Teachers Training College, Rambag, Purnea. ----------- 7 21/8/2009 Heard counsel for the petitioners and counsel for the Bihar School Examination Board. Prayer in this writ application reads as follows : - “For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities to publish the result of Teachers Training Examination of the petitioners which was held in the year 1991 on the ground that though the result of other examinee of the said examination, who had appeared through the same institution has been declared by the Respondents in 2006 but the result of the petitioners has been arbitrarily withheld without assigning any reason?” Considering the aforesaid prayer this Court in the light of stand taken in counter affidavit of the Board had passed the following order on 4.2.2009. “As per the counter affidavit it is stated that petitioners institution was recognized but for hundred students. Petitioners roll numbers being above hundred, result of the petitioners can not be published. Petitioners assert that they were within hundred. In any view, it is for the petitioner to show that he was within first hundred students to be admitted to that course for the said batch as in student above 2 hundred was a person non-grata and can not be granted any relief.” Subsequently when a plea was taken by the petitioners that they were within the sanctioned 100 seats this Courts while issuing notice to Respondent no. 5 had passed the following order on 3.3.2009:- “Both the petitioners were allegedly the students of Miliya Kanij Fatima Women Primary Teachers Training College, Rambag, Purnea. Petitioner no. 1 was of the sessions 1985-87 and petitioner no. 2 was of the sessions 1987-89. They sat for the examination conducted by the Bihar School Examination Board in the year 1991. Petitioner no. 1 being of sessions 1985- 87, his examination Roll Code was 4221 and Roll No. was 104 and petitioner no. 2 similarly being of sessions 1987-89 his examination Roll Code was 4203 and Roll No. was 104. Today, petitioners have filed a supplementary affidavit in which they have given their college Roll numbers to be 37 and 28 respectively for their respective batches, thus pleading that they were within first 100 students to be admitted to the course and as such their results should have been declared and not merely the first 100 of the list of the Bihar School Examination Board.” The private management however did not appear despite service of notice on Respondent no. 5 and accordingly an order was passed by this Court on 24.6.2009 in the following effect:- “It appears that despite service of notice on respondent no. 5, the Principal, Miliya Kanij Fatima Women Primary Teachers Training College, Rambag, Purnea no one has appeared. List this case after two weeks at the top of the list in order to enable counsel for the Bihar School Examination Board to file a compact supplementary counter affidavit indicating therein as to how many candidates of particular batch in which petitioner appeared, were issued admit cards despite number of students being confined in the order of recognition to 100 only.” 3 When the case was placed again on 9.7.2009 the following plea of the petitioners was noted in the order of this Court:- “……….Counsel for the petitioners would submit that in order to get the result of the petitioners declared, result of at least two candidates will have to be cancelled as the institution in question was entitled to send-up only 100 students whose results have already been declared. He, therefore, seeks time to file supplementary affidavit containing list of 100 students who were admitted in the institution against the sanctioned strength of students. In that view of the matter, this Court would direct the petitioners to submit a list of 100 students, who according to them were entitled to be sent-up for examination as also the names and details of 100 candidates whose results have been declared. That would be necessary in order to avoid similar cases to be filed by some other candidates having similar grievance that they are amongst the 100 bonafide students and the result which has been declared was of the other students who were not within such 100 students. Counsel for the Bihar School Examination Board, on the other hand, would submit that an exactly similar question has already been decided by this Court by order dated 2.7.2009 in C.W.J.C. 1615 of 2007 with C.W.J.C. No.1557 of 2008.” Today the counsel for the Board has filed a supplementary counter affidavit in which the Respondents have been a stand that “ – “That with regard to the procedure in the Board regarding allotment of roll numbers to the students of various colleges in their admit card for appearing in the teachers training examination conducted by Board it is stated that Examination Forms of the examinees are submitted in the office of the Board along with consolidated statement (data-copy) duly signed by the Principal of the concerned college containing the particulars of the examinees viz their name, father’s name, college roll number, enlistment, number, etc. On the basis of that said consolidated statement of the concerned college(i) entry is made in the records of the Board and (ii) Roll Sheets are prepared as per the 4 number entered in the said consolidated statement. Thereafter as per the numbers printed in Roll Sheet roll numbers are entered in the admit cards of the examinees manually by the Board. That it continuation of the statements made in the preceding paragraph it is further submitted that the roll number of both the petitioners as per their admit cards being 104 for the session 1985-87 and session 1987-89 would go to show that both the petitioners were beyond the limit of hundred students permitted to be admitted by the college in question for a particular session. And thus petitioners apparently were admitted to the college in question beyond the permissible limit of hundred students and the same is further evident from the fact that dispute that though the Board allotted roll number 104 to both the petitioners for the aforesaid two sessions but the petitioners were infact within the permissible limit of first 100 students admitted by it or the dispute that any roll number allotted by the Board in the admit card which was within 100 but the concerned examinee had been admitted by it beyond the permissible limit of 100 has not been raised before the Board by the College in question. Thus there being no protest in this regard by the college in question also shows that the petitioners were infact admitted in the college in question for the respective sessions beyond the permissible limit of 100. At present the Board is not accepting Examination Forms beyond the said permissible limit and the present matter relates to examination held in the year 1991. That it is submitted that the college in question was never granted recognition under the National Council for Teachers’ Education Act, 1993. Further the recognition granted to it has been canceled by the State Government by order bearing memo no. 330 dated 18.11.1999. That it may be pointed out here at the cost of repetition that the result of the students of the college in question was published by the Board in compliance order dated 13.7.2005 of the Hon’ble Court passed in L.P.A. No. 641 of 2005 which was preferred by some of the examinees of 1986-88 and 1987-89 challenging the order dated 21.2.2005 passed in C.W.J.C. No. 9171 of 1999. That Hon’ble Court by the order dated 3.3.2008 has been pleased to dismiss a similar writ petition bearing C.W.J.C. No. 9066 of 2007 filed by the students for the sessions 1987-89 to 1988-90 on ground of delay and laches after nothing that the Board in its counter affidavit has stated that result of 5 only 100 examinees were prepared by it which is evident from the tabulation register.” The petitioners however have not complied the aforesaid order of this Court dated 9.7.2009 and in effect seek relief for declaration of their result without proving that they were admitted amongst the four hundred students against sanctioned intake capacity of the college. As they have not complied their own undertaking recorded in the order of this Court dated 9.7.2009, this Court must hold that their cases are covered by the judgment of this Court dated 13.7.2009 in C.W.J.C. No. 1615 of 2007 and C.W.J.C. No. 1557 of 2008, wherein this court had dismissed them by holding that :- “……….Apart from delay, which alone in the facts of this case is fatal and thus sufficient to dismiss the two writ applications, this court cannot give the relief to the petitioners for yet another and infact equally compelling reason. In this regard, as noted above, from the order dated 4.3.2009 it would be found that in this court had indicated the necessity of impleading 100 students of the institutions of the petitioners of 1987-89 batch whose results were declared in 1991 while refusing to declare the result of rest of them including the petitioners on the ground that the institution having a sanctioned strength of 100 students could not have taken admission and also allowed them to appear in the examination conducted by the Board Mr. Singh, learned Senior Counsel for the petitioners also does not dispute that in the order of recognition of institution there was a clear ban imposed on the institution that it will not admit more than 100 students and obviously could not have allowed more than 100 students in appearing in the examination. the result of those 100 students have already been declared. Today after 16 years of such publication of result if the petitioners say that they were amongst first 100 students and had been rightly admitted on the basis of college roll number 11 and 28 in the college register and therefore these two petitioners are entitled for declaration of results, result of at least two of the students already declared will have to be cancelled. It was for this reason that this Court, therefore, had found the necessity that 6 the list of 100 persons who were allegedly admitted against sanctioned seats and were rightful persons for declaration of their result should be disclosed. Counsel for the petitioner however states that the petitioners had made best of their efforts but the management has not supplied such list and therefore this court should now issue notice to the management directing it to produce the list of 100 genuinely admitted students of 1987-89 batch. Such recourse however is not permissible in law as this court cannot become a tool in the hands of private management for securing the alleged rights of the petitioners who have themselves approached this court after 16 years of declaration of result. Infact this court would find it difficult to place reliance on any such list which may now be produced by the private management, a minority institution, which despite a clear ban of not admitting 100 students in 1987-89 batch had gone to take admission beyond sanctioned intake capacity. In any event it is the petitioners who while seeking a writ of mandamus from this court have to first establish their right and cannot be permitted to take a plea that since the respondents have failed to discharge the onus of producing a document or information, the benefit thereof should be given to the petitioners. That is not the concept of discharging onus or proving of a particular fact which always lies on the plaintiff/petitioner to prove his case. Thus if the petitioners despite opportunity given to them have failed to furnish the list of those 100 students admitted against sanctioned/intake capacity in 1987-89 batch this Court would find absolutely no reason to recall/review the earlier order dated 4.3.2009. The last submission made by learned counsel for the petitioner that this court should assume that since role number of the petitioners in the college in 1987-89 batch was 11 and 28 respectively it is those two petitioners who are amongst 100 students can also not be accepted as result of 100 students having Board’s roll number 1 to 100 has already been declared in 1991 and if the case of the petitioners whose roll number in Board’s examination was 102, 103 and 109 respectively on such assumption is allowed results of some of those 100 persons will have to be cancelled. However in absence of such persons before this Court who have been not made party to these two writ petitions coupled with delay of nearly sixteen years in this regard becomes crucial as the rights of those 100 students or some of them cannot be taken away after such a long lapse of time and that too behind their back……..” 7 This court therefore must take the aforesaid same view which was taken exactly in a similar circumstance relating to a similar institution as with regard to declaration of result in respect of a institution which has limited number of seats as specifically mentioned in the order of recognition. That being so, this application is also dismissed in terms of order dated 2.7.2009 in C.W.J.C. No. 1615 of 2007 and C.W.J.C. No. 1557 of 2008. Abhay Kumar (Mihir Kumar Jha, J.)