WP(C) 6622/2010 BEFORE HON’BLE MR JUSTICE K. MERUNO Heard Mr. M.A. Sheikh, learned counsel for the petitioners, Mr. S.Chakraborty, l earned Standing counsel, Gauhati University for the respondent Nos. 2 and 3 and Mr. T. Das, learned counsel appearing for the respondent Nos. 4 and 5. 2 The pleaded case of the petitioners is that they are the student of B.A. Part-II and Part-III of the 3 years Degree Course in the Kharupetia Col lege under the Gauhati University and they have been regularly attending the cla sses, but they have not been allowed to submit their filled up forms for their r espective B.A. Part-II and Part-III examinations. The last date of submission of examination forms was 7.12.2010. The examination will be held in February, 2011 . Hence, they have approached this Court under Article 226 of the Constitution o f India praying for a direction to the respondents in general the respondent No .4- Principal, Kharupetia College to allow the petitioners to submit their respe ctive filled up examination forms for the year 2010-2011. Their prayer in the writ petition is as follows: Why a writ in the nature of Mandamus shall not be issued directing the respondents in general and Respondent No.4 in particular to allow the petitione rs to fill up and submits their respective B.A. Part-II & III examination forms for final examination for the year 2010-11 under Gauhati University to be held i n the month of February/March 2011 and to allow them to sit in the said final ex amination from Kharupetia College of the Gauhati University . 3 Counter on behalf of the respondent Nos. 4 and 5 has been fi led. In reply to the counter filed by the respondent Nos. 4 and 5, the petitione rs filed an affidavit-in-reply, wherein in Paras 3, 4 and 5, the petitioners h ave denied all the averments made in the writ petition and have also raised the issue that they are not involved in the said incident as stipulated in the count er filed by the respondent Nos 4 and 5. They also denied that their names appear ed in the FIR. The notices which is supposed to have been issued to them also n ot been received by them and also before issuance of such purported notices, no show cause notice was issued. The said resolution No.12 is completely arbitrary and unfair. The stand of the respondent Nos 4 and 5 has been elaborated in Paras 4, 5 and 6 of their counter .. It is also stated that because of the said inci dent , wherein the three petitioners are involved an emergency meeting of the Go verning Body of the Kharupetia College held on 01.11.2010. In the said meeting it was resolved to compulsorily expel the petitioners from the College by Resol ution No.12. 4 The learned counsel for the petitioners further submits that no where in the FIR the petitioners have been named . In the FIR it is stated that some students of the College have been named but the names of the present petiti oners have not been mentioned. Therefore, for such an incident committed by some students of the College, the petitioners cannot be single out and debarred fro m filling up the forms of the examination. However, no copy of the resolution N o.12 has been served upon the petitioners and , therefore, the action of the res pondents in not allowing the petitioners to fill up the forms for examination is wholly arbitrary and unjust. In the facts circumstances, the petitioners may be allowed to fill up their examination forms so that they can participate in the examination, otherwise they will loss their academic year. 5 Mr T. Das, learned counsel appearing for the respondent Nos. 4 a nd 5 has submitted that under the ’Assam Education Department Rules and Orders , the Governing Body U/s 17, Sub-section 2 to 5 has elaborately provided the Coll ege Authorities to take action as per the provisions under this Section and ther efore, the action taken by the College authorities/Governing Body is in accordan ce with the Rules and Laws and direction on the respondents are wholly illegal a nd unjustified under the law and the rules. 6 Under sub-Section 6 of Section 17 of the said Rules and Orders, provision of appeal has been provided. However, the petitioners instead of res orting to the statutory provision of appeal under sub-Section 6 of Section 17 of the aforesaid Rules and Orders have approached this Court under Article 226 of the Constitution, where alternative remedy is available, the petitioners ought to have availed the said remedy instead of Article 226 of the Constitution of In dia. 7 Mr. T. Das, learned counsel further submits that the College aut horities have issued the notices to the petitioners under Registered Post, but the petitioners have refused to accept the said notices as per endorsement of th e Postal Staff appearing on the envelope of the said notices. 8 Considering the entire facts and circumstances of the case, Mr. T. Das, learned counsel submits that the present writ petition is not maintainab le and should be rejected. In reply, Mr M.A.Sheikh, learned counsel for the pet itioners submits that these facts have not been stated in the counter filed by t he respondent Nos.4 and 5 and also a copy of the resolution No.12 has also not b een annexed to the counter affidavit of the respondent Nos 4 and 5 and as such , Court cannot take notice of this fact which is not pleaded by the respondent Nos 4 and 5. 9 Mr. S. Chakraborty, learned counsel appearing for the respondent Nos. 2 and 3, whose only submission is that the examination forms have not been forwarded by the College authorities and, therefore, they are in no way involve d. It is only when the College authority forwarded forms, they are to act upon i t. Since the forms have not been forwarded, the respondent Nos 2 and 3 cannot ac t upon it. 10 Upon hearing the respective learned counsels appearing for the r espective parties at some length and upon perusal of the pleadings as well as th e documents relied upon by the respective parties, this court has to consider th e prayer of the petitioners made in the writ petition. The only specific prayer in this writ petition as quoted above, is for a direction in the nature of manda mus directing the respondents, more particularly, respondent No.4- Principal, Kh arupetia College to allow the petitioners to fill up and submit their respective BA Part-II & III examination forms for final examination for the year 2010-2011 under the Gauhati University to be held in the month of February/March, 2011 an d to allow them to sit in the final examination from Kharupetia College . 11 I have given my anxious consideration on the whole matter. The foremost and important question before this court now arises undoubtly that the petitioners have been expelled from the College by a purported resolution No.12 passed by the Governing Body of the said College held on 01.11.2010. Therefore, the petitioners are no longer student of the said Kharupetia College from 01.11. 2010 and since they are no more student of the said College, no direction can be given to the respondent No.4 to allow the petitioners to fill up the forms and sit for the examination. Further also though the said resolution No.12 has come to the knowledge of the petitioners from the affidavit filed by the respondent N os 4 and 5 dated 05.01.2011 and in spite of filing a reply affidavit to the said affidavit of the respondent Nos. 4 and 5, no attempt has been made by the petit ioners to procure or obtain the said resolution No.12 from the authorities conce rned or even through the good office of the R.T.I. Rather the petitioners witho ut making any attempt to obtain a copy of the said resolution No.12 and denial o f receipt of the said notices claimed the protection under natural justice of no t being served with the show cause notices or copy of the resolution No.12. The fact that the petitioners refused to accept the registered notice sent to them a lso goes to show the attitude of the petitioners. Unless the said resolution No. 12 is place before this court and the same is set aside and quash, no such direc tion as prayed for by the petitioners can be granted. 12 In this view of the matter, the writ petition is accordingly re jected and stands disposed of. In the facts and circumstances of the case no cos t is granted.