{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2964 OF 2009 Marathwada Shikshan Prasarak Mandal Devgiri College Boys Hostel Station Road, Aurangabad Through its Chairman Vitthalrao s/o Pandurang Lahare Age-60 years, Occ-Social Work, R/o Guruchaya, Venkatesh Nagar, Near Vedant Hotel, Aurangabad PETITIONER VERSUS 1. The State of Maharashtra Through Secretary, School Education Department, Mantralaya, Mumbai 2. The Divisional Secretary, Maharashtra State Secondary & Higher Secondary Board, Aurangabad Division, Aurangabad Station Road, Osmanpura, Aurangabad RESPONDENTS ....... Mr.S.K.Shinde, Advocate for petitioner Mr.V.B.Ghatge, AGP for respondents No.1 Mr.A.R.Nikam, Advocate for respondent No.2 ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] Reserved on : 22.09.2009 Pronounced on : 08.10.2009 {2} JUDGMENT (PER A.V.POTDAR, J.) : 1. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties this petition is heard finally at the stage of admission. 2. By the present petition, under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ of certiorari to quash and set aside the impugned letters dated 08.04.2008, 28.04.2008, 30.12.2008 and 13.04.2009, issued by the second respondent. The petitioner has also prayed for issuance of a writ of mandamus directing the respondent No.2 not to charge and recover any late fees for the examination of the 12th Standard, held in March 2008. 3. At the outset, the facts, which gave rise to file the present petition, can be summarized as under : The petitioner is a registered trust and runs educational institutions. In view of the permission granted by respondent No.1 on 16.05.2006, the petitioner started junior colleges on permanent non grant basis at Pirbawada, Tq-Phulambri and Gadana Tq-Khultabad, from June 2006. The petitioner has also started classes of 12th Standard from June 2007. It appears that in view of the decision dated 07.07.2006 rendered in writ petition No.2897/2006, by the Division Bench of this Court at Nagpur Bench, all the permissions granted by respondent No.1 to open schools on permanent non grant basis were canceled. It further appears that this decision was challenged by the Association formed by the petitioner and other similarly aggrieved institutions, before the Apex {3} Cort in Special Leave Petition. It also appears that on 04.05.2007, the Apex Court had granted status quo in favour of the petitioner institution and others. Accordingly, this order was intimated to the Directorate of Education (Secondary and Higher Secondary Education Maharashtra) and to the President of the Maharashtra State Secondary and Higher Secondary Educational Board (Apex Body of respondent No.2), by the Deputy Secretary of the State of Maharashtra, vide communication dated 26.06.2007, with a direction to issue provisional Index Code to the institutions, which were parties to the said Special Leave Petition and also directing to accept the examination forms without charging late fee, for the examinations to be conducted in the month of March 2008, subject to the decision of the Special Leave Petition. Accordingly, respondent No.2, vide letter dated 12.11.2007, informed the petitioner and also granted the index code number to the petitioner. It appears that respondent No.1, vide communication dated 17.03.2008, informed the Director of Education that the Special Leave Petition, filed in the Apex Court came to be allowed on 16.01.2008. Vide impugned communication, respondent No.2 informed the petitioner to pay Rs.48,225/- and 1,14,675/- as late fees on or before 22.04.2008 and 14.08.2008 failing which results of the examinations held in the month of March 2008 would not be declared and forms of examinations to be held in the month of March 2009 would not be accepted. It appears that certain correspondence took place between the Board and the State Government in which the Board was directed by the State Government to take requisite action, as per the existing rules, for recovery of the late fees. Therefore, respondent No.1 directed the petitioner to pay the amount till 24.04.2009 failing which the results of the examinations held in the month of February / March 2009, would not be declared. Hence, the {4} petitioner is before this Court for the aforesaid reliefs. 4. In response to the notice issued by this Court, respondent No.2 appeared and filed its affidavit in reply contending that the programme of examinations to be held in February 2008 was declared and the respondent Board had issued a circular on 01.10.2007 informing that the examination forms would be accepted till 17.10.2007 with regular fees and till 27.10.2007 with late fees. According to respondent No.2, the petitioner had submitted the examination forms on 12.11.2007 with regular fees only along with an undertaking that if directions would be given by the State Government to charge late fee, the petitioner would pay the same. It is specifically stated in para 6 of the reply that though the status quo was granted by the Apex Court on 04.05.2007, yet the petitioner has not taken any steps to submit the examination forms of the students till 12.11.2007. Therefore, this respondent is entitled for recovery of the late fees as claimed. There is bold allegation made against the petitioner in para 7 that taking advantage of the status quo order passed by the Apex Court, the petitioner has admitted students by charging huge fees, however no attempts were made to submit the examination forms of those students within the stipulated time. Lastly, it is contended that if the petition is allowed and the petitioner is exempted from the payment of late fees, then there is every possibility that the institutions, which had submitted the examination forms with late fees, may take advantage of this decision as precedent and claim similar exemption, which would cause huge financial loss to the Board and hence prayed for dismissal of the petition. 5. After filing of the affidavit in reply by the respondents, the {5} petitioner has filed affidavit in rejoinder to the same. It is stated that subsequent to the order passed by the Apex Court on 16.01.2008 Deputy Director of the Education Department of the State of Maharashtra, issued one circular on 17.03.2008 directing the Board to grant index Code to the institution to submit the examination forms. It is also contended that the second respondent has not annexed the complete copy of the circular dated 01.10.2007. However, the circulars dated 01.10.2007 and 21.01.2008 are properly explained in the order dated 08.10.2008 passed by the Division Bench of this Court in Writ Petition No.5667/2008. According to the petitioner, the petitioner had approached the Board with the Demand Draft and examination forms on 12.10.2007 and 23,10.2007, however the Board refused to accept the examination forms without index code. Therefore, the examination forms were submitted on 12.11.2007 only after grant of the index code by the second respondent. Lastly, it is contended that the second respondent is entitled to recover only Rs.25/- per student as a late fee. 6. Heard learned counsel for the parties in this background. 7. Learned counsel appearing for the petitioner has placed on record copies of unreported judgments rendered in Writ Petition No. 1258/2008 dated 19.08.2008, Writ petition No.5667/2008 dated 08.10.2008 and Writ Petition No.5669/2008 dated 03.02.2009 passed by the Division Bench of this Court. According to the petitioner, the present writ petition is based on the identical facts as of those referred above. As against this, according to the learned counsel for respondent No.2 the facts of the petitions decided by this Court and the facts of the present petition are not identical as demonstrated by the petitioner. {6} 8. Considering the submissions advanced on behalf of the parties, it is clear that the examination forms of the students cannot be accepted by the Board without grant of index code to the concerned institution. The facts pleaded before us clearly indicate that index number was not granted to the petitioner till 12.11.2007, when the examination forms of the students of petitioner institution were submitted to the Board. There is nothing before us to indicate that though the Board has granted the index code to the petitioner, yet the petitioner failed to submit the examination forms of the students till 12.11.2007. In the premise, the petitioner cannot be faulted with and held responsible for submission of the examination forms of the students on 12.11.2008 i.e. after the stipulated period, as per circular dated 01.10.2007. Therefore, the Board cannot recover the late fees from the petitioner in respect of the examination forms submitted on 12.11.2007. However, the board can recover only Rs.25/-per student as a late fees from the petitioner of which the total amount comes to Rs.5,400/- 9. We are informed that the petitioner has deposited Rs. 10,000/- in this Court in pursuance of the order of this Court dated 29.05.2009. It is also informed to us that after this amount was deposited, respondent No.2 Board has declared the results of the students of the petitioner institution, who had appeared in examination held in March 2009. 10. In the result, we hereby allow the writ petition to the extent that the impugned communications are quashed and set aside with a modification that the Board is entitled to recover Rs.25/- per students {7} i.e. total amount of Rs.5400/- from the petitioner. This amount be adjusted from the amount deposited by the petitioner with respondent No.2 Board and the balance amount be refunded to the petitioner. 11. Rule is thus made absolute on the above terms with no order as to costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp2964-09