IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1070 of 2009 1. The Director, National Institute of Open Schooling B-31B, Kailash Colony, New Delhi presently located at A-24-25, Institutional Area, Sector-62, Noida, District Gautam Budh Nagar- 201309(UP). 2. The Regional Director, National Institute of Open Schooling Lalit Bhawan Bailey Road, Patna. .. Respondent Nos.2 and 3-Appellants . Versus 1. Richa Jaiswal, daughter of Raj Kuar Jaiswal, resident of Mohalla Choti Patan Devi, P. S. Patnacity, District- Patna 2. Raj Kumar Jaiswal Son of Late Ram Gopal Jaiswal, resident of Mohalla Choti Patan Devi, P. S. Patnacity, District- Patna. … Petitioners-Respondents 3. The Union of India through the Secretary, Ministry Human Resources Development Department, New Delhi. 4. The Co-ordinator National Open School St. Michael’s School, Digha Ghat Patna. A Franchisee Unit of respondent no. 2. … Respondent Nos. 1 and 4 .. Proforma Respondents ---------- For the Appellants : Mr. Madhumesh Prasad, Adv. For the respondents : …… ----------- 2. 15.02.2010 Heard Mr. Madhumesh Prasad, learned counsel for the appellants. In this Letters Patent Appeal, the assail is to the order dated 13.7.2009 passed by learned Single Judge in CWJC No. 2949 of 2009 whereby the learned Single 2 Judge has directed the National Institute of Open Schooling to permit the respondents-Student to appear in the examination which is scheduled to be held in October- November, 2009. Questioning the correctness of the order, it is submitted by Mr. Prasad that the writ petitioner no.1, Richa Jaiswal was given admission though she was under age on the date of her admission. It is contended by him that her age has been shown to be 1.1.1993 and she could not have been admitted on the anvil of Clause 2.9 of the Prospectus. He has also commended to us that the appellants-Institute has jurisdiction to cancel the admission if a student is under age. On a perusal of the prospectus, we find that the aforesaid stand gets support from the provisions incorporated therein and hence, there can be no scintilla of doubt that the institute has the power. Even if the admission is given, once there is a provision which confers the power to cancel, we are inclined to dislodge the finding recorded by the learned single Judge that the institute had given admission with open eyes and hence, could not have cancelled the admission. It is worth noting 3 that the admissions are given by the accredited institute and also on line and, therefore, at that juncture the present appellants have no occasion to see the disqualifications. In view of the aforesaid, the order passed by the learned single Judge is unsustainable. The National Institute of Open Schooling cannot be really found to be guilty of admitting such a student. The fault does lie with the accredited institutes which are supposed to conduct themselves and act in accord with the prospectus. While we have dislodged the order passed by learned single Judge, we put it to Mr. Prasad , learned counsel for the appellants whether the institute would have any objection to allow the respondent-student to continue in the course as a special case. We must state with appreciation that Mr. Prasad, learned counsel for the appellants has fairly stated that the institute has no objection and the respondent-student shall be allowed to continue in the Institute and would be permitted to complete her course and her result for the examination undertaken shall also be declared and accordingly it is so ordered. We may hasten to clarify that the present order 4 is passed on the basis of concession and when it is founded on concession, it cannot be treated as a precedent. In the result, the appeal is allowed to the extent indicated above. There shall be no order as to costs. kanchan (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)