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Judgment
These two Latter Patent Appeals are directed against the judgement and order dated 14.3.1997 passed by the learned Single Judge, whereby
Writ Petition Nos. 64, 27, 72 and 59 of 1997 have been dismissed.
A few facts necessary for disposal of the appeals are that the appellants in LPA No. 187/97 are the private institutes approved by the All India
Council for Technical Education and affliated with the J&K State Board of Technical courses for a duration of 2 years and 3 years and have to
their roll about 3000 students. The managements of these institutions till the year 1993 were making admissions to the course available in the
institutes for imparting technical education. In the year 1993 on 421993, the Hon'ble Supreme Court in case titled ""J.P. Uni Krishanan and ors V/s
State of A. P. and ors (AIR 1993 SC 2178) laid down a Scheme for imparting education by the professional colleges in Medical and Engineering
Courses and the State Governments were required to regulate the admissions of the private institutes through Competent Authority or prescribed
authority. The judgement of the Supreme Court was not complied with and implemented till 1995 by the authorities of the State for selecting the
candidates for undergoing training in professional courses in these institutes according to the scheme laid down and directed by the Supreme Court.
Kashmir Institutes of Technology and Engineering, Raj Bagh Srinagar, appellantwrit petitioner in W.P. No: 27/1997, for the first time in the year
1995, addressed a letter to the Director, Technical Education, J&K Government inviting attention that no policy regarding the admission has been
made by the Govt., therefore, his institution is going to make admissions at his own for the course available in the Institutes as other Institutes have
already made the admissions. The secretary, State Board of Technical Education, on 3895 issued a Circular for information as directive to the
institutions which was published in the Daily Kashmir Times on 481995, which reads as:
All the Principals of the Private Polytechnics/Institutes located in J&K
State are hereby directed not to make any admission in their respective Polytechnics/Institutes for the current session 199596 till further instructions
from the Administrative Department.
Under Secretary to Government, Technical Education also wrote a letter on 781995 to the National Institutes of Science and Tech
'nology, Miran Sahib, Jammu, directing him that in pursuance to the Judgement of the Hon'ble Supreme Court in J. P. Uni Krishanan & Ors V/s
State of A.P. and others and in pursuance of A.I.C.I.E. Notification G.S.R.476(E) dated 2051994 all admission shall be made by the competent
authority through a common Entrance Test on 50:50 basis for 'Paid seats' and Tree seats'. Any deviation of the order would invited serious
consequences in the shape of adverse orders from the Hon'ble Supreme Court. The letter further communicated that no admission should be made
by the institutes in contravention of the Supreme Court orders and if any adverstisement has already been made for admission be withdrawn
forthwith.
This letter specifically disclosed the mind of the Government for banning the admissions to be made by the management of the institutions.
On 15895 another Circular came to be issued by the Director, Technical Education, which appeared in the news column of a Local Newspaper
as a notice to the general public, which reads as :
It is for the General information of pubic that no student will take admission either for 3 years diploma or 2 years Draftsman Course(Engineering
and nonEngineering discipline) with any Private Polytechnic/Institution located in Jammu and Kashmir State for the session 199596. Any body
doing so
will be doing at his own risk and responsibility.
Confronted with this situation appellants made representation to the Commissioner Secretary to Govt., Technical Education, the next of which is
reproduced as under:
In view of the above mentioned submissions it is very earnestly requested to give your august consideration and revise decision regarding
admissions for 199596 as has been done in 199495 session inspite of Supreme Court Decision being in force from 2061994. It is also highly
prayed that a revised admission policy to be formulated by the admission policy to be formulated by the Government on the basis of Supreme
Court verdict may kindly be communicated well in advance for the next session i.e. before May, 1996 as nothing of the sort has filtered down
about the procedural changes to be effected in the mode of admission to technical Institutions.
The State Board of Technical Education on 290895 issued a notification permitting 6 private institutes out of the present appellants to make
admission for the Session 199596 which came to be published in Daily Kashmir Times on 300895, which reads as follows:
It is for the information of general public that the following private Polytechnics approved by All India Council for Technical Education are allowed
to make the admission for the course approved by AICTE/SBOTE strictly as per the norms of AICTE/SBOTE for the session 199596.
Till session 199596, the authorities of the state, did not implement the judgment consequently admission could not be made in accordance with
the scheme laid down by the Supreme Court. Though the State Government was aware, which is evident from the facts stated herebefore that their
action of permitting the Institutes for making selection is contemptous, derogatory and in breach of the directions of the Hon'ble Supreme Court.
Still the Govt. again issued Notification on 1291995 which was published in local Newspaper which reads as:
In persuance of Administrative Department No. Edu/Techn/40132 dated 1091996 the following AICTE and State Government recognised Private
Polytechnics of J&K state are allowed to make the admissions for the sessions 199697 only strictly on merit and prescribed norms of AICTE in
the approved courses.
It is one time relaxation. This concession will not however form a procedure in future. In future the admissions will be done by the Competent
Authority Entrance Examination.
One of the private institutions issued on advertisement which appeared in the column of a newspaper inviting candidates to seek admission for
diploma course in the institute. One of the Judges of this Court taking notice of the said advertisement, submotto entertained the writ petition and
passed certain directions therein on 31121996. One of the directions was issued to the respondents State that since the law laid down by the
Supreme Court in J.P. Uni Krishanan and ors V/ sState of A.P. and others, is being violated, therefore, the State should ensure compliance and
implementation of the judgement and that the Board of Technical Education and Universities in the State of J&K shall not conduct the examination
of the candidates who have not been selected in accordance with the scheme laid down by the Supreme Court.
Persuant to the directions issued by the writ Court on 31121996, the State Board of Technical Education for seeking compliance and
implementation of the said directions issued an order on 61 1997, which reads asunder
In view of the order passed by the honb'e High Court of J&K at Srinagar dated 31121996 in a Public Interest Litigation, all polytechnics
examination which are being conducted in the J&K, by Secretary State Board of Technical Education are hereby postponed with immediate effect.
The dates for the said examination shall be notified lateron.
The appellantsWrit petitioners have challenged this order dated 6.1.1997 in writ petitions, which came to be dismissed by the learned Single
Judge by an order dated 14.3.1997 with the observation that the judgement of the Hon'ble Supreme Court has not been flouted only but a
complete defiance has been shown by the Government and by the management of the private Institutions and the attitudes of the government and
private Institutes is nothing but to dilute and dilute the judgment of the Supreme Court completely.
lt is this order (dt. 14.3.1997) which has been challed in question in the LPA NO. 187/ 97 by the appellants.
LPA No. 187 of 1997 came to be presented by the affected students against the same order which is under appeal in LPA No. 197 of 1997.
Three applications were filed being IA No. IV on behalf of eight petitioners, lA NO V by 12 petitioners and IA NO. VI by 40 petitioners,
who are also effected students, form impleading them as partyappellants. The applications were allowed and the petitioners were directed to be
impleaded as partyappellants.
The Management of the Institutions and some of the affected student have filed the appeals while the State Government has not preferred to
challenge the order of the learned Single Judge in appeal.
We have heard the learned counsel for the parties, gone through the Memorandum of the appeals and the grounds taken therein, order under
appeal and the other evidence on record.
The learned counsel for the appellants have urged before us that the scheme laid down by the Supreme Court in its judgement (supra) is a
method, manner and procedure evolved for regulating the Professional Colleges and the selection and admission of the candidates for undergoing
courses, in the college is neither sacrosanct nor law as such, laid down by the Supreme Court. The Scheme is subject to further modification as has
been done by the Supreme Court. Further that whether the judgement of the Supreme Court can be implemented by the High Court in terms of the
mandate of Article 144 read with Article 215 of the Constitution of India and Section 94 of the Constitution of the State of Jammu and Kashmir
Whether the students, who have acted on representations can be made to suffer and penalised for commission of the contempt of the Supreme
Court judgement, if any, and for no fault of their Whether for the sins committed by the State and the Management of the Institutions, the Students
can be visited upon with a penalty of the nature with which they have been penalised being thrown out from the classes hanging in the balance
cursing their fate Whether 2 years/3 years 'Diploma Certificate secured by those students who, admittedly have been enrolled in these Institutes
after the judgement of the Supreme Court, will be honoured by the Govt. and what will happen to those students who are similarly situated but
could not get through in 1st attempt to secure the diploma and being their basic admissions are at peril? Whether the students/appellants are not
justified in demanding equitable relief?
The learned counsel for the State has also made submissions and contended that the appeals should be rejected for the reason that the writ
petitions are not maintainable as the order under challenge in the writ petitions is issued by the State Board of Technical Education in execution of
the order dated 31121996 passed by the learned Single Judge. He submits that this objection was raised by him before the learned Single Judge
who has made a mention of his contention in the course of the'order, but has not returned a finding to that effect and the petitons have been
dismissed on other grounds. The objection taken before this court with regard to the maintainability of the writ petitions.
He has tried to justify that the Institutions were permitted to make admission because of the peculiar circumstances with which the State is
confronted because of the militancy and efforts have. been made to implement the Scheme laid down by the Supreme Court, authorising them to
make admission as one time relaxation only. We are not convinced with the arguments of Mr. M.A Goni, learned Sr. Additional Advocate General
to that effect. The scheme laid down by the Supreme Court should have been put in practice by the State of Jammu and Kashmir in its right earnest
in the year 1993. Though the SRO 51 of 1997 has been issued in implementation of the judgment still fee structure have not been fixed and it is yet
to be known as to what yearly fee a student has to pay for undergoing the course.
Mr. Goni was also directed to apprise the Court as to what is the system evolved by the Government for monitering the implementation of the
judgments of the High Court and the Supreme Court. What prompted the State Government to authorise the Institution for permitting them to
make admission as one time relaxation, while the Competent Authority in the State is already in existence. Mr. Goni could not tender any plausible
explanation but pleaded only that the State is facing extremely peculiar circumstances and have tried to implement the scheme laid down by the
Supreme Court.
Before we deal with all the question raised and canvassed at the bar, the objection raised by the learned counsel for the state that writ petitions
are not maintainable and so the appeals, need to be considered first, as it goes to the roots of the case and its determination can well decide the
fate of the case.
Undoubtedly, the direction issued by the writ court on 31.12.1996 have not been challenged. It is only the order dated 6.1.1997 issued by the
State Board of Technical Education seeking complaince of the court direction have been challenged. The learned Single Judge in the course of the
order under appeal has referred the objection taken by the learned Advocate General, representing the State that the order impugned in the writ
petitions have been issued by the Government in compliance to the direction of the High Court, therefore, no writ would lie. Had the petitioners felt
aggrieved of the writ Court order dated 31.12.1996 they should have challenged the said order in appeal. The learned Single Judge has not
specifically dealt with the point and returned finding on the objection raised, which is sustainable to be agitated for having determination by us in
appeal. We feel that there is substance in the contention of the learned counsel representing the State which must prevail. The legal contention
raised by the learned counsel for the State is not res integra and stand settled by the Apex Court in case titled Narsh Shridhar Mirajkar Vs. State
of Maharashtra and another reported in AIR 1967 S.C. ! while dealing with the scope of writ jurisdiction under Articles 32(2), 226 and 19(1) of
the Constitution of India. The facts of the case are that in a suit proceedings, the trial judge passed the oral order prohibiting publication of the
proceedings of the trial. The learned counsel made a prayer before the court that a written order to that effect should toe passed by the court.
Rejecting the submission, the court did not pass a written order, but observed that no written order was necessary and expected that the oral order
should be obeyed. Against this oral direction passed by Mr. Justice Tarkunde, the trail judge, the aggrieved party moved the Bombay High Court
in a writ petition under Article 226 of the Constitution of India, The petition was dismissed by the Division Bench of the said High Court on the
ground that the impugned order was a judicial order of the High Court and was not amenable to writ jurisdiction under Article 226. The aggrieved
party moved the Supreme Court under Article 32 of the Constitution of India questioning the legality of the orders of the High Court. The Supreme
Court has dealt with this aspect as to whether the judicial order of the High Court is amenable to writ jurisdiction under Article 226 in para 39 of
the judgement, which is reproduced as under:
The impugned order is, in a sense an order of a collateral nature, it has no direct relation with the decision of the dispute which had been brought
before the Court in the proceedings between the parties. The learned judge, however, thought that in order that he should be able to do full justice
between the parties it was necessary to pass the impugned order. Thus, though the order in a sense is collateral to the proceedings which were
pending before the Court, it was directly connected with the said proceedings in as much as the learned Judge found that he could not do justice
between the parties and decide the matter satisfactorily unless the publication of Mr. ""Coda's evidence was prohibited pending the trial. The order
is not collateral in the sense that the jurisdiction of the judge to pass that order can be challenged otherwise than by a proceeding in the appeal. Just
as an order passed by the Court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the
fundamental rights of the litigants before the Court so could the impugned order be challenged in appeal under Article 136 of the Constitution, but it
cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a
matter directly in issue between the parties or is passed incidentally to make the adjudication of the dispute between the parties fair and effective.
On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners'
fundamental rights under Article 19(1) must fail.
This law laid down by the Supreme Court contained in the Judgement(supra) is applicable to the facts of the present case with full force. In the
present case also the order impugned in writ petition is issued seeking implementation and compliance of the court direction dated 31.12.1996. If
order dated 6.01.1997 is set aside, it will render the direction issued by the writ court on 31.12.1996 redundant and infructuous. The order passed
by the writ court in exercise of the extraordinary writ jurisdiction under Article 226 of the Constitution of India can be modified and altered in the
same proceedings by the writ court but, cannot be sought to be set aside by filing a separate writ petition invoking extraordinary writ jurisdiction.
The remedy for the writ petitioner was either to seek modification of the basic order dated 31.12.1996 or to challenge it before any available
competent forum.
In view of the above narrated facts and the law laid down by the Supreme Court, the writ petitions are held to be not maintainable and
consequently the appeals are bound to fail, which are accordingly dismissed.