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Judgment
This writ petition was moved yesterday on urgent basis and following order recorded.
"Petitioner alleges he has been deprived registration, which will not allow him to sit for B.Sc. Honours Part - I Examination, 2018 commencing tomorrow. So Mr. Bari, learned advocate appearing on his behalf was given leave to move this writ petition unlisted citing urgency. The writ petition is moved treating same as on day's list.
Mr. Bari submits, his client took admission in Ashutosh College on paying, inter alia, University registration fees on 28th June, 2018. Two months later he took admission in Scottish Church College. According to his client, Ashutosh College did not take any steps for having petitioner registered with the University holding out that petitioner had obtained transfer certificate (TC). Scottish Church College did not accept registration fees to initiate process for petitioner obtaining registration through it on holding out Ashutosh College would obtain registration.Mr. Bhattacharya, learned advocate appears on behalf of the University and submits, no interim order can be made allowing petitioner to sit in the examination commencing tomorrow in absence of his registration.
The two Colleges have not been served. This order being dictated in Court, learned advocate for petitioner is at liberty to communicate gist of it and immediately serve the Colleges. The Colleges upon service are expected to be represented in Court tomorrow. Petitioner will file affidavit of service. List tomorrow marked at 10.30 A.M."
Mr. Bari, learned advocate appears on behalf of petitioner and hands up copy notices dated 10th December, 2018 addressed to the Colleges, received by them yesterday itself, requesting them, inter alia, to be present today at 10.30 A.M. for purpose of this writ petition. Colleges go unrepresented.
Mr. Bari on instructions submits, his client has requisite attendance, which is why on 29th November, 2018 and 4th December, 2018 two similar representations made by his client to the University, seeking registration, were forwarded by Scottish Church College. He also draws attention to respective receipts for deposit of fees, firstly in Ashutosh College and then in Scottish Church College. He submits, University registration fee was deposited in Ashutosh College while all other requisite fees were deposited once again in Scottish Church College where his client subsequently took admission. He submits, pending processing of his case for registration, he should be allowed to take ongoing semester examination without prejudice to rights and contentions of the University.
Mr. Bhattacharya relies on two judgments of Supreme Court for his submission that no interference, even as an interim measure, is warranted in favour of petitioner. There is no averment in the writ petition regarding attendance in Scottish Church College while transfer certificate demonstrates he did not attend any lecture in Ashutosh College. He confirms, both the colleges are affiliated to his client and a student will get one registration number irrespective of him moving from one affiliated college to another. However, registration is granted on verification made by his client, which his client has not been able to do as no application was forwarded by either college. Presence of colleges must be secured to ascertain from them why this omission, whether it is because of laches or some omission on part of petitioner. So far as his client is concerned petitioner is not a student and, therefore, cannot be allowed to take on going semester examination. He relies on judgment of Supreme Court in Central Board of Secondary Education vs. Nikhil Gulati and another reported in AIR 1998 SC, 1205. The judgment is quoted below:-
"Occasional aberrations such as these, whereby ineligible students are permitted, under Court orders, to undertake Board and/or University examinations, have caught the attention of this Court many a time. To add to it further, the Courts have almost always observed that the instance of such aberrations should not be treated as a precedent in future. Such casual discretions by the Court is nothing but an abuse of the process; more so when the High Court at its level itself becomes conscious that the decision was wrong and was not worth repeating as a precedent. And yet it is repeated time and again. Having said this much, we hope and trust that unless the High Court can justify its decision on principle and precept, it should better desist from passing such orders, for its puts the 'Rule of Law' to a mockery, and promotes rather the 'Rule of Man.'
All the same, fond hopes were raised in the minds of the students herein. Therefore, we decline to interfere under Article 136 of the Constitution. The S.L.P's. are, accordingly, dismissed."
He then relies on Regional Officer, CBSE versus KU. Sheena Peethambaran and others reported in (2003) 7 SCC 719 in particular paragraph 6, part of which is reproduced below: -
"6. This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases it is ultimately pleaded that since the course was over or the result had been declared, the matter deserves to be considered sympathetically. It results in very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions. A few decisions on the point may be perused. In C.B.S.E. v. P. Sunil Kumar the institutions whose students were permitted to undertake the examination of the Central Board of Secondary Education were not affiliated to the Board, hence the students were not entitled to appear in the examination. They were, however, allowed to appear in the examination under the interim orders granted by the Court in contravention of the rules and regulations of the Board. The High Court considering the matter sympathetically had not interfered, but this Court observed thus: (SCC p. 381, para 4)
"But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students."
Mr. Bhattacharya submits further, petitioner has not explained delay in approaching this Court. Discretionary relief, even as interim measure, should not be granted to such petitioner. He relies on State of M.P. and others versus Nandlal Jaiswal and others reported in (1986) 4 SCC 566, paragraph 24. An extract from paragraph 24 is reproduced below:-
"24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitutioin is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petiton filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on thrid parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction."
In spite of ensuring service made on the colleges Court does not have benefit of their respective versions regarding why this situation has come to pass. Clause (h) under section 114 of Indian Evidence Act, 1872 allows Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case where if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him. At this stage by reason of absence of the colleges Court can, at least prima facie, presume as facts that which has been urged by petitioner. He, a student has written two similar representations addressed to the University. First was forwarded by Scottish Church College on 29th November, 2018 and the next on 4th December, 2018. Scottish Church College, if it had attendance issue regarding petitioner, acted irresponsibly in forwarding these two representations. That cannot be presumed but what can be presumed, prima facie, is that there was no attendance issue.
It appears from transfer certificate issued by Ashutosh College, petitioner did not attend any lecture but the column preceding, being of lectures delivered, is also scored through. A fresher in under Graduate course study of first semester will not be called upon to deliver lectures. As such, Court is not able to rely upon the scored out columns in transfer certificate for presumption that the student did not attend any lecture. The scoring out of these two columns need to be explained by the College, if it chooses to appear.
In Nikhil Gulati (supra) orders or judgments of Courts (High Courts) which they themselves have observed should not be treated as a precedent would not be applicable to an interim order made which cannot be said to be a precedent but in Regional Officer, CBSE (supra) Supreme Court said about interim orders passed by High Courts. However, Supreme Court said what it did, as quoted above, on interim orders maturing into final orders based on sympathy since the course was over or the result had been declared. This Court in passing interim order will take care to see that does not happen.
So far as delay on part of petitioner is concerned, this Court is inclined to give him some latitude considering him to be a student as he had made two representations as aforesaid. His eagerness in wanting to take the examination also speaks of some application to his course study. What is apparent is he wants to proceed on his way. There is no question of accrual of any third party rights in his so wanting on an interim measure, of him to be allowed to take his ongoing semester examination. In the circumstances, having come at the eleventh hour cannot be said to be conduct which is tardy or that he is indolent or he has been acquiescent and lethargic.
Petitioner shall be allowed to take ongoing semester examination commencing at 2 P. M. today. This direction is an interim measure since in event petitioner's case for registration is found in order, not allowing him to take the examination will cause him irreparable injury. It is made clear that him being allowed to take the examination by interference of Court will not accrue in his favour any right to have his answer scripts examined or results declared, pending his claim for registration being duly dealt with by the University. Also as an interim measure the University is directed to consider his case for registration as to be forwarded by Ashutosh College. The University, without resisting such consideration on account of delay, will require all relevant information from both the colleges to consider said application. In event it finds the application is in order, registration is to be granted. Only on grant of such registration the University is required to give its attention to petitioner's efforts in this ensuing examination. Petitioner will obtain copy of this order and serve on both colleges. The colleges are expected to act with expedition regarding petitioner's application for registration and be represented on adjourned date failing which Court might consider ensuring their attendance. Mr. Bhattacharya submits, petitioner has not made any averment regarding his omission to apply for submission of filling up form on-line. If omission to fill up on-line examination form is an omission that is fatal to grant of registration, as must be done prior to its grant, petitioner will then not get his registration.
The two copy notices are handed back for being annexed to an affidavit of service to be affirmed and filed during course of this day.
Mr. Bhattacharya prays for stay of operation of this interim order. Prayer is considered and rejected.
List under heading 'For Orders' on 19th December, 2018.