NAV KUMAR SINGH v. THE STATE OF BIHAR & Ors.

----------- For the petitioners .Mr. Ganesh Pd. Singh Sr. Adv. Dr. Sanjay Kr. Singh, Adv. For the BSEB Mr. Lalit Kishor, Sr. Adv. Mrs. Binita Singh, Adv. Mr. Piyush Lall, Adv. 2

13. 2.7.2009 Heard Sri Ganesh Prasad Singh, learned senior counsel for the petitioners and Sri Lalit Kishore, learned senior advocate for the Bihar School Examination Board. Prayer in these two writ applications read as follows : - C.W.J.C. No. 1615/2007 "That this is an application for the issuance of an appropriate writ/orders/directions for commanding and directing the respondent Bihar School Examination Board to publish the result of the petitioners and to issue mark sheets and other documents who have appeared in the examination of Teachers Training of 1987-1989 Sessions conducted by the respondent Bihar School Examination Board. C.W.J.C. No. 1557/2008 That this is an application for the issuance of an appropriate writ/order/directions for commanding and directing the Respondent Bihar School Examination Board to publish the result of the petitioner and to issue mark sheet and other documents who has appeared in the examination of Teachers Training of 1987-1989 Sessions conducted by the respondent Bihar School Examination Board.” On the basis of the materials on record in the light of aforementioned prayer and the stand of the Board in its counter affidavit a very small but still a significant question arises for determination in there two cases, namely : - Is the Bihar School Examination Board hereinafter referred to as the Board duty bound to declare the result of the petitioners of these two cases who after sixteen years from the date of examination held in 1991 have approached this court with claim to have undergone Teachers Training course in 1987-1989 batch in a private minority College namely Millia Sir Saiyed Primary Teachers Training College , Ram 3 Bagh Purnea and appeared the examination conducted by the Board in 1991 even when result of the students of the said batch within the prescribed number of sanctioned 100 seats (intake capacity) fixed by the State Government has already been declared by the Board in 1991 itself ? It has to be noted that on 10.5.2007 this Court in relation to the aforementioned prayer having noted the stand of the Board had passed the following order : - "Heard learned counsel for the petitioners and the Board. Counsel for the Bihar School Examination Board has filed counter affidavit making a clear statement that the result of only 100 students, who were within the intake capacity of the College in question, has been published by the examining body and petitioners being beyond 100, their result cannot be published. In view of such stand taken, Counsel for the petitioners prays for and is granted adjournment to file rejoinder." Subsequently the issue of intake capacity of the institution of the petitioners was raised by the learned Counsel for the petitioner as noted in the order of the Court dated

11.3.2008 which reads as follows:- "Learned counsel for the petitioners states that the observations of this Court recorded under order dated 30.5.2007 passed in the instant case is contrary to the findings recorded by another Bench of this Court under order dated 22.5.2006 that there was no intake capacity fixed for any teachers training institution prior to 1989-91 Session and as the orders of this Court dated 22.8.2006 has not been taken into note by the same Hon'ble Judge while passing the subsequent order dated 1.9.2006, passed in C.W.J.C. No. 3618 of 2006, said order dated 1.9.2006 should not be relied upon to the defeat the prayer made in these writ 4 applications. Counsel for the Board then submitted that in these applications prayer for declaration of result has been made after 13 years of the examination and on that ground also the writ petitions are fit to be dismissed as Division Bench of this Court under orders dated 19.5.2005 passed in L.P.A. No. 431 of 2005 has observed that this Court would not be justified to direct for publication of result after 13 years. Both the submissions shall be considered on the next date, but in the meanwhile, counsel for the Board is directed to produce any order of the State Government whereunder the Government had fixed intake capacity of 100 prior to 1989-91 Sessions." The intake capacity of the Institution however was found to be 100 students only as was also noted in the following order dated 18.3.2008 : - "In compliance of the earlier order of this Court dated 11.3.2008, learned counsel for the Bihar School Examination Board has produced an order of the State Government in which Government had fixed intake capacity of 100 for the institution prior to the year 1989-91. Let a copy of the said Government order be handed over to the learned counsel for the petitioner in course of the day or by tomorrow." Subsequently the court considering the nature of aforesaid relief and the materials on record including aforesaid orders had passed another order on 4.3.2009, relevant portion whereof reads as follows:- "The petitioner states that he was within the first hundred students to be admitted to the course of Primary Teachers Training in the college in question and as such even if sanctioned strength of the College for the said course was only hundred, his results can not be withheld. On the other hand Sri Lalit Kishore, learned senior counsel on behalf of the respondent Board states that the Board has already published the results of the first hundred who took their exam from the college and petitioner did not figure therein. 5 Mr. Ganesh Prasad Singh, learned senior counsel appearing for the petitioner states that the seriatum of the Board is not in accordance with seriatum of the admission in the college and it is the seriatum in the college which would determine the first hundred students. Consequence of the respective stands of the two senior counsel is that if the result of the petitioner is to be declared then the result of at lease two of the declared candidates have to be cancelled. This can not be done unless the person whose result has to be cancelled is identified and is given an opportunity of hearing by this Court. Let the petitioner take steps as may be advised to them to identify the first hundred genuine students of the Batch in concerned in respect of the college and then identify who are the people whose results have to be cancelled. Such affidavit must be filed within one month from today by the petitioner." Mr Singh with reference to the aforesaid earlier order of this Court dated 04.3.2009 would submit that the petitioners are not in a position to give the name of those 100 students who according to him had been admitted against 100 sanctioned seats of students as stated in the order of recognition of the institution. He, however, submits that this Court should issue notice to the management of the institution so that it may appear and give such list of students. He would, further, submit that to the extent of order dated 4.3.2009 should be recalled/modified. On the other hand, Mr. Lalit Kishore, learned senior counsel appearing for the Board would submit that the writ application itself even otherwise is not maintainable inasmuch as the writ petitioners are said to be the students of 1987-89 batch of Millia Sir Saiyad Primary Teachers Training College, Rambagh, Purnea and their examination according to 6 them was held in the year 1991 but they have approached this court for declaration of result in the year 2007. He in this context, has placed reliance on the judgment of this Court as contained in Annexure-A series of counter affidavit wherein delay alone in moving this has been found to be fatal in claiming of the relief for declaration of results by the petitioners of those cases. Mr. Singh in reply, would submit that there would hardly be any justification in non-suiting the petitioners on the ground of delay inasmuch as when this Court by an order dated 7.8.2006 (Annexure-4) passed in CWJC No. 5198 of 2006 Abdul Gaffar and Another Vs. State of Bihar and others has already issued a direction for declaration of result of similarly situated students of the same institution of 1984-86 and 1986-88 batch, the petitioner in both the cases being the student of 1987-89 batch cannot be discriminated. He would also submit that since the roll number of petitioner of the first case was 11 and that of petitioner in the other case was 28 they must be deemed to have been admitted against sanctioned strength of 100 seats and as such immence from the bar of non-declaration of their result. He would also place reliance on the judgment of this Court in the case of Shashidhar Singh vs. State of Bihar and Ors. reported in 2006(4)PLJR 311 by reading factual portion therefrom showing withholding of result of another institution and on the basis of the same it was 7 canvassed that as a matter of fact the State Government had never imposed any bar on the numbers of students in the order of recognition for any such private institution including the institution of the petitioners and infact such students were allowed to appear in the examination and were held entitled for declaration of their results. This court, first of all must hold that the ratio of the case of Abdul Gaffar (supra) does not lay a law that a student appearing in the examination may approach this court for declaration of result at any point of time. As a matter of fact, the unexplained delay itself would be fatal to the writ application as was held in a series of cases relied by the learned senior counsel for the Board which aspect was not even raised much less decided in the aforesaid case of Abdul Gaffar (supra). Mr. Singh, however had tried to draw inference from paragraph 2 of the order Abdul Gaffar’s case (supra) for contending that there was also delay in that case and yet this court had allowed the prayer of petitioners of that case by issuing a direction for declaration of their result. In the opinion of this Court the ratio of Abdul Gaffar’s case (supra) does not lay down that delay can never be fatal for maintaining the writ petition. On the other hand this Court would find that a Division Bench of this Court in LPA No. 431 of 2005 ( Upendra Bahadur Singh vs. Bihar School Examination Board & Ors.) disposed of on 19.5.2005 had held that delay of 13 8 years itself was fatal for seeking a direction for publication of result. The aforementioned order of Division Bench has also been subsequently followed by this Court in CWJC No. 1618 (Kiran Kumari Sinha vs. The Bihar School Examination Board & Ors.) disposed of on 1.9.2006 and in CWJC No. 6664 of 2006 ( Sunaina Kumar & Anr. vs. Bihar School Examination Board & Ors.) disposed of on 18.8.2006. This court would find that in the present two cases also when the petitioners had slept over for their rights at least for a period of 16 years they cannot be allowed to raise a stale claim for declaration of their results. Such delay in the facts and circumstances is fatal because even if the Board is toady asked to produce original answer papers, attendance registers and other documents the same cannot be produced as the rules and regulations of the board lay down that such documents including answer books are to be maintained only for the period of three months from the date of declaration of results. In such view of the matter, if a student after knowing well that his copies have been destroyed and there is no possibility of any record to be produced would approach this court after 16 years seeking a direction for declaration of result, delay alone would be fatal for such stale claim. Apart from delay, which alone in the facts of this case is fatal and thus sufficient to dismiss the two writ applications, this court cannot give the relief to the petitioners 9 for yet another and infact equally compelling reason. In this regard, as noted above, from the order dated 4.3.2009 it would be found that in this court had indicated the necessity of impleading 100 students of the institutions of the petitioners of 1987-89 batch whose results were declared in 1991 while refusing to declare the result of rest of them including the petitioners on the ground that the institution having a sanctioned strength of 100 students could not have taken admission and also allowed them to appear in the examination conducted by the Board Mr. Singh, learned Senior Counsel for the petitioners also does not dispute that in the order of recognition of institution there was a clear ban imposed on the institution that it will not admit more than 100 students and obviously could not have allowed more than 100 students in appearing in the examination. the result of those 100 students have already been declared. Today after 16 years of such publication of result if the petitioners say that they were amongst first 100 students and had been rightly admitted on the basis of college roll number 11 and 28 in the college register and therefore these two petitioners are entitled for declaration of results, result of at least two of the students already declared will have to be cancelled. It was for this reason that this Court, therefore, had found the necessity that the list of 100 persons who were allegedly admitted against sanctioned seats and were rightful persons for declaration of 10 their result should be disclosed. Counsel for the petitioner however states that the petitioners had made best of their efforts but the management has not supplied such list and therefore this court should now issue notice to the management directing it to produce the list of 100 genuinely admitted students of 1987-89 batch. Such recourse however is not permissible in law as this court cannot become a tool in the hands of private management for securing the alleged rights of the petitioners who have themselves approached this court after 16 years of declaration of result. Infact this court would find it difficult to place reliance on any such list which may now be produced by the private management, a minority institution, which despite a clear ban of not admitting 100 students in 1987-89 batch had gone to take admission beyond sanctioned intake capacity. In any event it is the petitioners who while seeking a writ of mandamus from this court have to first establish their right and cannot be permitted to take a plea that since the respondents have failed to discharge the onus of producing a document or information, the benefit thereof should be given to the petitioners. That is not the concept of discharging onus or proving of a particular fact which always lies on the plaintiff/petitioner to prove his case. Thus if the petitioners despite opportunity given to them have failed to furnish the list of those 100 students admitted against sanctioned/intake capacity in 1987-89 batch this Court would 11 find absolutely no reason to recall/review the earlier order dated 4.3.2009. The last submission made by learned counsel for the petitioner that this court should assume that since role number of the petitioners in the college in 1987-89 batch was 11 and 28 respectively it is those two petitioners who are amongst 100 students can also not be accepted as result of 100 students having Board’s roll no. 1 to 100 has already been declared in 1991 and if the case of the petitioners whose roll no. in Board’s examination was 100, 103 and 109 respectively on such assumption is allowed results of some of those 100 persons will have to be cancelled. However in absence of such persons before this Court who have been not made party to these two writ petitions coupled with delay of nearly sixteen years in this regard becomes crucial as the rights of those 100 students or some of them cannot be taken away after such a long lapse of time and that too behind their back. Thus in the light of aforesaid findings these two writ applications being devoid of any merit must be and are hereby dismissed. kanchan (Mihir Kumar Jha, J.)