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PETITIONER: C.B.S.E. & ANR.

       Vs.

RESPONDENT: P.SUNIL KUMAR & ORS.

DATE OF JUDGMENT:       12/05/1998

BENCH: SUJATA V. MANOHAR

ACT:

HEADNOTE:

JUDGMENT:                             WITH              CIVIL APPEAL Nos. 2663-67 OF 1998  (Arising out of SPL (C) Nos 22135/97, 22136/97, 22137/97,                     22139/97 & 22140/97)                       J U D G M E N T PATTANAIK, J.      Leave granted in all the Special Leave Petitions.      These  six  appeals  filed  by  the  Central  Board  of Secondary Education  are directed  against the  judgment and order of  the Division  Bench of the Kerala High Court dated 18.6.1997 disposing  of Writ  Appeal  Nos.  948/97,  978/97, 285/96, 300/96  as well  as the two Original Petitions filed before the  Division Bench,  namely, O.P.  Nos. 2400/96  and 3559/96. The  question that  arises for  consideration is  : whether students  studying in institutions not affiliated to the Board  of Secondary  Education can  be permitted  by the High Court  by an interim order to appear at the examination conducted by  the Board  and ultimately  can  the  Board  be compelled to  issue certificates to those students who h ave appeared  at   the  examination  pursuance  to  the  interim direction of  the court  notwithstanding the  fact that  the institutions where the students were prosecuting their study have not  yet received  affiliation of  the Central Board of Secondary Education? Writ Appeals 949/97 and 978/97 had been preferred by  the Board-Appellant,  against the order of the learned single Judge dated 6.2.1997 by which order the Board was directed  to allow  the students  of Sree Narayan Vidhya Bhavan, Chandrappinny, Thrissur to appear at the examination conducted  by  the  Board.  The  learned  single  Judge  had indicated that  the  said  order  is  being  passed  in  the peculiar circumstances  of the case without the matter being treated as  a precedent.  The  learned  Judge  also  further directed that  the question  of affiliation  to Devi Academy Educational Society,  Guruvayoor  will  be  decided  by  the Board. Writ Appeal No. 285/96 had also been preferred by the Board against  the order  of the  learned single Judge dated 7.2.1996 disposing  of O.P. No. 1566/96. In the said case on the basis  of the  order of  the learned  single  Judge  the students of  the non-affiliated  institution were allowed to sit  at  the  examination  and  further  they  were  granted

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certificates on  the basis  of the result of the examination with the  condition that  the same  will be  subject to  the result of  the O.P. The Writ Appeal No. 300/96 had also been preferred by  the Board  against the  interim order  of  the learned single Judge dated 31.1.1996 by which order the High Court  had   permitted  the   students  of   appear  at  the examination conducted by the Board and then further directed that the  certificates granted  should be  attached  to  the condition that the same will be subject to the result of all the pending  proceedings. The  two original  petitions  have been preferred  by 23  petitioners praying  therein that the certificate that  has been  issued in  their favour with the condition that  it would be subject to the final decision of the pending  proceedings should  be modified and they should be granted  fresh certificates.  All these  appeals and  the original petitions were disposed of by the impugned judgment of the  Kerala High Court, wherein the Division Bench of the Kerala High  Court taking  a sympathetic  and  compassionate view of  the matter  and being  of the opinion that students who have  been permitted  to take  admission  and  who  have appeared in  the examination should not be allowed to suffer and  accordingly   modified  conditions   attached  to   the certificate and  also directed  that the  students  who  ave taken written  examination for  the 10th and 12th classes in the institution  - Sree  Narayana Vidhya  Bhavan, Thrissur - should be  granted certificates  pursuant to the declaration of the  result of  the  examination  and  result  should  be announced within one week and the certificates to be granted pursuant to  the result should not impose any restriction as has been  done in  other cases. Similar directions were also issued in  other  writ  appeals  as  well  as  the  original petitions filed before the Division Bench.      There is no dispute that the institution in which these students had pursued their studies have not yet received any affiliation from  the Central  Board of Secondary Education, who is  the appellant  in these appeals. Under  the bye-laws of the  Board only  regular students  of affiliated  schools with the  Board are  entitled to  appear  in  the  Secondary School  Examination   and  the   Senior   Secondary   School Examination conducted  by the  Board. Since the institutions in which  the respondents  - students  have prosecuted their studies are  admittedly not  affiliated to the Board but the students have  been allowed  to appear  at  the  examination pursuance to  the interim  direction  of the court, which is in contravention  of the Rules and Regulations of the Board, the question  that arises for consideration is : whether the High Court was justified in issuing these impugned directions ?  This question  no longer  remains res integra. This Court  in several  cases  deprecated  the  practice  of allowing   students   to   appear   provisionally   in   the examinations  of  the  Board  or  the  University  and  then ultimately regularising  the same  by taking  a  sympathetic view of  the matter.  In the case of A.P. CHRISTIANS MEDICAL EDUCTIONAL SOCIETY  v.  GOVERNMENT  OF  ANDHRA  PRADESH  AND ANOTHER, (1986)  2 SCC  667, this  Court held that the court will not be justified in issuing direction to the University to protect  the  interest  of  the  students  who  had  been admitted to  the medical  college in  clear transgression of the provisions  of the University Act and the regulations of the University.  It was  also observed that the court cannot by its  fiat direct the University to disobey the statute to which it  owes its existence and the regulations made by the University itself  as that  would be destructive of the rule of law. In the case of the STATE OF TAMIL NADU & ORS. v. ST. JOSEPH TEACHERS  TRAINING INSTITUTE  & ANR.,  JT 1991 (2) SC

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343, this   Court  held  that  the  direction  of  admitting students  of   unauthorised  educational   institutions  and permitting them to appear at the examination has been looked with disfavour and the students of unrecognised institutions who are  not legally  entitled to  appear at the examination conducted by  the Education  Department  of  the  Government cannot be  allowed to  sit at  the examination  and the High Court  committed   error  in  granting  permission  to  such students to  appear at  the public  examination.  All  these cases were  again considered by  a three Judge Bench of this Court in  the case  of the  STATE OF  MAHARASHTRA  v.  VIKAS SAHEBRAO ROUNDALE  & ORS.,  JT 1992  (5) SC. 175, and it was held that  the students  of  unrecognised  and  unauthorised educational institutions  could not  have been  permitted by the High  Court on  a writ petition being filed to appear in examination   and   to   be   accommodated   in   recognised institutions. The Court ultimately struck down the direction issued by  the High  Court. In  yet another case, GURU NANAK DEV UNIVERSITY  v. PARMINDER KR, BANSAL AND OTHERS. (1993) 4 SCC 401,  another three Judge Bench of this Court interfered with the  interim order  passed by  the High  Court to allow students to  undergo internship  course even without passing the MBBS examination. The Court observed:      "We are  afraid that  this kind  of      administration   of   interlocutory      remedies, more  guided by  sympathy      quite often  wholly misplaced, does      no  service  to  anyone.  From  the      series of  orders that  keep coming      before us  in academic  matters, we      find  that   loose,   ill-conceived      sympathy       masquerades       as      interlocutory   justice    exposing      judicial    discretion    to    the      criticism  of   degenerating   into      private   benevolence.    This   is      subversive of  academic discipline,      or whatever  is left of it, leading      to  serious   impasse  in  academic      life. Admissions  cannot be ordered      without regard  to the  eligibility      of  the  candidates.  Decisions  on      matters relevant  to be  taken into      account at  the interlocutory stage      cannot be deferred or decided later      when  serious  complications  might      ensue  from   the   interim   order      itself. In  the present  case,  the      High Court  was apparently moved by      sympathy for the candidates then by      an accurate  assessment of even the      prima facie  legal  position.  Such      orders cannot  be allowed to stand.      The  courts  should  not  embarrass      academic authorities  by themselves      taking over their functions."      On the  admitted position  and in  view of the law laid down by  this Court,  referred to  above, Mr.  Altaf  Ahmed, Addl.  Solicitor   General,  appearing  for  the  appellants contended that  the impugned  direction of the High Court is wholly  erroneous  and  cannot  be  sustained.  The  learned counsel appearing  for the students in different appeals did not dispute  the position  that the schools from where their clients have perused their studies are not yet affiliated to the Central  Board of  Secondary Education.  But they mainly

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contended that  the students having been permitted to appear at the  examination and  they  having  been  successful  and certificates have been issued in their favour, it would work out great  injustice, if the impugned directions of the High Court are  set aside  at this  length of time. In support of this contention they placed reliance on a recent decision of this Court  in  the  case  of  CENTRAL  BOARD  OF  SECONDARY EDUCATION v.  NIKHIL GULATI  AND ANOTHER,(1998)  2 SCC 5. In the aforesaid  case,  this  Court  deprecated  the  practice followed by  the High  Court to  issue  direction  and  also observed that  such aberrations  should not  be treated as a precedent in  future but did not interfere with the ultimate direction of  the High  Court on the ground that found hopes have been  raised in the minds of the students and therefore it would  be inappropriate to interfere under Article 136 of the Constitution. We are unable to apply the reasoning given in the  aforesaid case,  inasmuch as  there is  no  iota  of material placed   before  us to  indicate that  the  Central Board of  Secondary Education, the appellants herein, either directly or  indirectly had  held out to the students at any point of  time that  the  institutions  in  which  they  are prosecuting their  studies have been affiliated or are going to be  affiliated at  a near future. We are conscious of the fact that out order setting aside the impugned directions of the High  Court would cause injustice to these students. 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 ave  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 students.  In view  of the aforesaid premises,  we set  aside the  impugned judgment of the Division  Bench of  the Kerala High Court as well as the interim  orders  issued  by  the  single  Judge  in  several petitions out  of which the writ appeals arose and t he writ petitions filed  by the  respondents stand  dismissed. These appeals are  allowed but  in the circumstances there will no order as to costs.