http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (civil)  4190 of 2007

PETITIONER: Sunil Kumar Parimal & Anr

RESPONDENT: The State of Bihar & Ors

DATE OF JUDGMENT: 11/09/2007

BENCH: H.K. Sema & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T [Arising out of Special Leave Petition (C) No.3145 of 2007]

Lokeshwar Singh Panta, J.

1.      Special leave granted.

2.      This appeal, by special leave, has been preferred by the  appellants against the judgment and order dated 24.01.2007  of a Division Bench of the High Court of Judicature at Patna  by which L.P.A. No. 697/2006 filed by the appellants was  dismissed and thereby the order of the learned Single Judge  dated 12.09.2006 dismissing the C.W.J.C. No. 8091/2006 of  the appellants came to be affirmed.   3.      The facts in brief giving rise to the filing of this appeal are  as follows:-         Tirhut Physical Education College, Muzaffarpur\026  respondent No. 7 (hereinafter referred to as \023respondent\026  College\024) was established in the year 1938.  The State of Bihar  \026respondent No. 1 (for short \023respondent-State\024) by  Notification No. 25 dated 6.11.1993 granted permission to the  respondent\026College to enroll one hundred students in C.P. Ed.  and one hundred students in D.P. Ed. Courses for the  Sessions 1993-94 to 1995-96.   4.      Sunil Kumar Parimal \026 appellant No. 1 herein claims to  be a first class post-graduate in Geography from Mithila  University.  He was enrolled in the respondent\026College in C.P.  Ed. Course for the academic session 1993-94.  He completed  his C.P. Ed course in March, 1995.  His name was sent by the  respondent\026College for appearing in the examination to be  conducted by the Bihar School Examination Board, Bihar,  Patna\026respondent No. 4 (hereinafter referred to as the  \023respondent\026Board\024).   5.      Shiv Shankar Roy\026appellant No. 2 is a Graduate in  Commerce from Mithila University.  He took admission to the  D.P. Ed. course for the academic session 1995-96.  He  completed his course in March, 1996.  The name of appellant  No. 2 was also sent by the respondent\026College to the  respondent\026Board for taking the examination.  However, no  examination was conducted by the respondent-Board who is  entrusted the responsibility of holding the examination for the  said courses by the respondent-State.   6.      The appellants and other similarly placed candidates  along with the Principal of the respondent-College, made  several representations requesting the respondent-authorities  to take the examinations of C.P. Ed and D.P. Ed. courses for  the academic sessions 1994-95 and 1995-96.  It appears that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

on 26.11.1998, the Deputy Secretary (Art, Culture and Youth  Department), Government of Bihar, wrote a letter to the  Secretary of respondent\026Board, directing the latter to conduct  the postponed examination of the students of C.P. Ed and D.P.  Ed for the academic sessions 1994-95 and 1995-96.  It is the  case of the appellants that on 18.12.1999,   the Department of  Art, Culture and Youth Affairs, Government of Bihar  forwarded the list of the students to the respondent\026Board  who had to appear in the examination of C.P. Ed and D.P. Ed  from respondent\026College for the sessions 1994-95 and 1995- 96.  On 26.06.2001, the respondent-Board wrote a letter to the  Deputy Secretary (Art, Culture & Youth Affairs Department),  Government of Bihar, in which it was stated that the list of the  candidates of two colleges, namely, respondent\026College and  Urs Line Women Physical Education College, Lohardugga, had  been received but the list of candidates of remaining three  colleges was not received which was requested to be sent so  that steps to hold the examination collectively could be taken.   After it was learnt that the respondent-Board was  contemplating to hold the examination for the said courses in  the month of November, 2002, the students made  representation to the respondent\026State and a copy thereof was  forwarded to the respondent-Board requesting the authorities  to allow them to appear in the examination likely to be  conducted in November, 2002. 7.      It appears that on 5.10.2002 the Deputy Secretary (Art  Culture and Youths Department) wrote one more letter to the  respondent\026Board asking the Examination Committee of the  Board to conduct the examination of students of C.P. Ed and  D.P. Ed courses who were enrolled by the respondent\026College  for sessions 1994-95 and 1995-96 along with examination of  students of Government Health and Physical Training College,  Bihar, Rajendra Nagar, Patna.  Again on 8.10.2002, the  Principal of the respondent-College wrote a letter to the  Secretary of the respondent-Board bringing to his notice the  sad and miserable plights of the students of C.P. Ed and D.P.  Ed. courses who were to appear in the examination for the  academic sessions 1994-95 and 1995-96.  He also requested  the Secretary to permit those students to appear in the  examination with the students of Government Health and  Physical Education College, Rajendra Nagar, Patna.  It appears  from the record that in November, 2002 the respondent-Board  had conducted examinations for C.P. Ed and D.P. Ed courses  for the students of Government Health and Physical Education  College, Rajendra Nagar, Patna, but it did not allow the  students of the respondent\026College to take the examination.   In the year 2006, when the appellants again came to know  that the respondent-Board was contemplating to conduct  examination of C.P. Ed and D.P. Ed courses for the students of  Government Health and Physical Education College, Rajendra  Nagar, Patna, and also former students of Koshi Physical  Education College, Madepura, they immediately approached  the Principal of the respondent\026College, who informed them  that the candidates of their institution were debarred by the  respondent-Board  from taking the examinations. 8.      The appellants left with no other alternative remedy  but  to approach the High Court on 17.8.2006 by means of  C.W.J.C. No. 8091/2006 seeking a writ of mandamus against  the State of Bihar\026respondent No. 1,  Joint Secretary (Art,  Culture and Youth Affairs Department), Government of Bihar\026  respondent No. 2,  Director (Art, Culture and Youth Affairs  Department), Government of Bihar\026respondent No. 3, Bihar  School Examination Board\026respondent No. 4, Chairman,  Bihar School Examination Board\026respondent No. 5, Secretary,  Bihar School  Examination Board\026respondent No. 6 and Vice

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

Principal, Tirhut Physical Education College\026respondent No. 7,  to allow them to appear in the examination and thereafter  publish their result.  The appellants filed IA No. 3323/2006  praying for an interim direction to the respondent\026State to  consider their applications for the posts of Physical Training  Teachers during ensuing recruitment.  The learned Single  Judge on 19.8.2006 directed the respondent-State to consider  the said request of the appellants. 9.      On 12.09.2006, learned Single Judge dismissed the writ  petition of the appellants primarily on the ground that on and  with effect from the day of enforcement of the National Council  for Teacher Education Act, 1993, the respondent\026College was  de-recognised and as a result thereof the respondent\026Board is  not competent to allow the students to appear in the  examination, who is pursuing or has pursued the course in a  non-recognised institution.  10.   Being aggrieved by the order of the learned Single Judge,  the appellants preferred Letters Patent Appeal No. 697/2006  before the Division Bench of the High Court.  The Division  Bench, as stated above, dismissed the LPA on 24.01.2007.   Hence, the appellants are before this Court by way of this  appeal. 11.     This Court on 26.02.2007 ordered issue of notice to the  respondents made returnable within two weeks.  In response  to the notice,  Shri Janardhan Prasad Singh, Deputy Director  (Youth Affairs) Department of Art, Culture and Youth Affairs,  Government of Bihar\026respondent No. 4 has filed counter  affidavit in which it is fairly admitted that the National Council  for Teacher Education Act, 1993 (hereinafter referred to as the  \023NCTE Act\024) will not be applicable to the students who had  completed their courses before the enforcement of the Act, and  the provisions of clause B of Section 16 of the NCTE Act will  not apply with regard to examination of those candidates who  have completed their courses from a recognized institution  before the commencement of the Act.  It is next submitted that  for the purpose of conducting the timely examination for the  courses of C.P. Ed and D.P. Ed, the list of students of the  respondent \026 College for the sessions of 1994-95 and 1995-96  was sent to the Secretary of respondent-Board vide letter No.  386 dated 18.12.1999 followed by reminder letter no. 646  dated 05.10.2002 with clear instructions to conduct the said  examination.  It is also stated that vide letter No. 137 dated  24.10.2002 the Secretary to the respondent\026Board informed  the Department that as the said list of the candidates was not  verified, therefore, the examination could not be conducted  without proper verified list.   The Deputy Director in the  counter affidavit has categorically stated that the Department  of Art, Culture and Youth Affairs is not the verifying authority.  The deponent stated that the recognitions of all Physical  Training Colleges have been cancelled with retrospective effect  vide Department\022s order dated 13.04.2004. 12.     Shri Raghavendra Nath Tiwary, Law Officer in the  respondent\026Board has filed joint counter affidavit on behalf of  the Chairman and the Secretary of the respondent\026Board.   The stand projected in the counter is that vide Memo No. 382  dated 13.4.2004, the Department of Art, Culture and Youth  Welfare of the respondent\026State has cancelled the recognition  of the respondent\026College and the respondent-Board will  conduct department examinations  including diploma in  Physical Education/Certificate in Physical Education in terms  of Rule 7 of the Bihar School Examination Board Rules, 1963  on such terms and conditions, as may be laid down by the  State Government.  The respondent-Board has stated that the  appellants could not be permitted to take examination in the  year 2004 because by that time the recognition of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

respondent\026College was cancelled. 13.     It appears from the record that on 23.07.2007, this Court  passed the following order: \023After hearing learned counsel for the  parties, it is seen that by a letter dated  05.10.2002 addressed to the Secretary,  Bihar School Examination Committee,  Patna, the State Government has  requested that the examination of  neglected students of C.P. Ed. and D.P.  Ed. of Tirhut Physical Training College,  Muzaffarpur belonging to the Sessions  1994-94 to 1995-96 be conducted with  Government Health and Physical Training  College, Bihar, Rajendra Nagar, Panta.

Mr. M.P. Jha, learned counsel appearing  for the Board, shall receive a definite  instruction as to what action has been  taken pursuant to the aforesaid letter.   He shall also receive a definite instruction  as to any impediment in holding the  examination in respect of the petitioners,  namely, Sunil Kumar Parimal and Shiv  Shankar Roy.

14.     In pursuance to the above said order, respondent Nos. 4  to 6  have filed joint additional affidavit stating therein that the  Chairman of the respondent-Board wrote a letter No. K-137  dated 24.10.2002 to the Secretary to respondent\026State  requesting him to send the verified list of students but till  date, no verified list of students was sent by the Department  and as such, the students of the respondent-College could not  appear in the examination held by the respondent-Board.   It  is also stated that the respondent-Board before holding the  examination in the year 2006, has also requested the  Department of Art, Culture and Youth, Government of Bihar,  to send the details of eligible colleges, but till date, no such  details of the eligible colleges have been sent by the  Department.   15.     The appellants in the rejoinder affidavit filed to the  additional affidavit of respondent Nos. 4 to 6, have stated that  the contents of the additional affidavit filed by the respondent  Nos. 4 to 6 are misleading and contrary to the stand of the  respondent\026State.  They stated that in spite of repeated  requests of the concerned Department of the respondent- State, the respondent-Board has miserably failed to discharge  its function, as a result thereof, the appellants have suffered  for no fault on their part.  16.   We have heard learned counsel for the parties and  perused the material on record. 17.     In the backdrop of the pleadings of the parties and  documents appearing on record, the undisputed facts  emerging therefrom are that both the appellants took their  admission in C.P. Ed. and D.P. Ed. courses for the sessions  1994-95 and 1995-96 in the recognised respondent-College.   The examinations for the said courses were to be held by the  respondent-Board.  The respondent-Board has not taken any  steps to discharge its obligation and responsibility of holding  the examinations for the sessions 1994-95 and 1995-96.  On  18.12.1999, the Department of Art, Culture and Youth Affairs,  Government of Bihar, forwarded a list of the eligible students  who were to appear in the examination of C.P. Ed and D.P. Ed.  courses from different Colleges in the State of Bihar for the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

academic sessions 1994-95 and 1995-96 to the respondent\026 Board.  The Secretary to the respondent\026Board on 26.06.2001  wrote a letter to the Deputy Secretary, Department of Art,  Culture and Youth Affairs, which reads as under:- \023You have made the recommendation to  hold the examination of five colleges, out  of the above, list of the candidates of two  colleges, namely:

 1. Tirhut College of Physical Education,  Muzaffarpur

2.      Urs Line Women Physical Education  College, Lohardugga.

List of the remaining three colleges has  not been sent as yet.

Thus, it is again requested as per the  directions that send the list of the  candidates of remaining three colleges be  sent so that steps to hold the  examination collectively could be taken.\024

18.     In reply to the above-said letter, the Deputy Secretary  (Art, Culture and Youth Affairs Department), Government of  Bihar, vide letter No. 19/12/98\026Youth dated 5.10.2002  requested the Examination Committee of the respondent- Board to conduct the examination for students of C.P. Ed. and  D.P. Ed. course of the respondent\026College along with the  examination proposed to be held for the students of  Government Health and Physical Training College, Bihar,  Rajendra Nagar, Patna.  The Principal of the respondent\026 College on 8.10.2002 also wrote a letter to the Secretary of the  respondent\026Board bringing to his notice the sad and miserable  plight of the appellants and other students of the C.P. Ed. and  D.P. Ed.  courses for academic sessions 1994-95 and 1995-96  and requested the Examination Committee of the respondent\026 Board to conduct the examination of those students along  with the examination likely to be conducted for the  Government Health and Physical Education College, Rajendra  Nagar, Patna.  The respondent-Board in November, 2002  conducted the examinations for C.P. Ed. and D.P. Ed. courses  for the students of Government Health and Physical Education  College, Rajendra Nagar, Patna, but it refused to admit the  appellants and other students to take the examinations.   19.      It appears from the record that Memo No. 1172 dated  31.10.2006 was sent by Shri Rama Shankar Tiwari, Secretary  (Art, Culture and Youth Affairs Department) to the  Government of Bihar, to the Secretary, Bihar School  Examination Board, which reads as under:-  \023With reference to your aforesaid subject  letter NO. 411 dated 26.06.2001, it is to  say that the list of sent-up students of  C.P. Ed. and D.P.Ed. coruse of Tirhut  Physical Training College, Muzaffar for  the session 1994-95 to 1995-96 was sent  for conducting examination vide  departmental letter-386 dated  18.12.2001 of whose examination has not  been conducted till date.

Therefore, it is requested that the  examination of sent-up students of C.P.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

Ed. and D.P. Ed. course of Tirhut  Physical Training College, Muzaffar for  the session 1994-95 to 1995-96 be  conducted along with State Health and  Physical Training College, Rajendra  Nagar, Bihar, Patna.\024

20.   Despite clear and categorical instructions and repeated  suggestions by the Deputy Secretary (Art, Culture and Youth  Affairs Department), Government of Bihar, vide letter  No.19/12/98-Youth dated 5.10.2002 and also by the  Secretary of the concerned Department in terms of Memo  No.1172 extracted hereinabove, the respondent-Board has  failed to discharge its function and responsibility of holding  the examination entrusted to it by the State Government,  which has resulted in irreparable loss to the appellants.   The  respondent-Board has not given any plausible and tenable  explanation for debarring the appellants from taking  examination with the students of C.P. Ed. and D.P. Ed.  courses of the Government Health and Physical Training  College, Bihar, Rajendra Nagar, Patna.    

21.    In the above-noted peculiar facts and circumstances  of the case, we are of the opinion that it is a fit case where we   should not hesitate to exercise our jurisdiction under Article  142 of the Constitution of India to do complete justice to the  appellants to whom palpable injustice is shown to have been  done because of the sheer fault and inefficiency of the  respondent-Board, who, despite repeated requests of the State  authorities, did not take steps to admit the appellants to  appear in the examination till the respondent-College was de- recognised in terms of the provisions of the NCTE Act.  It is  again unfortunate that in spite of fighting a long legal battle  for vindicating their genuine and legitimate claims, the  appellants could not get any justice even from the court of law.    Thus, in our considered view, the order of the learned Single  Judge as affirmed by the Division Bench of the High Court  holding that the respondent-College has since been de- recognised after the enforcement of the NCTE Act, therefore,  the appellants could not be granted the permission to take  examination of the C.P. Ed. and D.P. Ed. courses from the  unrecognized institution, is erroneous and untenable.  The  NCTE Act came into force with effect from 17.08.2005 and its  provisions will be applicable prospectively to those students  who have undertaken examination after 17.08.2005 from  recognised institution.  The respondent-College has lost its  recognition only with effect from 17.08.2005 when the NCTE  Act was enforced and before that date, the respondent-College  was duly recognised institution by the State Government.   Therefore, the finding and reasoning of the High Court holding  the appellants not eligible to appear in the examination of C.P.  Ed. and D.P. Ed. courses from the respondent-College are not  based on proper appreciation of facts of the case and  principles of law.   22.    We, in the interest of justice to the appellants, direct  respondent Nos. 1 to 6 to permit the appellants to appear in  the examination for the courses of C.P. Ed. and D.P. Ed. for  the sessions 1994-95 and 1995-96 to be conducted by the  respondent-Board on the next available opportunity in the  near future and thereafter the result of the appellants shall be  declared without loss of further time.   23.     For the reasons afore-stated, the impugned judgment  and order dated 24.01.2007 of the Division Bench of the High  Court in LPA No. 697/2006 upholding the judgment and order

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

dated 12.09.2006 of the learned Single Judge passed in  C.W.J.C. No. 8091/2006 is not justified and cannot be  sustained in law.  It is, accordingly, set aside.  The appeal is  allowed accordingly.  The C.W.J.C. No. 8091/2006 filed by the  appellants in the High Court of Judicature at Patna shall  stand allowed.  However, the parties are left to bear their own  costs. 24.   We make it clear that the observations made by us are  only prima facie and tentative observations for the disposal of  this appeal and the same would not be construed as an  expression of opinion on the merits of any future proceedings  of any nature, if any, between the parties in this appeal.