J.N. Bhatt, C.J.
1. In this Letters Patent Appeal under Clause 10 of the Letters Patent of the Patna High Court, the challenge is against the order dated 1.3.2007 passed in CWJC No. 2663 of 2007 of the learned. Single Judge.
2. We have heard the submissions of the learned Counsels appearing for the parties. Relevant proposition of law in the backdrops of the factual premises of the present case have also been considered.
3. The appellants are five original writ petitioners who initiated the legal battle by filing a petition under Article 226 of the Constitution of India to direct the respondent authority to permit the appellants - original writ petitioners and similarly situated persons to appear in All India Secondary School Examination ('AISSE') conducted by the Central Board of Secondary Education ('C.B.S.E.') commencing from the 2nd March, 2007 and for publication of their results. These appellants-original writ petitioners are the students of Kiddy Convent High School, Bairiya, Patna. They claim to have been admitted in the aforesaid school by the school management after passing Class IX examination in March, 2006 and, thereafter, in August and September, 2006, examination forms for the AISSE were sought to be filled up, at the school, which were sent to the CBSE along with the requisite fees for the examination. It is the case of the appellants original writ petitioners that till 25th February, 2007, admit cards of 80 other students were issued and the guardians of these appellants - writ petitioners were assured that their admit cards will be issued very shortly, but, they were finally informed, on 27.2.2007, that the Admit cards of the rest of the students cannot be issued as registration of the students was in excess of the sanctioned strength limit and the registration of the students cannot be made in excess of it in view of the direction of the CBSE.
4. We have, also, examined the impugned order on merits.
5. Let, at this stage, first, there be articulation of the following aspects which are no longer in controversy:
(i) the school was granted affiliation under 'Affiliation Bye-Laws' of the C.B.S.E. for the Period, from 1.4.2005 to 31.3.2008, with certain conditions and limiting the number of students upto 80;
(ii) the appellants - original writ petitioners have not been able to show the requisite material that they came to be admitted during this period on valid affiliation granted by the CBSE;
(iii) there was no affiliation by the CBSE in respect of the said school for the period from 1.4.2004 to 31.3.2005.
6. The appellants - original petitioners were admitted either during this period (i.e between 1.4.2004 and 31.3.2005) or, as alleged, some of them were admitted in the school in excess of the sanctioned number of students granted by the CBSE. In either case, it cannot be said that any student, in absence of the affiliation during the aforesaid period, and subsequently, though admitted during the period of affiliation, but not within the requisite strength granted by the CBSE, would have any right or legitimate interest which could be violated.
7. On repeated pointed questions as to how many students, out of five original writ petitioners - appellants, fulfil criteria prescribed by the CBSE, indicating the year and number, than the strength of 80 students, there was no positive response for the reasons not far to seek.
8. It is in these context when a right has not been matured and when no interest is created in favour of an individual or an institution, where would arise the question of redressal of such grievances?
9. The provisions of Article 226 of the Constitution of India are prerogative and discretionary, which should be exercised to advance cause of justice and not to retard it. The judicial review empowerment to the High Court under Article 226 of the Constitution of India can never be permitted to be used by any person who has mission to perpetuate the provisions of law. This Court, as such, in a writ petition, is required to, first, examine what is the nature of right and thereafter, to consider whether any such infraction or violation of right is made and thereafter discretion has to be exercised.
10. The learned Single Judge has dismissed the writ petition on the ground that the original writ petitioners - appellants were never registered even after grant of affiliation, as such there would not arise the question of permitting them to appear in the examination and, more so, in absence of issuance of the Admit Card in favour of the students by the CBSE.
11. Learned Counsel for the CBSE has pointed out, upon instruction, as gathered from the record, that issuance of admit cards by the CBSE came to be refused on the ground of there being no valid registration as in most of the cases, students were admitted during the period when affiliation was discontinuing.
12. It is the settled proposition of law that in absence of requisite affiliation, or recognition or, issuance of Admit card to the students admitted beyond the sanctioned strength prescribed by the CBSE, even if the education is imparted or examinations are conducted, the Writ Court should not interfere in exercise of constitutional writ jurisdiction under Article 226 for issuing directions in favour of such students.
13. No doubt, it would be a pitiable situation for the students. The guardians and parents ought to have checked up unwarranted and undesirable intention of the management of the school, who, presumably, for earning purposes treating education as a business were admitting the students beyond the sanctioned strength even during the time of affiliation and, thus, are prima facie responsible for such unfortunate episode which plays with the life of promising boys and girls. Would it be sufficient to consider to condone the lapse which are not recognizable in law? The positive answer would be in the negative. The judicial review is a very potent and powerful armoury in the administration of law and justice which is meant for ameliorating and helping the person done injustice by appropriate direction to the accountable and errant officers or authorities.
14. Neither institution can claim any relief nor management of the school, much less, the persons like the appellants - original writ petitioners who are not entitled to be issued Admit Cards as it would, first, tantamount to the violation of the condition of affiliation made by the CBSE. Most of the persons, out of these five students, who came to have been admitted during the period when there was no affiliation. Unfortunately, as ill luck would have been since so many years a very pious and noble mission of education is misused as business in the State of Bihar. This cry is raised not only in our this judgment but in other judgments passed earlier and also in some of the judgments of the Hon'ble Apex Court. Institutional educational activities have become notorious for bad gain. They play with the life of the promising students. In such a situation, the judicial review under Article 226 of the Constitution cannot be permitted to be used. The view which we have taken at this juncture is very much reinforced by the following decisions:
(i) Muthu Kumar and Anr. v. State of Tamil Nadu and Ors. : AIR2000SC3084 ;
(ii) Arajkiya Khwaja Sahid Hussain Primary Teacher Training College v. The State of Bihar and Ors. 2005 (4) PLJR 607
(iii) Minor Sunil Oraon Tr. Guardian and Ors. v. CBSE and Ors. 2007 (1) PLJR 69 (SC).
15. After having taken into consideration the facts and circumstances and the relevant proposition of law, as well as, the case laws and the Affiliation Bye-Laws and the recognition period of the school in question for certain time, for a limited students of 80, as well as fact profile of the case, we have no hesitation in finding that the present Letters Patent Appeal is absolutely meritless and deserve to be dismissed finally as we have taken up this matter for final hearing upon joint request, of the parties.
16. The learned Senior counsel Mr. Ganesh Prasad Singh, while appearing for the appellants - original writ petitioners, also, submitted that the institution has committed and acted mala - fide and, therefore, the students should be permitted to take action for the loss of their academic year and resultant loss. It is for the appellants - original petitioners to pursue the legal redressal available under the law and as and when such redressal is sought, the same shall be decided by the competent court in accordance with law.
17. This appeal shall, accordingly, stand dismissed.
18. No costs.