Chand Ali and Etc. Etc. Vs. Mahesh Shikshan Sansthan and ors. - Court Judgment

Excerpt:
constitution of india - article 226--admission to b.ed during pendency of writ on undertaking that management would not be responsible for theory and practice of teaching conducted so far and consequences thereof--held petitioners cannot claim anything beyond it; (ii), question of fundamental right can not be reagitated as it involves certain questions of fact; (iii) undertaking is not an unconscionable contract and petitioners cannot wriggle out; (iv) change in date is a question of fact and cannot agitated in writ; and (v) difficult to dissect fees for course covered and course to be covered.;writ rejected - - it clearly appears that they had entered into the agreement with free will and now they cannot wriggle out of it. i am not persuaded to accept this contention also, inasmuch as, although the agreement had been entered into on 14-8-86 it was stipulated that the fees will have to be deposited between 20 and 22-8-86 that clearly goes to show that the agreement was to be effective from the date of deposit of the fees because unless the fees were deposited there was no question of admission and, therefore, the position which would be relevant for the parties would be the position when each of the admissions was actually made.orderk.s. lodha, j. 1. these 17 matters can conveniently be disposed of by a single order, although there is some difference between the seven cases and the rest of them so far as the date of admission is concerned and the condition on which the later admissions were made but all the same the principal question involved in all of them is the same.2. it appears that some admissions were made to the vacation course of b.ed. in the mahesh shikshan sansthan, non-petitioner no. 1 in all these cases on 12-5-86 and a waiting list of the remaining candidates was also published along with a list of students who has already been admittd. originally the number of seats was 180 and later on in july, 1986, 60 more seats were added and on that account some more persons were admitted later on. the admissions of those persons were challenged by seven of the petitioners in these writ petitions on the ground that the later admissions had been camouflaged with an intention to give admissions to the persons less meritorious than the petitioners choon singh, kesh ram, ram singh, hem raj, mithu singh, hanuman prasad and jai ram. various grounds of challenge were taken in the writ petitions, however, it appears that pending those writ petitions, an agreement wasarrived at between the non-petitioner no. 1 and those writ petitioners, according to which admission was sought to be granted to those petitioners to the b.ed. class vacation course of 1986-87 on the condition that the petitioners wouldnot raise any objecton with regard to the course already completed. it was further stipulated that the petitioners would deposit the fee between 20-8-86 and 22-8-86. this agreement was arrived at on 14-8-86 and in pursuance thereof the petitioners were granted admission on 20-8-86. the writ petitions were withdrawn.3. thereafter the other petitioners in these writ petitions also moved writ petitions challenging the earlier admissions and praying that admissions may be granted to them also. those writ petitions were, dismissed on the ground of delay but on appeals again a settlement appears to have been arrived at between the parties pending the special appeals and in pursuance thereof director of non-petitioner no. 1 gave an assurance to the effect that these appellants will be given admissions to the aforesaid course but the management shall not be responsible for the theory and practice of leaching so far conducted and consequences following therefrom. the students shall have to deposit fees by 6th of october, 86 and they shall not claim refund of the fees. on this assurance the division bench passed the following order in the special appeals : --'in view of the assurance so given, learned counsel for the appellants submit that no more grievance remains to the appellants. learned counsel appearing for the parties pray for the special appeals being allowed in terms of the submission made by shri s. m. balia, director, mahesh teachers college, jodhpur. the special appeals are allowed. the appellants will be given admission in b.ed. vacation course in the light of the terms mentioned in the assurance given in writing by shri s. n. balia, director, mahesh teachers college, jodhpur.' and in pursuance of this the appellants in those appeals were given admission on 6-10-86. it further appears that the position that these admissions were being given in pursuance of the aforesaid assurance and the order of the division bench was got noted on the application of each of the students who were so admitted under the note made by the director.4. now by the present writ petitions the petitioners contend that they should be given the full course of practice and teaching and related practical work and the non-petitioner college is under an obligation to make arrangement for the same despite the undertaking given by the petitioners in the aforesaid writ petitions/appeals.5. i have heard the learned counsel for the parties at some length.6. in my opinion, in face of the clear undertaking given by the students, the petitioners in these writ petitions, they cannot claim anything against the said undertaking. it has, however, been urged by the learned counsel for the petitioners that when the fundamental rights are involved the undertaking cannot be enforced against them and in this connection reliance has been placed upon olga tellis v. bombay municipal corpn., air 1986 sc 180. in my opinion this contention is now not open to the petitioners. the question of fundamental rights of the petitioners was involved in the earlier writ petitions and instead of taking decision of the court on that question, the petitioners entered into an agreement with non-petitioner no. 1 and secured admissions. the question of fundamental right in the present case on the ground of equality now cannot be re-agitated, specially because il does involve certain questions of fact. the authority relied upon by the learned counsel for the petitioners does not apply to the facts of this case because in that case the undertaking was given that the petitioners in the writ petitions would not claim any fundamental right to put up huts on payments or public roads. that right itself was not challenged and, therefore, later on when the huts were sought to be removed they were allowed to enforce that fundamental right. this is not the case here.7. it was then urged by the learned counsel for the petitioners that in any case the agreement under which admissions were granted to the petitioner is an unconscionable agreement or contract inasmuch as non-petitioner no. 1 is a mighty institution whereas the petitioners were much weaker in position seeking admissionsand such unconscionable agreement cannot be enforced against them. in this connection he placed reliance uponcentral inland water transport corpn. ltd. v. brojo nath ganguly, air 1986 sc 1571. this contention also does not appeal to me. the present agreement cannot be termed as an unconscionable contract between the parties, inasmuch as it had been entered into while the writ petitions or appeals were already pending, the petitioners had already moved the court for enforcing their so called fundamental rights and when they had already approached the court, they cannot be said to have been in a weaker position and non-petitioner no. 1 could not have forced upon them to enter into such an agreement. it clearly appears that they had entered into the agreement with free will and now they cannot wriggle out of it.8. it was also contended by the learned counsel for the petitioners that the agreement initially entered into between the seven petitioners who were admitted on 20-8-86 had been altered with an ulterior motive inasmuch as instead of getting the fees deposited from 14-8-86 to 22-8-86, the fees were made to be deposited between 20-8-86 and 22-8-86. the intention was that the petitioners may be deprived from the course which was being covered between 14-8-86 to 20-8-86 and was likely to be completed by that time. i am unable to accept this contention either. it cannot be said that the agreement dated 14-8-86 has been altered and that also with an ulterior motive. it is not the case of the petitioners that the date 14-8-86 in the original agreement dated 14-8-86 had been changed into 20-8-86 without the petitioners' consent. when both the parties were agreeable to this change, it does not amount to an alteration in the meaning of the term. so far as the question that it was with an ulterior motive to deprive the petitioners from the course which was undertaken between 14-8-86 and 20-8-86 goes, there is absolutely nothing to suggest in this respect. on the other hand, there appear documents on the record which go to show that despite the change in the date the petitioners who sought certain lessons under the course neither objected to this date being changed with such a motive. in any case it is a serious question of fact and cannot be allowed to be raised in these writ petitions.9. it was also contended by the learned counsel for the petitioners that the agreement had been entered into between seven of the petitioners and non-petitioner no. 1 on 14-8-86, therefore, it was envisaged that the position obtaining on that date will be adhered to and the course which was to be covered after 14-8-86 would be imparted to them. i am not persuaded to accept this contention also, inasmuch as, although the agreement had been entered into on 14-8-86 it was stipulated that the fees will have to be deposited between 20 and 22-8-86 that clearly goes to show that the agreement was to be effective from the date of deposit of the fees because unless the fees were deposited there was no question of admission and, therefore, the position which would be relevant for the parties would be the position when each of the admissions was actually made.10. the further contention of the learned counsel for the petitioners was that despite the fact that the petitioners had been given admissions at later stages, full fee has been charged from them for the whole course and this goes to show that the petitioners were to be imparted the full course. fee could not have been charged for the full course as a means of profit when full course was not sought to be imparted to the petitioners. this contention is equally devoid of force. in the first place it may be stated that when the first agreement was arrived at between the parties on 14-8-86 a clear term was placed that the petitioner would not raise any objection to the course already finished. in the same agreement it was also specifically staled that the fees will be deposited between 20-8-86 and 22-8-86. the petitioners could certainly have raised an objection at that stage that full fee could not be charged from them. no such objection was raised at that stage. on the other hand, in the later cases it was specifically agreed that no refund of fee shall be asked for. looked at from another point of view it may also be stated that a part of the course had already been covered by the non-petitioner no. 1 before the present petitioners were given admissions, and part of the course was still to be covered and for that fees had to he charged. it is difficult to dissect the fee in respect of the part already covered and the part to be covered and, therefore, also the mere charge of fees is not a ground to holdthat the petitioners were entitled to be imparted a full course despite the fact of their admissions in view of the undertaking given by them.11. in these circumstances, i do not find force in any of these writ petitions and the same are rejected summarily.

Judgment:
ORDER

K.S. Lodha, J.

1. These 17 matters can conveniently be disposed of by a single order, although there is some difference between the seven cases and the rest of them so far as the date of admission is concerned and the condition on which the later admissions were made but all the same the principal question involved in all of them is the same.

2. It appears that some admissions were made to the vacation course of B.Ed. in the Mahesh Shikshan Sansthan, non-petitioner No. 1 in all these cases on 12-5-86 and a waiting list of the remaining candidates was also published along with a list of students who has already been admittd. Originally the number of seats was 180 and later on in July, 1986, 60 more seats were added and on that account some more persons were admitted later on. The admissions of those persons were challenged by seven of the petitioners in these writ petitions on the ground that the later admissions had been camouflaged with an intention to give admissions to the persons less meritorious than the petitioners Choon Singh, Kesh Ram, Ram Singh, Hem Raj, Mithu Singh, Hanuman Prasad and Jai Ram. Various grounds of challenge were taken in the writ petitions, however, it appears that pending those writ petitions, an agreement wasarrived at between the non-petitioner No. 1 and those writ petitioners, according to which admission was sought to be granted to those petitioners to the B.Ed. Class vacation course of 1986-87 on the condition that the petitioners wouldnot raise any objecton with regard to the course already completed. It was further stipulated that the petitioners would deposit the fee between 20-8-86 and 22-8-86. This agreement was arrived at on 14-8-86 and in pursuance thereof the petitioners were granted admission on 20-8-86. The writ petitions were withdrawn.

3. Thereafter the other petitioners in these writ petitions also moved writ petitions challenging the earlier admissions and praying that admissions may be granted to them also. Those writ petitions were, dismissed on the ground of delay but on appeals again a settlement appears to have been arrived at between the parties pending the special appeals and in pursuance thereof Director of non-petitioner No. 1 gave an assurance to the effect that these appellants will be given admissions to the aforesaid course but the management shall not be responsible for the theory and practice of leaching so far conducted and consequences following therefrom. The students shall have to deposit fees by 6th of October, 86 and they shall not claim refund of the fees. On this assurance the Division Bench passed the following order in the special appeals : --

'In view of the assurance so given, learned counsel for the appellants submit that no more grievance remains to the appellants. Learned counsel appearing for the parties pray for the special appeals being allowed in terms of the submission made by Shri S. M. Balia, Director, Mahesh Teachers College, Jodhpur.

The special appeals are allowed. The appellants will be given admission in B.Ed. Vacation course in the light of the terms mentioned in the assurance given in writing by Shri S. N. Balia, Director, Mahesh Teachers College, Jodhpur.'

And in pursuance of this the appellants in those appeals were given admission on 6-10-86. It further appears that the position that these admissions were being given in pursuance of the aforesaid assurance and the order of the Division Bench was got noted on the application of each of the students who were so admitted under the note made by the Director.

4. Now by the present writ petitions the petitioners contend that they should be given the full course of practice and teaching and related practical work and the non-petitioner College is under an obligation to make arrangement for the same despite the undertaking given by the petitioners in the aforesaid writ petitions/appeals.

5. I have heard the learned counsel for the parties at some length.

6. In my opinion, in face of the clear undertaking given by the students, the petitioners in these writ petitions, they cannot claim anything against the said undertaking. It has, however, been urged by the learned counsel for the petitioners that when the fundamental rights are involved the undertaking cannot be enforced against them and in this connection reliance has been placed upon Olga Tellis v. Bombay Municipal Corpn., AIR 1986 SC 180. In my opinion this contention is now not open to the petitioners. The question of fundamental rights of the petitioners was involved in the earlier writ petitions and instead of taking decision of the Court on that question, the petitioners entered into an agreement with non-petitioner No. 1 and secured admissions. The question of fundamental right in the present case on the ground of equality now cannot be re-agitated, specially because il does involve certain questions of fact. The authority relied upon by the learned counsel for the petitioners does not apply to the facts of this case because in that case the undertaking was given that the petitioners in the writ petitions would not claim any fundamental right to put up huts on payments or public roads. That right itself was not challenged and, therefore, later on when the huts were sought to be removed they were allowed to enforce that fundamental right. This is not the case here.

7. It was then urged by the learned counsel for the petitioners that in any case the agreement under which admissions were granted to the petitioner is an unconscionable agreement or contract inasmuch as non-petitioner No. 1 is a mighty institution whereas the petitioners were much weaker in position seeking admissionsand such unconscionable agreement cannot be enforced against them. In this connection he placed reliance uponCentral Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571. This contention also does not appeal to me. The present agreement cannot be termed as an unconscionable contract between the parties, inasmuch as it had been entered into while the writ petitions or appeals were already pending, the petitioners had already moved the Court for enforcing their so called fundamental rights and when they had already approached the Court, they cannot be said to have been in a weaker position and non-petitioner No. 1 could not have forced upon them to enter into such an agreement. It clearly appears that they had entered into the agreement with free will and now they cannot wriggle out of it.

8. It was also contended by the learned counsel for the petitioners that the agreement initially entered into between the seven petitioners who were admitted on 20-8-86 had been altered with an ulterior motive inasmuch as instead of getting the fees deposited from 14-8-86 to 22-8-86, the fees were made to be deposited between 20-8-86 and 22-8-86. The intention was that the petitioners may be deprived from the course which was being covered between 14-8-86 to 20-8-86 and was likely to be completed by that time. I am unable to accept this contention either. It cannot be said that the agreement dated 14-8-86 has been altered and that also with an ulterior motive. It is not the case of the petitioners that the date 14-8-86 in the original agreement dated 14-8-86 had been changed into 20-8-86 without the petitioners' consent. When both the parties were agreeable to this change, it does not amount to an alteration in the meaning of the term. So far as the question that it was with an ulterior motive to deprive the petitioners from the course which was undertaken between 14-8-86 and 20-8-86 goes, there is absolutely nothing to suggest in this respect. On the other hand, there appear documents on the record which go to show that despite the change in the date the petitioners who sought certain lessons under the course neither objected to this date being changed with such a motive. In any case it is a serious question of fact and cannot be allowed to be raised in these writ petitions.

9. It was also contended by the learned counsel for the petitioners that the agreement had been entered into between seven of the petitioners and non-petitioner No. 1 on 14-8-86, therefore, it was envisaged that the position obtaining on that date will be adhered to and the course which was to be covered after 14-8-86 would be imparted to them. I am not persuaded to accept this contention also, inasmuch as, although the agreement had been entered into on 14-8-86 it was stipulated that the fees will have to be deposited between 20 and 22-8-86 that clearly goes to show that the agreement was to be effective from the date of deposit of the fees because unless the fees were deposited there was no question of admission and, therefore, the position which would be relevant for the parties would be the position when each of the admissions was actually made.

10. The further contention of the learned counsel for the petitioners was that despite the fact that the petitioners had been given admissions at later stages, full fee has been charged from them for the whole course and this goes to show that the petitioners were to be imparted the full course. Fee could not have been charged for the full course as a means of profit when full course was not sought to be imparted to the petitioners. This contention is equally devoid of force. In the first place it may be stated that when the first agreement was arrived at between the parties on 14-8-86 a clear term was placed that the petitioner would not raise any objection to the course already finished. In the same agreement it was also specifically staled that the fees will be deposited between 20-8-86 and 22-8-86. The petitioners could certainly have raised an objection at that stage that full fee could not be charged from them. No such objection was raised at that stage. On the other hand, in the later cases it was specifically agreed that no refund of fee shall be asked for. Looked at from another point of view it may also be stated that a part of the course had already been covered by the non-petitioner No. 1 before the present petitioners were given admissions, and part of the course was still to be covered and for that fees had to he charged. It is difficult to dissect the fee in respect of the part already covered and the part to be covered and, therefore, also the mere charge of fees is not a ground to holdthat the petitioners were entitled to be imparted a full course despite the fact of their admissions in view of the undertaking given by them.

11. In these circumstances, I do not find force in any of these writ petitions and the same are rejected summarily.