KRISHNA CHANDRA PRASAD SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr.A.S.Choudhury, learned counsel for the petitioner and Mr. Sharrna, learned Central Govt. Standing counsel. Let a Rule issue calling upon the respondents to show cause as to why a writ should not be issued as prayed for : or why such further or other orders should not be passed as to this Court may seem fit and proper. The rule is made returnable within 4 (four) weeks. Extra copies of the petition be served on Mr. Sharma who accepts notice on behalf of the respondent No. 1, 2 and 3. Notices on behalf of the respondents No.4 and 5 shall be accepted by Mrs. Yadav, learned Govt. Advocate, Extra copies of the petition be served oh her. In the prayer for interim orders, Mr. Choudhury, learned counsel for the petitioner, states that in this Case the petitioner's son has been sent back from the School to the parents on the allegation that the proof of domicile submitted by the petitioner has been found to be false as would be evident from the letter dated 05.01.95 of the officiating Principal of Sainik School. (Annexure - 14). Mr. Chowdhury submits that the said allegation that the petitioner has submitted false proof of domicile is totally baseless as two other sons of the petitioner are also studying in the Assam Engineering Institute at Guwahati as the petitioner is a domicile of State of Assam. Mr. Chowdhury has also brought to my notice paragraph-6 of the printed sample agreement form executed between the Governing Body of the School and the parents of students admitted into the School which would show that if after admission of a student, proof of domicile is found to be false, some money only is to be recovered and there is no provision in the agreement for withdrawal of a student. Mr. Chowdhury further submits that on the other hand, paragraph 7 of the said agreement would show that withdrawal of the student is permissible only if the student is found medically unfit in any way According to Mr. Chowdhury therefore, the petitioner has as strong prime-facie case and balance of convenience requires that interim orders be passed directing the respondents to allow the petitioner to continue his studies during the pendency of the Civil Rule and if no such interim order is passed the petitioner's son Gyan Prakash shall suffer irreparable injury. Mr. Sharma, learned Central Govt. Standing Counsel, on the other hand, submitted that the main relief sought by the petitioner in the writ petition is a direction on the respondents to take back the petitioner's son into the school and to allow him to continue studies in the school and if the interim order as prayed for by Mr. Chowdhury is passed, the main relief itself would be granted by the court. Mr. Sharma cited decisions of the Apex Court reported in AIR 1985 SC 330 and AIR 1985 SC 1289 wherein the Supreme Court has deprecated the practice of granting interim orders which practically have the effect of giving the principal relief sought in the petition. Mr. Sharma also relied on the decision of the Supreme Court in (1994) 6 SCC 1 Mr. Sharma further submits that since admittedly petitioner's son has been sent back from the School to his parents on 21.01.95, interim orders should not be passed directing the respondents to take back the student into the school to allow him to pursue his studies.

(2.) I have carefully applied nay mind to the decisions cited by Mr. Sharma in support of his aforesaid contention. In the case of Assistant Collector of Central Excise, Chandan Nagar-Vs-Dunlop India Ltd. AIR 1985 SC 330. Chinnappa Reddy J. has held that there can be no hard and fast rule regarding passing of interim orders and what is called for is prudence, discretion and circumspection section He has further held that apart from the existence of prima-facie case, the question of balance of convenience and irreparable injury have to be taken into consideration before passing such orders, In the case of State of Rajasthan-Vs-M/s Swaika Properties (AIR 1985 SC 1289). A.P Sen J has observed that the powers of the High Court under Article 226 of the Constitution are far and wide and Judges must ever discretion and circumspection section. He has further held that apart from the existence of prima-facie case, the question of balance of convenience and irreparable injury have to be taken into consideration before passing such orders, In the case of State of Rajasthan-Vs-M/s Swaika Properties (AIR 1985 SC 1289). A.P Sen J has observed that the powers of the High Court under Article 226 of the Constitution are far and wide and Judges must ever be vigilent to protect the citizen against arbitrary action, nonetheless Judges have a constructive role and therefore there is always the need to use such extensive powers with due circumspection, Similarly in State of U.P.-Vs- Ramona Perhar (1994) 6 SCC the Apex Court has held that the power to grant interim order is coupled with the duty to consider all relevant facts and legal principles in that behalf. Further, the aforesaid judgment of the Supreme Court in the Dunlop India Ltd. Case (supra) has been passed in a matter relating to Central Excise and has no application to a case where an interim order for allowing a student to pursue his studies during the pendency of the Civil Rule has been prayed. Similarly, the judgment of the Apex Court in the case of M/s. Swaika Properties (Supra) is a case where the Apex Court found that the High Court passed interim orders in a matter in which it did not have territorial jurisdiction. Finally the judgment of the Apex Court in the case of Ramona Perhar (supra) the Apex Court it has made the observation in the context of the interim orders passed with regard to the admission into an educational institution where the High Court ought to be very cautious while passing interim orders. So far as the present case is concerned, the fact that the two other sons of the petitioners are studying in Engineering Institute at Guwahati and have been allowed to continue without any objection to proof of domicile of the petitioner in the State of Assam raises a strong prima facie case in favour of the petitioner and the termination of the admission of his son in the Sainik School on the ground that his father is not a domicile in the State of Assam needs examination by this Court. Further it appears from paragraph-6 of the agreement, copy of which is annexed to the writ petition as Annexure-17, that where proof of domicile is found to be false no action can be taken for with drawal of the student from the School. In case no interim orders are passed for allowing the petitioner to continue his studies during the pendency of the Civil Rule there can be no doubt that the petitioner's son will suffer irreparable injury. Similarly, the balance of convenience is heavily in favour of a direction on the respondents to allow the petitioner's son to pursue his studies, as the comparable inconvenience that the petitioner's son will suffer by remaining out of the School far outweighs the inconvenience if any, which the school may " have to suffer if he is allowed to continue his studies during the pendency of the Civil Rule.

(3.) For the aforesaid reasons, I direct as an interim measure that until further orders the respondents shall allow the son of the petitioner Shri Gyan Prakash to continue his studies in Class-VI of Sainik School, Goalpara.