DIRECTOR VIDHYA BHAWAN SOCIETY Vs. NIRANJAN JHA

JUDGEMENT

(1.) VIDHYA Bhawan Rural Institute Udaipur is an Educational Institution located at Udaipur. Apart from Arts and Science Faculties, it also runs a three year Diploma course in Civil Engineering and for that purpose it is affiliated or connected with the Board of Technical Education Rajasthan Jodhpur. According to the syllabus of this institute for the academic -sessions 1985 -86 and 1986 -87 there are 45 seats in this Diploma course Out of these 45 seats, admission with respect to 32 seats is made by the Central Admission Committee of the Directorate of Technical Education Jodhpur. The procedure is that application for admission for these 32 seats are sent to the Principal, Government Polytechnic College, Ajmer and admission is made in accordance with the Rules prescribed by the Central Admission Committee. Remaining 13 seats in the institute are reserved seats. There are three categories of reservation namely, 4 seats are reserved for the children of the workers of the institute. Five seats are reserved for service centres prescribed by the institute and four seats are reserved for the students of first year of the academic session 1984 -85 of R.H.D. Faculty of the institute.

(2.) THE present case is a case where the petitioner Niranjan Jha son of Shri Surya Kant Jha aged 17 years had sought admission in three years' Diploma course in Civil Engineering run by this institute in academic session 1986 -87 in the reserved quota of five seats reserved for 'service areas' Jalore and Budgaon Panchayat Samitis which were prescribed as 'service areas' by the institute. One of the conditions for eligibility from 'service areas' as prescribed in the prospectus of the institute is that mother/ father of the student should be resident of the selected 'service area'. For this purpose, the applicant is required to furnish a certificate of the Vikas Adhikari that the mother/father of the applicant has been residing in the selected service area for the last 10 years and were still residing there. This certificate has to be enclosed along with the application for admission. In the present case, non -petitioner Niranjan Jha along with his application for admission to the three years' Diploma Course enclosed with his application a certificate that his guardian Shri Mahendra Jha was living in village Budgaon Tehsil Girwa and the non -petitioner had been brought up and was being educated by his guardian Mahendra Jha who is his uncle. It was stated that his father Shri Surya Kant Jha was indifferent towards the bringing up and education of the non -petitioner. The principal of the institute was not admitting the non -petitioner to three years' Diploma course and, therefore, the non -petitioner filed a suit in the court of Munsif, Udaipur City (South) and in that suit, he also filed an application for temporary injunction under O. XXXIX, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. During the course of determination of that application, on behalf of the non -petitioner an affidavit was also filed that two seats were still vacant out of the five seats reserved for the service area, Jalore and Budgaon Panchayat Samities. The Munsif, Udaipur City (South) rejected the application for temporary injunction on August 20, 1986 on the ground that parents of Niranjan Jha were residing for last several years in Bihar State and were not residing in village Budgaon and, therefore, the non -petitioner was prima facie not eligible for admission against the seats reserved for the aforesaid 'service area'. How ever, on filing of Civil Miscellaneous Appeal No. 118 of 1986, the Additional District Judge No. 1, Udaipur granted the application of the non -petitioner and issued a temporary injunction in mandatory form directing the petitioners to grant admission to the non petitioner in the First Year of three years' Diploma course in Civil Engineering. The Additional District Judge was of the view that the parents of non -petitioner had neglected the education of non -petitioner and in that respect Shri Mahendra Jha, uncle of the non -petitioner, had filed an affidavit. In this context, the Additional District Judge held that Shri Mahendra Jha, who was guardian of the non -petitioner, should be considered to be falling within the category of mother/father of the non -petitioner and Shri Mahendra Jha was admittedly residing in village Budgaon and the non -petitioner was also residing with him He was of the view that restrictive and strict interpretation should not be given to the expression 'mother/father' mentioned in the prospectus of the institute.

(3.) THE learned Counsel for the non -petitioner relied upon the decision in the case of Harakchand v. State of Raj as than reported in 1970 RLW 320 wherein it has been laid down that interference should not be made in revision even where an illegality has been committed by the courts subordinate to the High Court because the illegality has not occurred in the manner in which the jurisdiction of the subordinate court was to be exercised. It is true that if the trial court or the District Court commits error of law it cannot be said that such an error would necessarily involve the question of the subordinate courts' jurisdiction within the meaning of Section 115 of the Code. But there are cases where it is not the exercise of jurisdiction which has been made, but the jurisdiction is abused and it is that type of case where the Additional District Judge has abused his jurisdiction by directing the petitioner to grant admission to the non -petitioner who did not fulfil the eligibility of admission. In the light of the facts and circumstances of this case, the correct approach should have been as laid down in the case of Smt. Vimla Devi v. Jung Bahadur 1977 RLW 326 and the Additional District Judge should not have interfered in the order of the Munsif, Udaipur City (South) unless it came to the conclusion that the order of the Munsif was arbitrary or perverse or capricious or in disregard of the sound legal principles or without considering of the relevant record. Where, like as in the present case, the court of first appeal interferes with the trial court's order in disregard of above factors, its own order becomes without jurisdiction and is liable to be set aside in revision under Section 115 of the Code of Civil Procedure.