JUDGMENT Sudhir Agarwal, J
1. This special appeal arises out of judgment dated 9th November, 2005 passed by the Hon'ble single judge in Civil Misc. Writ Petition No. 69645 of 2005, dismissing the writ petition following the judgment already rendered by the Hon'ble single judge in Civil Misc. Writ Petition No. 6612 of 2005 Abhibhavak Shikshak Sangh, Khalsa Inter College and Anr. v. State of U.P. and Ors., decided on 26th October, 2005.
2. At the outset, learned counsel for the appellants submitted that his writ petition has been wrongly dismissed relying on earlier judgment since the appellants has challenged not only the cut off date prescribed by the Director of Education vide order dated 20th September, 2005 but he has raised many other grounds but without considering the same, the Hon'ble single judge has dismissed the writ petition referring to the earlier judgment. In these circumstances, normally, this court would have remanded the matter permitting the parties to raise all such issues before the Hon'ble single judge. However, the matter pertains to the career of hundreds of students who are likely to appear in the Intermediate examination of 2006 and delay in disposal of the matter may cause serious and irreparable loss to the students. Therefore, in the interest of justice and since the respondents' counsel also agrees that the matter may be heard on merits allowing the parties to raise all such issues as permissible and raised in the writ petition, therefore, we ourselves proceeded to consider this appeal on merits permitting the appellants to raise all such issues which were raised in the writ petition but have not been considered by the Hon'ble single judge.
3. In brief, the case of the appellants is that Inter College Kusmaul, Gorakhpur is a recognized educational institution, (hereinafter referred to as the 'College') under the Intermediate Education Act, 1921. The High School and Intermediate level examinations are recognized by the U.P. Board of High School and Intermediate Education, (hereinafter referred to as the 'Board') and the college is approved to provide education in science groups up to High School level and Arts group up to intermediate level. For the purpose of maintaining standard of education in the college and also purity in academic work, the Board has also framed regulations in exercise of its powers under Section 15 of the Act, 1921.
4. In accordance with the provisions contained in Chapter 12 of the Regulations, the registration of the 9th class students who are to appear in 2006 examinations of High School was made by the College since the prescribed forms were made available by the respondents well within time. However, for Xlth students, although the college made all preparations and the students had also deposited registration fee with the college, but the registration forms were not made available by the respondents to the college and, therefore, the registration of the Xlth class students aspiring to appear in 2006 examination could not be made in time as prescribed in Regulations. The appellants sent several applications to District Inspector of Schools requesting for providing registration forms but failed. The appellants have placed on record the copies of two applications dated 27th May, 2005 and 5th July, 2005 requesting the District Inspector of Schools that the registration forms are not available for class XI, although 383 (385) students are regularly studying in the college and, therefore, the college requested the District Inspector of Schools to make available the requisite number of forms without further delay. It is also stated that the registration fees of 383 students was deposited in Government Treasury, Gorakhpur on 12th May, 2005. The appellants also pointed out that scarcity of forms and nonavailability thereof in time was highlighted by the Principals' Association of the Gorakhpur vide their representation dated 25th January, 2005 requesting that the forms should be made available at the earliest. Inspite of that, registration forms could be made available only in July, 2005.
5. The District Inspector of Schools could make the requisite forms available on 8th July, 2005, whereafter the college filled up and deposited 358 forms in the office of the District inspector of Schools, Gorakhpur on 20th July, 2005.
6. It is also said that the District Inspector of Schools issued a general notice dated 6th August, 2005 mentioning that the students of all secondary colleges of district Gorakhpur who have to appear in High Schools and Intermediate examinations 2006 should submit registration forms by 15th August, 2005, failing which the responsibility shall lie upon the Heads of the Institution. The appellants submit that for delay in submission of the registration forms, neither the students nor the college was responsible and it is only on account of the non-availability of the forms with the respondents, the same could not be submitted in time as prescribed in the regulations.
7. The Director of Education, however, all of sudden, it is stated issued order dated 20th September, 2005 addressed to all Joint Director of Education, U.P. and the District Inspector of Schools stating that as per direction of the Hon'ble High Court, the students being imparted education in non-approved and recognized subjects shall not be allowed to appear as regular students in the Board's examination of 2006. It further states that such students may appear as private examinees in the examination aforesaid and the date for submission of examination forms as private candidate is being extended till 7th October, 2005. The said order also stated that in respect to the registration of the students of the various colleges, some of them have deposited registration fee and application forms beyond the last date prescribed i.e. 20th October, 2004, The District inspector of Schools of certain districts informed that since the registration forms were not available till the prescribed period hence caused delay. In the circumstances, the Director of Education permitted only such students as regular examinees in 2006 examination who have deposited registration fees by 31st December, 2004 and rest of the students will not be allowed to appear as a regular students but may appear as private candidates. It also provides that certain Government Secondary Colleges also have not submitted registration forms in time on account whereof the students are facing difficulty in submitting the examination forms. However, the students of the Government Colleges may be allowed registration without adhering to any cut off date but the Principals of such Government Colleges be warned for such lapses and confidential entry be made in their character roll of the year 2005-06.
8. The appellants submit that in pursuance to the aforesaid letter of the Director of Education, the District inspector of Schools, Gorakhpur issued an office memorandum dated 21st October, 2005 stating that such students who have not deposited their registration fees by 31st December, 2004 shall not be allowed to appear as regular candidates but may appear as private candidate. The appellants submit that the delay in submission of the registration forms was solely for the fault of the respondents and for their own lapses, the appellants and the students of the appellants' college cannot be made to suffer. In order to show that the registration forms were not made available inspite of several letters and reminders sent by the District Inspector of Schools to the Board and the Director of Education, the appellants have placed on record letters dated 31st May, 2005 and 9th June, 2005 sent by the District Inspector of Schools to the Board requesting to supply registration forms at the earliest. Thus on account of non availability of the sufficient quantity of registration forms, students could not have been registered in district Gorakhpur. The appellants submit that the respondents have not permitted the colleges to get the forms printed by the colleges on their own but they were bound to submit only such prescribed forms which are made available by the respondents. When the forms were not available with the respondents themselves in time, the question of deposit of such forms by the appellants in time could not have arisen. It is thus contended that the regular students of the college cannot be made to suffer for the own lapses of the respondents. They cannot be allowed to state since the prescribed time under the regulations or extended time by the Director of Education, has expired and the registration forms were not submitted, and, therefore, the students cannot be allowed to appear as regular students. It is urged that this would amount to penalizing innocent students of the appellants' college for fault over which neither they have control nor otherwise are responsible in any manner.
9. A counter affidavit has been filed on behalf of the respondents in this special sworn by Associate District Inspector of Schools. Gorakhpur. It has been stated therein that the Regulations 3-B and 3-C of Chapter XII of Regulations provides that the registration forms shall be filled up to 30th September and have to be sent to the regional office of the Board through the District Inspector of Schools by 10th October. The Director of Education issued an order on 3rd August 2004 permitting the following time schedule for advance registration of the students for High School and Intermediation examination 2006.
12. The Director of Education, however, again extended time for deposit of registration fees up to 31st December, 2004 vide letter dated 20.9.2005 and those who are beyond the aforesaid period cannot claim that still they should be allowed to appear as regular candidates since sufficient time and opportunity was afforded by the respondents but the appellants and similarly placed other persons failed to comply with the schedule fixed by the Director of Education from time to time. The respondents further states that the appellants in the present case deposited registration fees of class XI students on 12th May, 2005, and, therefore, did not comply with the time schedule determined by the Director of Education. It is also stated that the appellants were aware that registration forms were to be submitted in time as is apparent from their letter dated 11th October, 2004 wherein the Principal of the College requested the District inspector of Schools, Gorakhpur to provide registration forms for Class XI as the same were not made available till that date. A copy of the aforesaid letter of the appellants has been filed by the respondents as Annexure C.A. '2' to the counter affidavit. It is also stated that the Principal of the appellants' College is not an ordinary but he is also the Chairman of the Principals' Association, District Gorakhpur and, therefore, is well aware of the rules and regulations. Thus, violation of law in the present case on the part of the appellants cannot be looked into with any leniency. The appellants do not deserve any sympathy or considerate approach for its own failure in complying with the statutory provisions pertaining to registration of the students. The respondents submitted that in these circumstances, the writ petition has rightly been rejected by the Hon'ble single judge and the appeal is also liable to be dismissed.
13. Learned counsel for the respondents has relied upon the following case law:
1. 1998 (2) E.S.C. SC 1358 CBSE and Anr. v. P. Sunil Kumar and Ors..
2. 1998 (2) E.S.C. SC 1362 Union of India and Ors. v. Ashok Kumar Banerjee.
3. Supreme Court Cases 2001 (8) 427 Medical Council of India v. Sarang and Ors..
4. Maharasthra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupesh Kurmarsheth etc.
5. 2000 (2) E.F.R. 92 Chandra Gupta v. State of U.P. and Ors..
6. 2000 (2) E.F.R.101 Santosh Kumar v. Deputy Collector (U.P. Zila Dhikari), District Deoria and Ors..
7. State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr..
14. The appellant in rejoinder had reiterated the facts already stated. However, they have also placed on record the copies of the attendance register of Class XI for the months of July, 2004 to July, 2005, result cards and examination details of class XI students appeared in half yearly examination, copies of fees book accounts for the months of July and August, 2004 showing the fee deposited by Class XI students in order to demonstrate that 385 students were actually admitted in Class XI at the commencement of session 2004, out of which 368 students cleared XI class and these students are neither fake nor bogus but genuine and verifiable from the records. The appellants also submit that the entire action of the respondents pertaining to registration is itself inconsistent with the statutory provisions. Yet taking shelter under the statutory provisions, the respondents are trying to penalize the bonafide and innocent and honest students which is neither permissible under law nor in equity.
15. After hearing the rival submissions advanced by the learned counsel for the parties, the point required determination in peculiar facts and circumstances of this appeal as pointed above, are:
1. What is the last date prescribed under law for registration of the students?
2. Whether the time schedule prescribed in the regulations has been observed and adhered by the respondents?
3. Is it permissible to the respondents, in particular the Director of Education, to deviate from the time schedule prescribed in the regulations?
4. Whether the appellants failed to comply with the regulations pertaining to registration for their own fault or the respondents are responsible for the same?
5. Where the authorities who are responsible for observance of law, if rendered compliance impossible, what would be its effect?
6. What relief and directions required to be issued in this appeal?
16. Before adverting to the various issues formulated herein above, it would be prudent to have a bird eye view of the relevant statutory provisions pertaining to secondary education in the State of U.P.
17. U.P. Intermediate Education Act 1921 was enacted to establish Board of High School & Intermediate Education to take the place of Allahabad University for regulating and supervising the system of High School and Intermediate education in U.P. and to prescribe courses therefore. 1921 Act is, a self contained code as observed by this Court in the case of P.S. Lady Prashant Kaur Inter College v. S.P. Yadav 1981 UPLBEC 377 The Board is constituted under Section 3 of 1921 Act consisting of Chairman and a number of members. The Director of Education is ex. Qfficio Chairman of the Board. The powers of the Board are prescribed under Section 7 of the Act which includes admission of the students to its examination, conduct of examination at the level of High School and Intermediate, to recognize institution for the purpose of examination and to do all such acts, things as may be requisite in order to achieve the object of the Board for regulating and supervising the High School and Intermediate education. Section 15 of the Act confers power upon the Board to make regulations for the purpose of carrying into effect the provisions of the Act. It reads as under:
15. Power of Board to make regulations.
(1) The Board may make regulations for the purpose of carrying into effect the provisions of this Act.
(2) In particular and without prejudice to the generality of the fore-going powers, the Board may make regulations providing for all or arty of the following matter, namely -
(a) the constitution, powers and duties of committees;
(b) the conferment of diplomas and certificates;
(c) the conditions of recognition of institution for the purposes of its examinations;
(d) the courses of study to be laid down for all certificates and diplomas,
(e) the conditions under which candidates shall be admitted to the examinations of the Board and shall be eligible for diplomas and certificates;
(f) the fees for admission to the examinations of the Board;
(g) the conduct of examinations;
(h) the appointment of examiners and their duties and powers in relation to the Board's examinations;
(i) the election of members of the Board under Clause (c) of Sub-section (1) of Section 3;
(j) the admission of institutions to the privileges of recognition and the withdrawal of recognition;
(k) all matters which by this Act or to be or may be provided for by regulations (I) the conditions under which grants-in-aid shall be given to institutions recognized by the Board;
(m) the formation of parent-teacher association.
18. Thus, the Board has very wide powers of making regulations with the objective to regulate and supervise the High School and Intermediate examination as well as to maintain purity and preserve standard of education at the level of High School and Intermediate Education.
19. In exercise of powers under Section 15 of the Act, regulations have been framed by the Board. Chapter-12 of the Regulations contains general provisions regarding examination. Regulation 1 of Chapter 12 lays down examinations which the Board shall conduct, namely,
(a) High School Examination,
(b) Intermediate Examination,
(c) Intermediate Technical Examination and
(d) Intermediate Vocational Education examination.
20. Regulations 2, 2 (A) and 3 of Chapter - 12 lay down other provisions pertaining to holding of examinations. Regulations 3-B to 3-E were inserted by the Board's Notification No. parishad-9-/526 dated 13th November, 2000, published in the U.P. Gazette dated 9th December, 2000 and came into effect with the examination year 2002.
21. Regulations 3-B to 3-E, since relevant for the purpose of present appeal, are quoted herein below:
3-B Candidates appearing as a regular student in the High School and Intermediate Examinations should have to get their registration in the prescribed form at the time of admission in Classes 9 and 11 in the institution. Such candidates should make it available to the Head of the Institution for the time being the legal and certified copy relating to the date of birth and their eligibility. The Head of the institution should get them registered in their institution on being fully satisfied thereafter. Each candidate should have to deposit Rs. 10 (Ten Rupees) as registration fee to the Head of that Institution.
Note:- Registration fee shall be taken along with the registration form and should be deposited in the Government Account.
3-C. The Head of the Institution should remit one copy of the form duly filled in by the registered candidate to the Regional Office related to the Board by not later than 10th of October through the District Inspector of Schools till 30th September in accordance with the determined competence of the College.
3-D. Board should scrutinize promptly the particulars of all the registered candidates in Classes 9 and 11 and should make corrections, if any, as per requirement and should make it available till forthcoming 28th February in all respect through the District Inspector of Schools to the related institution for granting registration number on the basis of those particulars, to that effect the Head of the Institution shall acquaint with their registration number of each candidate of their College. Registration number shall be a permanent record of that candidate and the correspondence shall be made, as according to need, with the same registration number.
3-E. Those regular candidates should be considered eligible to appear in the Examination for Classes 10 and 12 who have obtained their registration in Classes 9 and 11, as far as possible, in the related institution. The forms of non-registered candidates should not be forwarded at any cost by the Head of the Institution.
Provided that the registration of transferred candidates from other Boards for Classes 10 and 12 only should get it registered into Classes Wand 12.
The above said shall come into effect with the Examination year 2002 as according to the Regulations amended as such.
22. Regulations 3-B, 3-C, 3-D and 3-E relates to the registration of students who have appeared as regular students in High School and Intermediate examination at the time of admission in Class IX and Class XI. The said regulations appear to have been framed to regulate and ensure that the regular students are registered at the time of admission in Class IX and Class XI, would undergo requisite education for the period prescribed in the educational institution and there may not be any possibility of such candidates to appear as regular students who have not been imparted education and have not attended the classes regularly in the college for the requisite period but only at the time of examination have filled in the forms and appear as regular candidates.
23. Regulation 4, Chapter 12 deals with admission of regular candidates and Regulation 5 prescribes the minimum attendance required by students who have to appear as a regular candidate etc.
24. Thus, perusal of Regulations 3-B and 3-C shows that as soon as a candidate who has to appear as a regular student in High School and Intermediate examination gets admission in Class IX and Class XI, he would deposit registration fee of Rs. 10/- to the Head of the Institution and shall fill in registration form which shall be submitted to the Head of the Institution. The candidate shall also provide legal and certified copy relating to the date of birth and his eligibility with the Head of the Institution. The Head of the Institution, thereafter, shall deposit registration fee in the Government Account and one copy of the registration form filled in by the registered candidate shall be sent to the regional office of the Board through the District Inspector of Schools not later than 10th October. The form has to be deposited with the District Inspector by 30th September. Regulation 3-D shows that the Board shall scrutinize the particulars provided in the forms and the District Inspector of Schools shall convey the registration number to the related institution till forthcoming 20th February. The registration number is a permanent record of that candidate and may be used for future correspondence etc. Regulation 3-E states that such registered candidates shall be eligible to appear in examination as regular candidates but, prohibits such candidates who are not registered, their examination forms shall not be forwarded by the college at any cost.
Point No. 1.
25. Coming to the first question, it is apparent that Regulation 3-C provides that registration forms duly filled in shall be submitted in the office of the District Inspector of Schools by the Head of the Institution by 30th September and shall be made available to the regional office of the Board, by 10th October. The language of Regulation 3-C shows that the forms should be available to the regional office of the Board latest by 10th October meaning thereby the said date is not extendable. There is no provision under the regulations permitting any change in the aforesaid schedule or any different schedule for different kind of institutions. Therefore, we have no hesitation in holding that as per Regulations 3-C, registration forms have to be made available to the office of the District Inspector of Schools by 30th September of the relevant year and the District Inspector of Schools has to make available the said forms to the Regional Office of the Board, latest by 10th October and there is no scope of alteration or extension with the aforesaid two dates.
26. The facts of this appeal shows that the authorities have acted in a very strange manner and different dates have been prescribed by them of their own without coming to the aforesaid provisions. The Director of Education vide letter dated 3rd August, 2004 fixed the schedule whereby the forms were to be deposited to the District inspector of Schools by 30th September, 2004 which was a date consistent with Regulation 3-C. However, on his own, without pointing out any reason, the aforesaid schedule was altered by a subsequent letter dated 14th September, 2004 wherein he prescribed the last date for submitting forms in the office of the District inspector of Schools as 20th October, 2004, although under Regulation 3-C the forms ought to have been made available to the regional office of the Board latest by 10th October. Therefore, the time schedule altered by the respondent no. 2 vide its letter dated 14th September, 2004 was consistent with Regulation 3-C. Again Director of Education made a strange alteration in the entire scheme by issuing letter dated 20th September, 2005 wherein it altered time schedule as follows:
1. If the registration fee has been deposited by 31st December 2004, candidates would be allowed to appear as regular candidates irrespective of date of actual deposit of registration form.
2. Although regulation does not make any difference in the recognized institutions whether privately managed or maintained by the State Government, but for the purpose of Government College, the requirement of time schedule was completely done away. This change by the Director of Education vide its letter dated 20th September 2005 was inconsistent with Regulation 3-C.
Points No. 3 and 4.
Both these points can be dealt with together. Admittedly, in this case the facts as emerged depicts the following picture:
Appellants requested the District inspector 11.10.2004 of Schools to make forms available Appellants as President of Principals' Association requested 25.1.2005 the District Inspector of Schools to make the registration forms available since due to non availability the colleges are not in a position to comply with the regulations pertaining to registration 31.5.2005 The District inspector of Schools, Gorakhpur requested the Regional Office of the Board to send registration forms.
9.6.2005 Reminder by the District inspector of Schools to the regional office of the Board demanding for registration forms.
Registration forms for Class XI were made available to the 8.7.2005 appellants by District inspector of Schools, Gorakhpur 358 registration forms submitted by the appellants in the 20.7.2005 office of the District Inspector of Schools.
The District Inspector of Schools, Gorakhpur notified to all 6.8.2005 colleges of district Gorakhpur to submit registration forms in his office by 15th August, 2005 Registration forms of the students of the appellants' 2.9.2005 college of Class XI were received in the regional office of the Board.
The Director of Education issued letter changing the entire 20.9.2005 scheme fixing 31.12.2004 as the date of registration fee Instead of form.
27. The aforesaid chart is evident to show that the respondents miserably failed in discharge of their statutory duty disabling the appellants to act in obedience of the scheme of the statute. Admittedly, it was the responsibility of the respondents to make requisite forms available to the appellants and only thereafter they were expected to abide by the statutory scheme. The respondents being self controlled autonomous body and Government authorities are not in the control of the appellants and could not have been compelled by the appellants to act with desired expeditiousness so that the statutory requirement is observed. The respondents have not disclosed any reason for showing, if not deliberate then negligent, laxity in their own actions. It is also strange that the Director of Education took almost one year i.e. after issuing his letter dated 14th September, 2004, issued second letter on 20th September, 2005 to inform the various colleges if the registration fees have been deposited by 31st December, 2004, the students may be allowed to appear as regular students irrespective of the fact whether registration forms have been submitted by 31st December, 2004 or even thereafter. He also, on his own, acted in complete defiance of the statutory scheme in respect to another set of institution, namely, Government College without disclosing or considering necessity for the same.
28. No doubt, it is true that it is the responsibility of the students to get themselves registered with the institution by submitting self filled in registration form with the Head of the Institution but the moot question is how one is expected to perform his obligation when the form itself is not available either with the head of the institution or even with the District inspector of Schools. Can it be said that the law required performance of something, which was impossible at the end of the students. Could they fill in form, which was not available? The answer is emphatically 'No'. Neither the students can be saddled with any kind of responsibility for something they are not in control nor in such peculiar facts and circumstances such students can be allowed to suffer for the act and omission of the respondents. This court is constrained to observe that deliberate and intentional negligent failure is writ large on the part of the respondents in discharge of their statutory duty.
29. From the scheme of Regulations contained Regulation 3-B to 3-E, it is apparent that statute requires that the forms for registration shall be available to the students at the time of admission in class IX or XI as the case may be. The availability of registration form is a condition precedent for the subsequent observance of statutory scheme. Though language of the regulations does not categorically says that the form shall be made available by the Board or by the District Inspector of School, but it is common case of the parties that the requisite forms are to be issued by the Board and made available to the Institutions though the concerned District Inspector of School. Meaning thereby that neither the colleges can get the forms printed on their own nor it is permissible for the students to do so. In these circumstances, unless and until the authorities take steps in time supplying registration forms to the institutions and the students, there is no occasion for the students to fill in the form and submit in institution. This stage, therefore, would be the deciding factor as to whether the statutory scheme is possible to be adhered to or not.
30. If the authorities for their own default sit tight and idle, did not bother for making the forms available to the institutions, is it permissible subsequently to the authorities to require the college and the students to adhere to the time schedule prescribed in the regulation and else face consequences. In our view the answer would be 'No' since neither the said provision can be read in such manner nor the Regulations permit such interpretation. "Lex Non Cogit ad impossibilia." The law does not compel a man to do that which he cannot possibly perform. The other similarly recognized legal maxims are "Impotentia Excusat Legim" and "neon tenatur ad impossibilia." Where the law creates a duty and the party is disable to perform it without any default in him and has no remedy over there, the law will excuse him.
31. The aforesaid doctrines have been accepted, approved and applied by the Apex Court, in India also as long back as in the case of Cochin State Power and Light Corporation Ltd. v. State of Kerala . where the Apex Court followed the aforesaid maxims and held;
The performance of this impossible duty must be excused in accordance with the maxim, lex non cogit ad impossibilia (the law does not compel the doing of impossibilities) and Sub-section (4) of Section 6 must be construed as not being applicable to a case where compliance with it is impossible, (para 8)
32. A Constitution Bench of seven Hon'ble Judges in Re Presidential Pool , held as under:
The maxim of law impotentia excusat legam is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge and the party is disabled to perform it, without any default in him and has no remedy over it, there the law will in general excuse him." Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th Edition at pp. 162-163 and Craies on Statute Law 6th Ed. at p.268). (para IS)
33. In State of Rajasthan v. Shamsher Singh , the Apex Court while considering a case under National Security Act, applied the aforesaid doctrine and held as under:
Mr. Jethmalani placed before us a passage from Broom's Legal Maxims (p. 162), 10th Edn., where the doctrine of impossibility of performance (lex non cogit ad impossibilia) has been discussed. It has been indicated therein that however mandatory the provision may be, where it is impossible of compliance that would be a sufficient excuse for non-compliance, particularly when it is a question of the time factor. Keeping the attendant circumstances of this case in view, we find it difficult to hold that the time taken by the State Government can amount to withholding of the representation which resulted in non-compliance of Section 10 of the Act so as to vitiate the detention.(para 10)
34. In Rajesh D. Darbar v. Narsing Rao Krishnaji Kulkarni and Ors. , it was held:
The other maxim is, lex non cogit ad impossibilia i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxim has been approved by this Court in Raj Kumar Dey v. Tarapada Dey, Gursharan Singh v. New Delhi Municipal Committee and Mohd. Gazi v. State of M.P. (para 6)
35. This is followed again in the case of Ram Chandra Singh v. Sabitri Devi and Ors. .
36. In the case of Industrial Financial Corporation of India Ltd. v. Cannanore Spinning & Weaving Mills Ltd. held as follows:
The Latin Maxim referred to in the English judgement "lex non cogit ad impossibilia" also expressed as "impotentia excusat iegem" in common English acceptation means, the law does not compel a man to do that which he cannot possibly perform. There ought always thus to be an invincible disability to perform the obligation and the same is akin to the Roman Maxim, "nemo tenetur ad impossibilia. (para 30)
37. A Constitution Bench of five Hon'ble Judges also considered the aforesaid maxim in Special Reference no. 1 of 2002 and held as under:
The maxim of law impotentia excusat Iegem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat Iegem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge and the party is disabled to perform it, without any default in him and has no remedy over it, there the law will in general excuse him". Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th Edition at pp. 1962-63 and Craies on Statute Law 6th Ed. p. 268). These aspects were highlighted by this Court in Special Reference 1 of 1974 . Situations may be created by interested persons to see that elections do not take place and the caretaker government continue in office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded. (para 154)
38. Recently in the case of Board of Control for Cricket in India v. Netaji Cricket Club , the Apex Court has again followed and approved the aforesaid maxim by referring to the earlier judgment in Rajesh D. Darbar.
The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform.... (Para 107)
39. In another recent judgment of the Apex Court in HUDA and Anr. v. Dr. Babeswar Kanhar referring certain English decision, the Apex Court observed as under:
Apart from the said section and various provisions in various other Acts, there is the general principle that a party prevented from doing an act by some circumstances beyond his control, can do so at the first subsequent opportunity (see Sambasiva Chari v. Ramasami Reddi). The underlying object of the principle is to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a court or office and that period expires on a holiday, then the act should be considered to have been done within that period if it is done on the next day on which the court or office is open. The reason is that law does not compel the performance of an impossibility. (See Hossein Ally v. Donezelle 2.) Every consideration of justice and expediency would require that the accepted principle which underlies Section 10 of the General Clauses Act should be applied in cases where it does not otherwise in terms apply. The principles underlying are lex non cogit ad impossibilia (the law does not compel a man to do the impossible) and actus curiae neminem gravabit (the act of court shall prejudice no man).(para 5)
40. In the present case the respondents first of all imposed upon themselves the obligation of making the registration forms available. However, they failed in supplying registration forms resulting in that students could not fill in and deposit the same as per time prescribed under Chapter XII of the Regulation. Thus, the respondents did not discharge the said obligation. The appellants reminded the respondents for registration forms to be made available so that they may comply the statutory requirement but in vein. The respondents on their own changed the statutory time scheme by issuing mere executive orders and ultimately even the entire scheme of the regulations was modulated in a totally different manner. It is not the case of the respondents that the said modulation by the Director of Education was in pursuance to any decision taken by the Board in exercise of its regulation framing power having the effect of amendment of the aforesaid regulations. We are afraid, in such circumstances, the letters issued by Director of Education inconsistent with the Regulations have to sub-serve the Regulation. Possibility cannot be rules out that thousands and lacks of the students although took admission in time and could have deposited the registration forms in time, if made available by the respondents, but for the fault of the respondents could not do so. Now they are sought to be restrained from appearing as regular candidate by adhering to the scheme of the regulations. It would certainly cause a serious prejudice to the entire students community in general who have to appear in 2006 Intermediate Examination, for the fault, they have not committed at all.
41. In the case of Maharastra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumar Seth , the Apex court in para- 29 of the judgment observed as under:
It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and gaoss root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye law which would bring about the result of rendering the system unworkable in practice".
42. In the present case, what is not supposed to be done by the court, has actually been acted upon by the Director of Education, totally unmindful of the statutory provisions. We enquire from the respondents as to how vide letter dated 14th September 2004, the Director of Education could determine the last date for submission of registration form as 20.10.2004, when the regulation prescribe the last date for submission of registration forms in the office of District Inspector of School as 30th September and in the regional office 10.10.2004. The respondents could not give, any reply at all. Again when Chapter 12 nowhere provides that registration fee, already received by the Educational institution from the students who were appearing in class XI, if deposited even after 10th October, 2004, would be a valid reason for permitting such students as regular candidate in 2006 examination, yet how the Director of Education issued letter dated 20th September, 2005 making deposit of registration by 31.12.2004, as valid criteria for valid registration entitling the candidates to appear as regular students, irrespective of actual date of submission of registration forms. This shows that the Director of Education was aware that the registration forms were not available at all at certain places on account whereof the students or the colleges were not in a position to submit registration form within the prescribed time. In such case it was proper for the Director to place this matter in the Board who could have taken a proper decision and if necessary by making suitable provision in the Regulation.
43. Even otherwise the manner in which the Director of Education has acted in this case is itself highly disturbing. Without giving any hint in the past that he may permit such students whose registration fee was deposited by 31.12.2004 to appear a regular students the Director of Education has issued the said letter dated 20.9.2005 having retroactive effect. It is beyond imagination as to how the students and the colleges would know that they should have deposited registration fee by 31.12.2004 even if the forms were not available till the last date prescribed under the Regulation or up to 31.12.2004 or even thereafter. It appears that the letter dated 20.9.2005 has not been issued bona fide. We have no option but to deprecate the irresponsible and negligent manner in which the Director of Education in his capacity as ex-officio Chairman of the Board has acted in this case by issuing directions at variance to the statutory provisions and thereby has caused a mess. If the action of Director of Education is not deliberate, it amounts to serious dereliction of duty. We have no manner of doubt in saying that it is a clear negligent and reckless kind of order issued by him.
44. The judgments (supra) cited by learned counsel for the respondents are inapplicable and do not deal with the kind of problem we are having in the present appeal.
45. In the case of C.B.S.E. v. P. Sunil Kumar (Supra), cited by learned standing counsel, certain non affiliated institution admitted students and thereafter directions were issued by the Court to the C.B.S.E. to allow such students to appear in the Board examination and to declare their results.
46. The Apex Court while reversing such direction observed in para 4 the reasons for not agreeing with the directions issued by the High Court, as under:
There is no iota of material placed before us to indicate that the Central Board of Secondary Education, the appellants herein, either directly or indirectly had held out to the students at any point of time that the institutions in which they are prosecuting their studies have been affiliated or are going to be affiliated at a near future. We are conscious of the fact that our order setting aside the impugned directions of the High Court would cause injustice to these students. But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have under-taken examination would tantamount to subversion of law and, this court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of student.
47. In this appeal, neither the institution is non-affiliated nor unrecognized nor it is a case of the respondents that the students of the appellant's college are actually bogus students.
48. The second case cited by learned standing counsel, Medical council of India v. Sarang and Ors. (Supra) is also inapplicable in as much as the interpretation of Regulations 6(5) of Medical Council of India Regulation on Graduate Medical Education, 1997 was involved and the Apex Court while disagreeing with the interpretation given by the High Court, in para-6 of the said judgment observed as under:
In matters of academic standards, courts should not normally interfere or interpret the rules and such matters should be left to the experts in the field." In the present case the matter of academic standard is not at all involved and the issue involved and the facts of the present case are totally different.
49. In Maharastra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumar Seth (supra) the validity of Clause (1) and (3) of Regulation 104 framed by the Maharastra State Board of Secondary and Higher Secondary education was challenged. In the present case the appellant are not challenging the validity of any provision of Chapter 12 of the Regulation but in effect their case is that they were not allowed to perform their part of statutory duty under Chapter 12 of the Regulation by the respondents statutory body and authorities on account of their own default and now they are penalizing, the appellants for the fault, they are not guilty. We are judging the action of the respondents within four corners of the statutory regulations and the effect thereof. In fact the following observation of Hon'ble Supreme Court rather supports the appellants instead of respondents.
If for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say Parliament never intended to given authority to make such rules; they are unreasonable and ultra vires. (para 21) A law has to be adjudged for its constitutionality by the generality of cases it covers not by the freaks and exceptions it martyre. (para 22) The test of reasonableness is not applied in vacuum but in the context of life's realities. (para 28)
50. The fourth case Chandra Gupta v. State of U.P. (Supra) pertains to the applicability of the provisions of the U.P. High Speed Oil and Diesel (Maintenance of Supplies and Distribution) order 1981. The same has no application or relevance with the issue involved in the present case. The learned standing counsel however on the strength of the aforesaid judgment contended that the writ of mandamus cannot be issued only if the petitioner ensure that there resides in him a legal right to the performance of a legal duty by the party against whom a mandamus is sought. The Division Bench of this court in the aforesaid case quoted the following observation of the Apex Court in Mani Subrat v. State of Haryana .
A person can be said to be aggrieved only when a person is denied a legal right by someone who has the legal duty to do something or to abstain from doing something.
51. In our view the respondents were under statutory obligation to provide prescribed registration forms to the appellants so that they could have performed their own statutory obligation of submission of duty filled registration forms with the District Inspector of School in time. The respondents failed in discharge of their legal duty and on the other hand tinkered with impugnity with the statutory scheme pertaining to last date of deposit of form causing total disarray. Subsequently in a selective and unexplained manner, they have allowed some to appear as regular students while denying others. In such case, the appellants are entitled to maintain writ of mandamus against the respondents.
52. The case of State of Bihar v. Kameshwar Prasad Singh (supra) has been cited by learned counsel standing counsel in support of his contention that if something wrong has been done in the past, no person can seek a mandamus directing the authorities to commit the same wrong. This principle is unexceptional and we are in total agreement. But the appellants are not seeking parity with reference to any earlier illegal action permitted by the respondents. On the contrary the respondents by their acts and conduct have allowed the statutory scheme to broken down and subsequently are trying to partly implement the same. In these circumstances this Court is required to stand to the occasion to adjust the equity and do justice with the appellants who have suffered for the fault of the respondents. Should the appellants under go a sentence for a sin they have not committed? Can the respondents be permitted to take the advantage of their own wrong. The answer would be plain and simple "no."
53. The learned standing counsel also informs that against the judgment dated 26.10.2005 passed by the Hon'ble Single Judge which has been followed in the Judgment under appeal, special appeals were filed and have been dismissed. He placed reliance upon judgment dated 30.11.2005 passed in special appeal no. 1425 of 2005 Janardan Singh and Ors. v. State of U.P. and Ors. Whereby the special appeal was dismissed confirming the judgment dated 26.10.2005 in writ petition No. 65935 of 2005. However, a perusal of the judgment shows that the appellants in the said case challenged the orders of the Director of Education on the ground that they were not aware that any time period has been fixed for submission of registration forms. It was not the case where the forms were not made available by the respondents on account whereof the same could not be submitted by these appellants. Thus, issue raised in the aforesaid appeal was different and has no application to the present case as is apparent from the following part of the said judgment:
Further, the judgment of the Hon'ble Single Judge shows that indulgence has been granted by the authorities extending the period up to 31st December. 2004 yet without any explanation simply on the ground that the appellants were not aware, or for any other reason, without disclosing any just and valid reasons, they could not deposit the forms within time, their action cannot be condoned as the same would be contrary to the provisions of the Statutes.
54. Normally whenever an executive order is found to be inconsistent with the statutory provision, this court declare the same ultra virus and stop thereafter but the case in hand is that not simple. Such action would only cause a serious irreparable loss denting the career prospects of not only the students appellants, but even a very large number of students who are not before us but are likely to suffer. Therefore, in this particular case, we cannot leave the matter with only declaration but a pragmatic and realistic approach is necessitated in the peculiar facts and circumstances which is a creation of the respondents.
55. We are constraint to observe that in the present case the educational authorities have not only shown total disrespect to the statutory provisions but have acted in a very lax and indifferent manner. Being the senior authorities in the Government, it was not expected from them. The Government in a democratic system is governed by Rule of law. The Government does not mean a lax Government. The public servants hold their offices in trust and are expected to perform with due diligence particularly, so that their action or inaction may not cause any undue hardship and harassment to a common man who has no control over their action/inaction.
56. Whenever, such indulgence or unmindful action causing harassment to a common man would come to the notice of this Court, it will not be stay as a silent spectator but will always rise to occasion and react to bring the authorities to law. In the case of Lord Hailsham in Cassell & Co. Ltd. v. Broome 1972 AC 1027 the Court held as follows:
An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law...public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it....Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous.
57. In the case of Registered Society v. Union of India and Ors. (1996) 6 SCC 530, the Apex Court has said as under:
No public servant can say "you may set aside an order on the ground of mala fide but you cannot hold me personally liable" No public servant can arrogate in himself the power to act in a manner which is arbitrary.
58. In the case of Shiv Sagar Tiwari v. Union of India (1996) 6 SCC the Apex Court has held as follows.
An arbitrary system indeed must always be a corrupt one. There never was a man who thought he had no law but his own will who did not soon find that he had no end but his own profit.
59. In the case of Delhi Development Authority v. Skipper Construction and Anr. AIR 1996 SC 175 the court held as follows:
A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not meant to enable the guilty to delay and defeat the just retribution. The wheel of justice may appear to grind slowly but it is duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless.
60. Although, we find that the orders issued by the Director of Education are contrary to the Regulations contained in chapter 12 but we are aware that thousands and lacs of students appearing in High School and Intermediate examination conducted by the Board may have already availed the benefit of the said orders and setting aside of the aforesaid orders would cause irreparable loss to the public at large particularly, when none of them is before this court. In the circumstances, although, this court has laid down law as aforesaid but refrain from setting aside the aforesaid orders on the ground of being inconsistent with the Regulations.
61. However, the appellants also cannot be allowed to suffer only for this reason since they are also not at fault as discussed above and this court would not allow them to say in future that although they won the battle but lost the war.
62. In the entirety of the aforesaid submissions, this court found it proper to issue the following directions to the respondents.
(1) The appellants students whose registration forms were deposited in the office of the District Inspector of Schools on 20.7.2005 shall be allowed to appear in the Intermediate examination 2006 conducted by the U.P. Board of High School and Intermediate as regular candidates.
(2) All such students whose registration forms could not be submitted in the office of the District Inspector of Schools within the prescribed time as per Regulation 3(C) of chapter 12 of the Regulations due to non availability of the forms and if they had deposited such forms within one month from the date the forms were made available by the respective District Inspector of Schools, they shall also be allowed to appear as regular candidates in the examination 2006.
(3) Although the relaxation which has been allowed by the Director of Education by determining different dates other than those prescribed under Regulation 3(B) chapter 12 of the Regulations, is not correct, but since the students who have got the advantage thereof are not before us, they will remain unaffected from any observations made in this judgment since we do not propose to pass any order causing prejudice to such students in their absence.
(4) However, for the examination 2007 and onwards the respondents shall strictly adhere to the time schedule prescribed in chapter 12 of the Regulations framed under the Intermediate Education Act 1921 and the respondents and the Board of High School and Intermediate Education U.P. shall ensure the availability of the forms well in advance to all the recognized institutions. The respondents Board may also consider the probability of allowing the recognized institutions to get registrations forms printed on their own or it may put a pro forma of the prescribed form on the Internet and other Electronic or Printed Media so that there may not be any avoidable delay in submission of the forms due to non availability thereof.
(5) Any deviation or variance from the Regulation by any authorities including the Director of Education should be dealt with strictly and if necessary requisite Departmental action may also be taken so that the statutory scheme may not be observed in violation with impunity by those who are under an obligation to obey and get it implemented.
(6) The Secretary, Secondary Education is also directed to look into the matter as to how and in what circumstances the Director of Education issued various letters and directions inconsistent with the statutory provisions and if it is found that the same was a result of collateral or extraneous reason, suitable action will taken against the erring official as per law.
65. In the result the special appeal is partly allowed with these observations and the judgment dated 9.11.2005 passed in writ petition no. 69654 of 2005 by Hon'ble Single Judge is set aside. No order as to costs.