Nathibai Damodar Thackerey ... vs Rule Served By Ds For

RAVAL HITAXI ROHITKUMAR & others Versus NATHIBAI DAMODAR THACKEREY WOMEN'S UNIVERSITY & another ====================================== Appearance :

MR DIPEN DESAI for Petitioner(s) : 1 ­ 20.

RULE SERVED BY DS for Respondent(s) : 1 ­ 2.

MR DILIP B RANA for Respondent(s) : 2, ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 28/08/2012 ORAL ORDER In this writ petition, in the context of prayer of the petitioners­ students to permit them to appear in the examination of B.Ed. Course to be held by respondent No.1­University, which was to start from 10.7.2012 onwards, initially, on 18.6.2012, notice was issued to be served upon the respondents and the hearing was fixed on 22.6.2012. In spite of service of notice, no one appeared on behalf of respondent No.1­ University. However, learned counsel for respondent No.2­College appeared . Thereafter, affidavit­in­reply was filed by respondent No.2­ College, but, again none represented for respondent No.1­University. An order was passed on 29.6.2012 by issuing Rule returnable on 5.7.2012. It was made clear that if no one appears for respondent No.1­University, an order in accordance with law will be passed. On 5.7.2012, Mr. V.C. Contractor, learned counsel for respondent No.1­University appeared and requested for time and, accordingly, the matter was adjourned to 9.7.2012 On 9.7.2012, a statement made by learned counsel for SCA/8134/2012 2/3 ORDER respondent No.1­University that similar issue was pending before a Coordinate Bench of this Court and, if the petitioners are otherwise found eligible, a separate examination commencing from 6.8.2012 can be conducted by respondent No.1­University and the petitioners could appear subject to eligibility. On 1.8.2012, when the matter was listed for further order, a sick note of learned counsel for respondent No.1­ University was filed. On the above date, no representation was made. The Registrar of respondent No.1­University was directed to remain personally present before this Court and the matter was ordered to be heard on 3.8.2012. On 3.8.2012, again Mr. V.C. Contractor, learned counsel for respondent No.1­University appeared and placed a photo­ copy of examination programme of B.Ed. to be conducted in the month of August/September 2012 and the eligibility of the petitioners would be scrutinized and a decision would be taken in this regard and if it were to be adverse, would be communicated to the petitioners. Since enrollment forms and other relevant materials along with demand draft were submitted to respondent No.1­University and were already placed on record of the petition, on 23.8.2012, in absence of further programme for examination and in absence of learned counsel for respondent No.1­ University appeared, the Controller of Examination, SNDT University, respondent No.1 herein, was directed to remain present before this Court on 27.8.2012. Since the above order dated 23.8.2012 was not complied with, the matter is kept today for further orders.

In the meanwhile, affidavit dated 27.8.2012 is filed by a friend of the petitioners who had visited respondent No.1­University for serving the above notice issued by this Court, stating, in no uncertain terms, that the order dated 23.8.2012 was communicated by FAX at 3.30 p.m. and a copy of FAX message is annexed with the affidavit. It further mentioned about the treatment meted out to the authorized person who went to serve the notice by the Registrar of respondent No.1­University and SCA/8134/2012 3/3 ORDER other personnel and threats administered to the person so authorized about dire consequences including filing of complaint before concerned police station, at Mumbai.

In the above backdrop of facts, in the proceeding of writ petition, where no vakalatnama is filed on behalf of respondent No.1­University, nor affidavit is filed by respondent No.1­University till today controverting the facts, except oral submission made about willingness of respondent No.1­University to comply with the order and to hold examination, the fact remains that the Controller of Examination, SNDT University, respondent No.1 herein has failed to remain present before this Court in spite of due communication of the order passed by this Court, as referred to hereinabove.

Prima­facie, the conduct of the Controller of Examination, SNDT University, exhibits willful disobedience and breach of the order dated 23.8.2012 and even no explanation is rendered on oath.

In the above circumstances, issue notice to the Controller of Examination, SNDT University, directing to explain as to why proceedings under the Contempt of Courts Act, 1971, be not initiated against him and further an order in terms of prayers made in this petition be not passed. Notice returnable on 5.9.2012.

Direct service is permitted.

S.O. to 5.9.2012 (ANANT S. DAVE, J.) (swamy)