TMI Blog2010 (5) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Hon'ble Justice Tapas Kumar Giri in judgment dated 4th April, 2008 in F.M.A. 718 of 2007 (hereinafter referred to as the second judgment), while noting judgment dated 21st February, 2008 of another Division Bench rendered in F.M.A. 27 of 2007 (hereinafter the first judgment ) on the same subject. 2. The West Bengal Council of Higher Secondary Education (hereinafter Council) preferred appeal against the order of the learned Single Judge who has passed an order for appropriation of only half the amount of deposit made at the time of admission of the writ petition. In the connected writ petition the learned trial Judge directed refund of 50% of the amount to the writ petitioner/respondent and permitted the appellant to appropriate the balance. Their Lordships while rendering the second judgment could not agree to the views expressed by Their Lordships in the first judgment that the candidate should not be asked to make pre-trial deposit more than ₹ 500/- per answer script for production of the same before the Court. It is observed by the Division Bench in the first judgment further that order of retention of ₹ 500/- per script out of the total deposit is mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution of India challenging the evaluation of the answer scripts done by the Council. It is appropriate to mention in the relevant Act or regulation framed thereunder there is no provision for scrutiny of the answer script after the result is declared. The access to justice under Article 226, of the litigant or to put it differently exercise of jurisdiction under Article 226 of this Court in a fit case is a basic structure of the Constitution. Irrespective of the expressed provision in any statute the doors of the Writ Courts are ajar to any person or citizen. Hence the writ court entertains these applications. The reasons for approaching of this Court sometimes are to be unfounded, and at times caring parents being propelled by the insistence of over confident examinees approach Court for no real ground but in some cases the challenges appear to be wholly or partly justified. 6. Taking note of the Apex Court's note of caution expressed in several cases and as reiterated in the case of Secretary, West Bengal Council of Higher Secondary Education vs. Ayan Das ors. reported in 2007 (8) SCC 242, this Court has developed a practice, if not a matter of rule, in a fit and j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in AIR 1960 SC 941 he contends, hence this order of deposit becomes final and at the subsequent stage the Court cannot pass any order except to allow the Council to retain it. However, he submits that there cannot be any straight jacket formula fettering the hands of the Court for passing order of appropriation of the deposit at the time of final hearing. The power of the Writ Court is unlimited and to pass any order with an obligation that no injustice is done to any of the parties. In other words, he submits it is absolute discretion of the Court and how it has to be done, depends upon facts and circumstances of each and every individual case. 9. The learned counsel for the respondent-examinee submits and agrees that it is the discretion of the Court and there cannot be any hard and fast rule nor the Court can lay down as such as a binding precedent. 10. Undoubtedly, the power of the Writ Court under Article 226 of Constitution of India cannot be fettered by any law or any rules framed thereunder, but in order to regulate the writ proceedings each and every High Court has framed rules. In exercise of power under the constitutional provision, this Court has also framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the proviso to sub-rule (1). 12. Having regard to the language of the provisions of both the Rules as above, we think it is absolute discretion of the Court, depending upon the facts and circumstances of the case, either to ask for pre-trial deposit or not, but not a matter of rule or compulsion. Obviously such discretion has to be exercised judiciously, bearing in mind the same does not operate as hardship against whom the order is passed. While considering the case of hardship of both the parties, if it is found that prima facie very strong case has been made out by the petitioner/candidate with penury, the Court in such cases may not ask for pre- trial deposit, but in a matter, where prima facie case is not so strong and on the other hand the respondent is to incur enormous expenses for bringing the answer script from a distant place, obviously the balance will be tilting in favour of the respondent for adequate amount of deposit. We hasten to add the above example is neither a static nor an absolute rule, it is merely an illustrative guideline. In view of the discussion, and position of law explained above, we cannot endorse the view of the Division Bench recorded in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether appeal is preferred or not. 15. We, are, therefore, of the considered opinion that the order of deposit is nothing but keeping the money in custody of the Council as a security to see that the Council is not made to suffer in a meritless action by the examinee. 16. How these costs should be appropriated is also again guided by Section 35 of the Civil Procedure Code by virtue of Rule 53 as above which is reproduced hereunder: 35. Costs.- (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers. (2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing. Thus the language of the said section is very clear that it is the discretion of the Court how the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er it should be exercised cannot be inflexibly laid down. It should be left with the Court and Court alone as it sees and feels the hardship of both the parties. An appeal court cannot do it. We therefore, with respect, express our inability to agree with views of the Division Bench of the first judgment that twenty five percent of the deposit is more than adequate compensation in all cases. This view cannot be made applicable universally as a binding precedent. Awarding costs or order of appropriation of pre-deposit cannot be characterized as penalty, since provision of law quoted above empowers the Court to take action. 18. However, we are in agreement with the submission of Mr. Gupta as it has been firmly established by Courts of law over the years in the judicial pronouncements that discretion means judicial discretion, not whims, caprice or fancy of a Judge. The discretion is something to be done according to the rules of reason and justice, not according to private opinion. It should not be arbitrary, vague and fanciful nor illegal and irregular. We add that discretion is a decision of a Court which on given facts and circumstances, a reasonable prudent man will think it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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