R. M. Sahai, J. - (1.) The real issue in the appeal, whether the High Court was justified in directing the Education Officer by way of interim order, to ensure that 112, students, all girls, admitted by the respondent No. 102 a Christian minority institution, to Diploma in Education (D.Ed.) course for the academic year 1991-92 against the sanctioned strength of 80 should be accommodated and admitted in proper collegs, got submerged in an incidental issue of legality and propriety of one Bench disagreeing with a co-ordinate Bench of the same Court on grant of interim order.
(2.) How the issue of propriety was bloated out of proportion by the State of Maharashtra, presumably, in its anxiety to get the interim order passed by the High Court stayed is a matter of concern. Two basic circumstances, one, by way of affidavit and the other , oral, which persuaded this Court to pass the order were an averment, in the special leave petition, that when petitioners approached the High Court for grant of one month's time, from 20th October 1993, to enable them to file an appeal in this Court, the request was turned down even though the Bench was apprised that this Court was closed for Dussehra vacation, till 26th October 1993, and the appellant was directed to comply with the order by 25th October 1993 even when similar request for interim order had been turned down, earlier, twice by two different Benches. The other was, oral, by learned counsel for the State that the High Court did not extend the time for approaching this Court because it observed that stay orders are granted by this Court, even, at midnight. Whatever may have been the purpose or objective of stating it but the manner in which it was placed before a Bench of this Court of which one of us (R. M. Sahai, J.) was a member, it did have the desired effect resulting in an interim order staying further proceeding in the High Court. But when an affidavit was filed, by an officer of the Department who was present in the court, it transpired that a mountain had been made out of nothing. The affidavit states that the Bench did not extend the time and when it was informed that this Court was closed till 26th October, 1993 it observed that it was not necessary to grant any time as, 'citizens are well aware that the doors of Supreme Court are open at midnight even'. An observation by a Judge, presiding over the highest constitutional Court of the State which is apt to be misunderstood or misconstrued should be avoided in the interest of the institution. The learned Judge should have refrained from making the observationwhich was not only unnecessary but apt to create misapprehension. But it was even more unfortunate that it was taken advantage of by the appellant, who did nor act with responsibility as is expected of it in creating misleading impression on this Court to serve its own purpose. The appellant should have behaved like an enlightened litigant. And not like an ordinary person to obtain an interim order, which was of little consequence, except that it appears to have hurt the vanity of the Education Department. We refrain from saying further except expressing our anguish.
(3.) Not only that the appellant even attempted to assail the observation by the Court in its order dated 20th October, 1993 that the impugned order having been passed with consent there was no justification for delay in compliance of it. Relevant portion of the order is extracted below: "By the previous order dated 30-9-1993 which we passed after discussion upon which 111 students, agreed to appear fresh to April 1994 on payment of fresh fees, the Education Officer agreed to accommodate these studentes, who were diected to appear before him on 4-10-1993 and the petition was posted on 8-10-1993 to report compliance. This was on agreed order. The petition was taken up in view of observations of the Supreme Court in S.L.P.9598/92 dated 30-3-1992. Also we considered the fact that all 111 students, are women." This has been attempted to be diluted by the appellant by averring as under in paragraph (xiv) of the S.L.P.: "That despite the aforesaid situation being pointed out to the Hon'ble High Court, the High Court declined to grant any time beyond 25-10-93 and surprisingly for the first time it was sought to be imputed that the earlier order dated 30-9-93 was an order by consent.That the petitioners respectfully say and submit that the perusal of earlier directions clearly indicates that no such consent was either sought for nor given by the concerned officer and as such the finding in this regard is totally incorrect." It is well established that the factual recitals or observations made in a judgment or order are taken to be correct unless rebutted. The burden to rebut it is on the person who challenges it. One of the methods to rebut such observation is to file the affidavit of the person who was present in the Court and to produce such material which may satisfy the Court that the recital in the judgment crept in inadvertently or it was erroneous. But the averment extracted above would indicate that it is a statement more of law than rebuttal of fact of what happened in the Court. The Deputy Education Officer has not taken upon himself the responsibility of denying the observation in the affidavit categorically. The counsel who appeared before the Court and was required to file affidavit did not do so. A skilful drafting by vaguely asserting without even stating and explaining why consent could not have been given cannot be held to be sufficient rebuttal of statement of fact in the order passed by the High Court.;