High Court Punjab-Haryana High Court

Shri Vaishno Devi Shiksha Samity & … vs Unknown on 4 October, 2008

Punjab-Haryana High Court
Shri Vaishno Devi Shiksha Samity & … vs Unknown on 4 October, 2008
L.P.A. No.145 of 2007                                  -: 1 :-


      IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
                  HARYANA AT CHANDIGARH


                                    L.P.A. No.145 of 2007
                                    Date of decision: October 4 , 2008.


Shri Vaishno Devi Shiksha Samity & Ors.
                                                       ...Appellant(s)

            v.
State of Haryana & Ors.

                                                       ...Respondent(s)

CORAM:      HON'BLE THE CHIEF JUSTICE
            HON'BLE MR. JUSTICE SURYA KANT

1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?

Present:    Shri Rajiv Atma Ram, Senior Advocate with
            Ms. Sunita Singh and Shri G.C. Gupta, Advocates,
            for the Appellant(s).

            Shri Rameshwar Malik, Additional Advocate General, Haryana
            for respondents No.1 and 4.

            Dr. Balram Gupta, Senior Advocate, with
            Shri Vikas Hooda, Advocate for respondents No.2 & 3.

            Shri Vinod S. Bhardwaj, Advocate for NCTE.

                                ORDER

Surya Kant, J. –

This order shall dispose of Letters Patent Appeal Nos.145, 146,

147 and 148 of 2007 and Civil Writ Petitions No.17255, 18039 and 18063

of 2007, as common questions of law and facts are involved in these cases.

While the Colleges are in appeal, the affected students have filed the

connected writ petitions. For brevity, the facts are being extracted from

LPA No.145 of 2007, arising out of CWP No.20656 of 2006, wherein the
L.P.A. No.145 of 2007 -: 2 :-

challenge by the four appellant-institutes to an order dated 20.12.2006

passed by the State Admission & Fee Committee for Technical Education,

Haryana (in short SAFC) has been turned down by a learned Single Judge of

this Court vide the impugned judgment dated 12.7.2007.

[2]. The appellant-managements have set-up colleges to conduct

B.Ed course in the State of Haryana. The National Council for Teachers

Education (in short NCTE) is the statutorily prescribed apex body for

teachers education under the National Council for Teachers Education Act,

1993 (in short the 1993 Act). To set up a B.Ed college, necessary approval

of the NCTE is required and once the same is accorded, the State Govt. or

the Affiliating University cannot refuse ‘no objection certificate’ or

affiliation to the college, as the case may be, as per the law laid down by the

Supreme Court in the case of State of Maharashtra v. Sant Dhyaneshwar

Shikshan Shastra Mahavidalaya & Ors., JT 2006(4) SC 201.

[3]. The NCTE vide its order dated 2.12.2006 (Annexure P-1)

granted recognition to the appellants’ colleges for the B.Ed course “subject

to the condition of appointment of qualified staff through duly constituted

selection committee as per the norms of NCTE/State Govt./Affiliating

University/Body given effect before the commencement of the course etc.”.

The recognition was further subject to the fulfillment of the conditions like

maintaining the required strength of the teaching staff as per the NCTE

norms; (ii) adherence to the regulations and guidelines framed by the

NCTE; (iii) conversion of endowment fund into a joint account in the form

of FDR; (iv) creation of reserve fund; (v) submission of self-appraisal report

to the Regional Committee; (vi) up-dating of website of the institute; (vi) if

operating from a rented premises, to shift to the permanent building, etc.
L.P.A. No.145 of 2007 -: 3 :-

[4]. The appellant colleges thereafter applied to the Maharishi

Dayanand University (in short MDU), Rohtak for the affiliation. The MDU

vide an order dated 7.12.2006 (Annexure P2) accorded ‘provisional

affiliation’ to the appellants subject to the conditions that “the institute shall

make appointments of teaching faculty, i.e., Principal and Lecturers in

accordance with prescribed qualifications, norms and procedure of

appointment as notified by the University within a period of three months,

which shall be verified by the University, failing which the registration of

the students of the defaulting college(s) shall not be made/allowed and the

college shall also not be allowed the continuation in conditional

provisional affiliation for the next session”. It was further stipulated that

“the teaching and other staff shall be appointed through properly

constituted selection committee…” and that “the faculty shall be appointed

as per the NCTE norms as per the pay scales prescribed by it from time to

time” etc.

[5]. It may be noticed here that for admission to the B.Ed course for

the session 2006-07, an entrance test was conducted by the Kurukshetra

University, Kuruksehtra (in short KUK). It appears that there were 16 more

newly established B.Ed colleges, other than that of the appellants, which

were also granted provisional affiliation by the MDU or the KUK (13 by

MDU and 3 by KUK) to admit students for the session 2006-07. On the

recommendations of the SAFC, the State Govt. vide memo dated

28.11.2006 (Annexure P-4) asked the KUK to conduct centralized

counselling for all the 16 colleges and that “the counselling for the vacant

seats should be completed by 15th December in all respects”. On the advice

of the SAFC, the State Govt. issued yet another circular dated 12.12.2006
L.P.A. No.145 of 2007 -: 4 :-

(Annexure P-5) stating that the vacant seats reserved for Scheduled Caste

category candidates in private self-financed B.Ed colleges could be filled up

“within 12 days from the issuance of this letter”. Hence, admissions to the

B.Ed course in self-financed private B.Ed colleges, in a way, continued till

24.12.2006. In the meantime, as noticed earlier, the appellant-colleges (7 in

total) were also granted recognition by the NCTE as well as the ‘provisional

affiliation’ by the MDU. These colleges also wanted admissions to be made

against the allocated seats for the academic session 2006-07 through the

ongoing counselling being conducted by the Kurukshetra University. The

State and the University authorities having not acceded to their request, the

first appellant filed CWP No.19690 of 2006, which was disposed of by a

Division Bench of this Court vide order dated 12.12.2006 and after hearing

all concerned, with liberty to the petitioners to approach the SAFC for

Technical Education, set up by the State Govt. and the said Committee,

headed by a retired Judge of this Court, was requested “to take into

consideration the representation/application”.

[6]. Pursuant thereto, the SAFC passed a hard-hitting order dated

20.12.2006 whereby not only the representations of the appellant-colleges

were rejected, the MDU was also put into a dock for its act which “smacks

of total disregard of norms and prudence on the part of the University

authorities in granting provisional affiliation to these colleges”. The SAFC

accordingly directed the MDU to withdraw the provisional affiliation

granted to the appellants and thereafter to follow proper procedure for grant

of regular affiliation. A copy of the order was also sent to His Excellency,

the Governor of Haryana and the Chancellor of the University, for his kind

perusal and information and to the Chief Minister of Haryana for “initiating
L.P.A. No.145 of 2007 -: 5 :-

appropriate action against the defaulters”.

[7]. The SAFC felt that notwithstanding the glaring deficiencies

found by the Inspecting Team of the University on 7.12.2006, such as

inadequate premises and other infrastructure, non-availability of qualified

staff, employment of ineligible staff, deficient library and lab set-up, etc.,

the colleges were still granted provisional affiliation in a hurried manner

without following the due procedure, with a view to enable them to admit

students for the session 2006-07 on the basis of ongoing counselling.

[8]. Aggrieved at the order dated 20.12.2006 (Annexure P-10)

passed by the SAFC, the appellants approached this Court through a Civil

Writ Petition in which, while issuing notice, the motion Bench passed the

following interim order on 23.12.2006:-

“Notice of motion for 11.01.2007.

In the meanwhile operation of the order dated 20th
December, 2006 (Annexure P/10) shall remain stayed and
the petitioners shall be provisionally permitted to
commence and conclude the admission procedure for the
vacant seats at their own risk and responsibility. The
petitioners shall clearly disclose to the students who are
admitted that the admission is subject to the final decision
of this petition.

A copy of this order be given dasti under the signatures of
the Court Secretary of this Court.”

[9]. Undeniably, about 800 students were provisionally admitted by

the appellant colleges subject to the final decision of their writ petitions.

The Single Judge, however, dismissed the writ petitions vide the impugned

judgment dated 12.7.2007 after holding, inter-alia, that:- (i) while making

the admissions, the merit in the Common Entrance Examination has not
L.P.A. No.145 of 2007 -: 6 :-

been followed; (ii) the admissions were to be finalized before 15.12.2006

whereas the appellants admitted the students even on 26.12.2006 and in

some cases, on 29.12.2006 also; (iii) none of the institutes has conducted

classes for the students for uninterrupted 180 teaching days; (iv) the

recognition granted by NCTE being conditional, no admission could have

been made without an unconditional recognition and in contravention of the

NCTE Regulations of 2005.

[10]. It requires mention here that even before the dismissal of the

writ petitions by the learned Single Judge, the students admitted by the

appellants had completed the duration of the B.Ed. Course and were due to

appear in the final examination to be conducted by the MDU.

[11]. On 16.7.2007, the Letters Patent Bench while issuing notice,

directed that, “without prejudice to the rights and contentions of the parties,

the students are permitted to take the examination”.

[12]. Thereafter, on 1.2.2008, the following interim directions were

issued:-

“Dr. Balram Gupta, Advocate, appearing on behalf of
respondents No.2 and 3 prays for some time to go through
the voluminous records and seeks time to file reply. Reply,
if any, be filed in the Registry within two weeks from today
with an advance copy to the learned counsel for the
appellant. Rejoinder, if any, be filed within two weeks
thereafter.

The result of the candidates in the sealed cover be brought
in the Court on the next date of hearing.”

[13]. On 3.3.2008, the LPA Bench passed yet another order in the

following terms:-

“The result of the candidates has been brought in a sealed
L.P.A. No.145 of 2007 -: 7 :-

cover. Let it be opened and be declared subject to the
decision of the LPA. The result produced is given back to
Dr. Balram Gupta.”

[14]. It is indeed not in dispute that the University has already

declared the result provisionally and the pass percentage of the students of

appellant-institutes ranges between 88% to 95% or above.

[15]. Learned counsel for the parties are also ad idem that soon after

the disputed academic session 2006-07, all the seven appellant-colleges

have been granted regular affiliation by the MDU as the deficiencies noticed

earlier by its Inspecting Team stood rectified. The NCTE has already

granted recognition to these colleges. The only issue which survives now is

as to whether or not the provisional declaration of the result of the students

admitted by the appellant-colleges is liable to be regularized.

[16]. We have heard learned Counsel for the parties at some length

and gone through the record. The additional documents placed on record by

the appellants to meet out the alleged deficiencies noted by the Inspecting

Team of the University and relied upon by the learned Single Judge, have

also been taken into consideration, besides the documents produced by the

University Counsel on our asking.

[17]. It was argued on behalf of the appellants that the action of the

SAFC as also of the MDU in resisting the regularization of the result

already declared previously is wholly discriminatory and founded upon

irrational considerations. According to the learned counsel, there were 16

other colleges which were provisionally affiliated with the same University,

for whom the SAFC extended the last date for admissions till 15.12.2006,

followed by yet another extension to fill-up the reserve category seats till
L.P.A. No.145 of 2007 -: 8 :-

24.12.2006 (Ref: Annexures P-4 and P-5). On the other hand, the appellant-

institutes were permitted by this Court to admit students at their own risk

on 23.12.2006 and most of the admissions were made on 24.12.2006 itself.

It is urged that irrespective of the reserve or non-reserve seats, once the

students are allowed to be admitted in other colleges till 24.12.2006 and no

objection is raised against their eligibility for appearing in the final

examination by the MDU, how can an altogether different yardstick be

applied qua the students admitted by the appellants? It is then urged that

even in those 16 colleges, where admissions were permitted to be made till

24.12.2006, 180 lectures could be completed only by holding classes on

Sundays and other gazetted holidays. So was the procedure followed by

the appellants who too made sure that each student attended 180

uninterrupted lectures. As far as the deficiencies pointed out by the

Inspecting Team of the University before granting provisional affiliation to

the appellants is concerned, learned counsel pointed out that except in one

college, the Inspecting Team has categorically recorded that the teaching

and non-teaching staff appointed by the appellants were qualified and had

been offered appointments. Learned counsel further pointed out that the

NCTE and the MDU have prescribed varying qualifications and not even a

single teacher was appointed by the appellants who did not possess the

academic qualifications as prescribed by the NCTE. The only procedural

lapse committed by the appellants was that no University nominee was

associated as a member of the Selection Committee while recruiting the

teaching faculty through public advertisements. Besides, the said non-

inclusion is of no material consequence, urged the counsel, as the

irregularity is stated to have been rectified within the three months period
L.P.A. No.145 of 2007 -: 9 :-

granted by University. Learned counsel also urged that the high pass-

percentage scored by the appellants’ students in the annual exam, is a proof

by itself of the tall teaching standards maintained by them.

[18]. Learned Senior Counsel for both the Universities, on the other

hand urged that neither the teaching staff was recruited as per the

qualifications prescribed by the University nor its nominees were associated

before making any such appointments and since the University did not

authorize these colleges to make admissions unless the teaching faculty was

appointed as per the MDU norms, the admissions, if any, made by the

appellants at their own risk, were a total fraud and could not be given the

colour of legitimacy, solely on the basis of the performance of their students

in the final examination.

[19]. The National Council for Teachers Training Act, 1993 was

enacted by the Parliament to provide for establishment of a National

Council for Teachers Education (NCTE) with a view to achieve planned,

uniform and coordinated development of the teachers’ education throughout

the country. Section 14 of the Act provides that every institution offering or

intending to offer a course in teachers’ training shall henceforth make an

application to the Regional Committee concerned and if, after obtaining

such other particulars as it may consider necessary, the NCTE is satisfied

that the applicant has “adequate financial resources, accommodation,

library, qualified staff, laboratory and that it fulfills such other

conditions required for proper functioning of the course for teachers’

training”, shall pass an order granting recognition to such institution.

Keeping in view the legislative supremacy of the Parliament vis-a-vis the

State Legislatures in respect of the matters falling under the Union List or
L.P.A. No.145 of 2007 -: 10 :-

the Concurrent List, in terms of the provisions contained in Part XI of the

Constitution, the Supreme Court in the State of Maharashtra’s case (supra)

has held that once recognition is granted by the NCTE under Section 14(6)

of the Act, every University or the Examining Body is obliged to grant

affiliation to such institution and contrary provisions, if any, in the

University Act or in any other legislature to that extent shall not apply to

such cases. The decision mandates the grant of NOC or affiliation by the

State Govt. or a University, as the case may be, to an institution which has

been recognized by the Central Authority, namely, the NCTE under the Act.

[20]. The NCTE granted recognition to the appellants on 2.12.2006

subject to the condition of their appointing qualified staff through duly

constituted Selection Committee and as per the norms of NCTE/State

Govt./Affiliating University. The Affiliating University, namely, the MDU

conducted the inspection of each college and after pointing out certain

shortcomings accorded ‘provisional’ affiliation to the appellants on

7.12.2006 with a clear stipulation that the teaching faculty was required to

be recruited by these colleges within a period of three months which was

to be verified by the University failing which the registration of the

students of defaulting colleges shall not be made/allowed (emphasis

applied). In other words, while granting provisional affiliation to the

appellants on 7.12.2006, they were also permitted to admit students though

the teaching faculty was required to be recruited before 6.3.2007 to the

satisfaction of the University Inspection Team.

[21]. On our asking, learned Counsel for the Universities has placed

on record attested copies of the orders passed by the NCTE granting

recognition to 16 other colleges on different dates in September/October/
L.P.A. No.145 of 2007 -: 11 :-

November, 2006 as well as the orders passed by the University granting

‘provisional’ affiliation to those 16 colleges. Suffice it to say that the orders

passed by the NCTE recognizing those 16 colleges are identical to the order

dated 2.12.2006 (Annexure P-1) whereby the appellant-colleges have been

granted recognition.

[22]. We may also usefully quote the following conditions imposed

by the same University while granting provisional affiliation to 16 other

colleges in respect of whom there is no controversy:- “this conditional

provisional affiliation has been granted with the stipulation that the

concerned college shall make appointments of teaching faculty, i.e.,

Principal and Lecturers in accordance with prescribed qualifications/norms

and procedures of appointment as notified by the University (copy enclosed)

within a period of 3 months, which shall be verified by the University,

failing which the registration of the students of the defaulting college(s)

shall not be made/allowed and the college shall also not be allowed the

continuation in conditional provisional affiliation in the next session”. The

same condition mutatis mutandis has been applied to the appellant-colleges.

However, the 16 other colleges were permitted firstly to admit the students

till 15.12.2006 (Annexure P-4), followed by an extension till 24.12.2006

(Annexure P-5). The students from these colleges were permitted to appear

in the annual examination and their results have also been declared. Then

why an altogether different treatment was meted out to the appellants?

[23]. The MDU was apparently in a predicament. There was no

visible distinction between 16 colleges on one hand and the seven appellant-

colleges on the other. The University, therefore, gave its nod for admissions

to the seven appellant-colleges as well, though it invited the wrath of the
L.P.A. No.145 of 2007 -: 12 :-

SAFC vide impugned order dated 20.12.2006 (Annexure P-10).

[24]. Pertinently, the MDU in its counter affidavit not only defended

the provisional affiliation accorded to the appellant-colleges, but also

termed the decision of the SAFC step-motherly as is discernible from the

following averments:-

“As regards the advanced stage of Academic Sessions (2006-

07), it is respectfully submitted that the Committee did not
adopt uniform standard. On one hand, the Committee
allowed admissions to 16 colleges upto 15.12.2006
(Annexure P-4) which was subsequently extended upto
23/24.12.2006 (Annexure P-5), as regard vacant S.C.

Category seats. On the other hand, regarding admissions to
the petitioner colleges to which conditional provisional
affiliation had been granted by the answering respondent on
07.12.2006, the Committee refused admissions on the plea of
advanced stage of Academic Sessions whereas the
Kurukshetra University Kurukshetra held B.Ed. Admissions
counselling for 16 colleges on 8.12.2006 and 9.12.2006. It
is no doubt true that the stage was rather advanced but the
Committee could not possibly adopt different yardsticks in
the matter of making admissions. The plea of advanced
stage of Academic Sessions 2006-07 was equally applicable
to the 16 colleges in which the admissions had been allowed
upto 23/24.12.2006.” (Emphasis applied)

[25]. However, contrary to its above reproduced plea, the MDU did a

somersault and opposed the appellant’s writ petition, may be under the fear

of attracting some punitive action against its authorities as was directed by

the SAFC vide its order dated 20.12.2006.

[26]. Be that as it may, it emerges out that on the issues like non-

completion of uninterrupted 180 working days, conditional provisional
L.P.A. No.145 of 2007 -: 13 :-

affiliation subject to the recruitment of the teaching faculty as per the

University norms and/or granting three months time to the colleges to make

such recruitment as well as the conditions imposed by the NCTE, the two

sets of colleges, referred to above, were placed identically. Unfortunately,

while the 16 other colleges were extended whole-hearted support, the

appellants were denied the advantage of ongoing admission process for no

distinguishable reasons.

[27]. Keeping the above narrated factual scenario in view, we now

advert to the reasons assigned by the learned Single Judge while refusing

the seal of approval to the provisional admissions made by the appellants

under the orders of this Court. The foremost reason appears to be the

appellants’ failure to fulfill the conditions imposed by the NCTE and the

Affiliating University while granting them ‘conditional’ recognition or

‘provisional’ affiliation, namely, non-recruitment of the teaching faculty as

per the University norms or no recruitment at all. It appears that attention of

the learned Single Judge was not drawn to the fact that these inspection

reports date back to 7.12.2006, namely, before the grant of provisional

affiliation by the MDU. As per these inspection reports also, only one

college had not made appointment of the teaching faculty. To remove these

deficiencies, the University itself granted 3 months time to the appellants

and permitted them to admit the students though with a condition that in the

event of any default, the registration of the students shall not be

made/allowed to continue. The Inspecting Teams, notwithstanding the

deficiencies, never commented that these colleges did not have the basic

infrastructure for the purpose of provisional affiliation. It also appears

debatable as to whether in view of sub-section (i) of Section 14 of the 1993
L.P.A. No.145 of 2007 -: 14 :-

Act, when the NCTE is satisfied with the infrastructure and the facilities

available in an institution, can the Affiliating University be also permitted to

hold a parallel inquiry regarding standards of such infrastructural facilities.

[28]. We now turn to the Curriculum Transaction and Requirement

of Teaching Staff Regulations, 2005 framed by the NCTE, as according to

the learned Single Judge, no admissions could be made by the appellants for

the reason that in view of clause 4 of these Regulations, the colleges were

required to provide at least 150 teaching days in a year, followed by

internship in teaching for 30 days in a Secondary/Senior Secondary school

and both these conditions not having been fulfilled, no admission could be

made by the appellants irrespective of the recognition or affiliation by the

NCTE/University. In this regard, the plea of discrimination set-forth by the

appellants has also been turned down by the learned Single Judge after

observing that the illegality cannot be perpetuated.

[29]. Higher-educational standards are undoubtedly sacrosanct.

Maintenance of ideal norms and academic standards of excellence are the

need of the hour. The courts over-zealously enforce and maintain their

purity and are invariably reluctant to relax these standards.

[30]. Deeper probe into facts of the case in hand, however, reveals

that harbingers of the academic values themselves have waylaid them. The

State Govt., the State Education & Fee Committee and both the Universities

conveniently overlooked and bye-passed those very NCTE Regulations in

the case of 16 other colleges, whereas the same have been pressed into aid

against the appellants. The appellant colleges have already charged hefty

fees from the petitioner-students, the University and the NCTE have also

charged their statutory fee for according ‘recognition’ or ‘affiliation’, the
L.P.A. No.145 of 2007 -: 15 :-

deficiencies have been subsequently removed within the stipulated period

and ‘permanent recognition’ from the University as well as ‘unconditional’

recognition from the NCTE have also been secured. Resultantly, no one

except the 800 odd students, most of whom are before us, are in the dock.

Admittedly, these students figure in the merit list of the Common Entrance

Test conducted by the KUK. No other student, higher in merit, has

challenged their admissions or staked his claim for admission before the

authorities concerned or the Court of law. These students have not only

completed their one-year course but have also appeared in the annual

examination and most of them have cleared it also, though under one or the

other orders passed by this Court.

[31]. The peculiar facts and circumstances of this case, apparently

attract the maxim Actus curai neminer fact injurian (the act of the court

does wrong to none) with full force. We say so for the reason that the time

is the essence of the whole controversy. The NCTE and the MDU accorded

recognition or provisional affiliation at such a juncture that it aroused

expectations, may be illegitimate, of the appellant-colleges to admit students

in the ongoing admission process for the obvious reason that they had

already made huge investments for creating infrastructure to the satisfaction

of the NCTE. Their expectations were further uplifted by the liberal

approach adopted by all the stake holders while permitting 16 other

similarly situated colleges to admit students. The appellants wanted to

admit students strictly on merits only and approached this court on

12.12.2006 when the admissions were still being made through the

centralized counselling held by the Kurukshetra University. They were,

however, relegated to the SAFC which turned down their claim on
L.P.A. No.145 of 2007 -: 16 :-

20.12.2006. The delay in the admissions, if any, does not appear to be on

account of any lapse on the part of the colleges or the petitioner-students.

[31]. There is yet another aspect of the matter. Had it been a case of

some fraudulent commercial venture of a masqueraded institute, the

students getting admission therein would have had no claims to invoke

equity. The bona fides of the appellants are beyond any pale of doubt as

even before the completion of one academic session, they have removed the

deficiencies pointed out by the University’s Inspecting Team or the NCTE.

The experts being satisfied with the infrastructural facilities or the academic

qualifications of the teaching faculty recruited by the appellants and no

controversy having been invited by these colleges in subsequent academic

sessions, we are of the considered view that it will be too inequitous and

harsh to mar the academic career of the students, who being gullible, got

admissions and have already completed the course.

[32]. For the reasons afore-stated, we accept the appeal; set aside the

judgment of the learned Single Judge and allow the writ petitions filed by

the appellants as well as the accompanying writ petitions preferred by the

students, to the extent that the Universities shall forthwith regularize the

result of the students of the appellant-colleges admitted to B.Ed course for

the sessions 2006-07 and which have already been declared provisionally

under the orders of this Court. There shall, however, be no order as to costs.




                                                    [ Surya Kant ]
                                                         Judge


October 4, 2008.                                    [T.S. Thakur]
kadyan                                               Chief Justice