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
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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
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(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
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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
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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
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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
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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
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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/
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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
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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
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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
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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
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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
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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