BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/04/2010 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Writ Petition(MD)No.9358 of 2009 and M.P.(MD)No.1 of 2009 The Correspondent, Kaliammal College of Education, No.305/1, Pavithram Village & Post, Aravakuruchi, Karur District - 639 002 ... Petitioner Vs 1.The National Council for Teacher Education, Hans Bhavan, Wing-II, No.1, Bahadursha Zasar Marg, New Delhi - 110 002, Rep. By its Member Secretary. 2.The Regional Director, National Council for Teacher Education, Southern Regional Committee, 1st Floor, CSD Building, HMT Post, Bangalore - 560 031. 3.Tamil Nadu Teacher Education University, Lady Willington College Campus, Kamaraj Salai, Chennai - 600 005. Rep. By its Registrar. ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned proceedings issued by the 1st respondent Member Secretary NCTE in F.No.89-375/2009-appeal dated 07.08.2009, quash the same and further direct the 2nd respondent NCTE, Southern Regional Committee to grant recognition to the M.Ed Course run by the petitioner-college from the academic year 2009-2010. !For Petitioner ... Mr.Issac Mohanlal ^For Respondents 1 & 2 ... Mr.A.Sivaji For 3rd Respondent ... No Appearance :ORDER
The writ petition is directed against the proceedings of the first
respondent National Council for Teacher Education, dated 07.08.2009 and for a
direction against the second respondent, the Regional Director, National Council
for Teacher Education, Southern Regional Committee to grant recognition to the
petitioner institution for M.Ed. Course from the academic year 2009-2010.
2.The short facts leading to the filing of the present writ petition are
that the petitioner college which has been established and administered by a
public charitable trust known as “Thirumathi Kaliammal Palaniappan Educational
and Charitable Trust is started with the aim of providing professional education
in teaching to the poor and downtrodden. The college started offering one year
B.Ed Degree course in the year 2005 and the second respondent has granted
recognition from the year 2005-2006 with an intake of 100 students by order,
dated 17.11.2005 and the third respondent has granted provisional affiliation
for the academic year 2005-2006 vide order, dated 27.12.2005 which was renewed
every academic year. The petitioner also is stated to be running two year
Diploma Course in Elementary Teacher Education with the approval of the
authorities. With the aim of providing Post Graduate Teacher education by
starting M.Ed Degree Course, the petitioner has submitted an application to the
second respondent on 31.12.2007 along with a sum of Rs.40,000/- towards
processing and inspection fees. The second respondent by letter dated
28.02.2008 has directed to furnish further particulars and they were also
furnished on 09.04.2008. The inspection team of the second respondent has
visited the college on 06.05.2008 and certain minor defects were noticed and
they were also rectified as per the compliance report, dated 09.09.2008. There
was a re-inspection to the college as per letter dated 16.10.2008 for which the
college paid another sum of Rs.40,000/- on 14.11.2008 and consent letter was
given for inspection on 02.02.2009. The questionnaire in the modified form was
sent on 18.02.2009 by the second respondent stating that the inspection team
would visit on 13.03.2009 and the questionnaire should be submitted in the
meantime. Accordingly, the questionnaires were submitted along with necessary
documents on 17.03.2009. The inspection team visited on 12.03.2009 instead of
13.03.2009. By order, dated 21.04.2009, the second respondent has refused to
grant recognition due to certain other deficiencies. An appeal was filed by the
petitioner against the said order to the first respondent on 15.05.2009 along
with a demand draft for Rs.10,000/- and the first respondent has rejected the
appeal on 07.08.2009 on three grounds:
“i)As per the Visiting Team Report dated 12.03.2009,the availability of
built up area is only 32,169 square feet, which is not adequate for running all
the three courses
ii)The institution failed to shift to its own building even after the
expiry of three years
iii)The institution is eligible for running M.Ed Course only if it was
already running the B.Ed Course in the same premises but there was no B.Ed
course run by the institution in the premises where it applied for running the
M.Ed Course”.
3.It is stated that at the time when the recognition was granted for B.Ed
Course, the same was given on condition that the petitioner should shift from
the rented premises to its own building after obtaining permission from the
Southern Regional Committee within three years. It was, thereafter, the college
set up its own campus by building a total built up space of 47,677 square feet
(4431.07 square meter) and the petitioner college intimated the second
respondent on 20.03.2008 regarding the completion of the construction seeking
permission for shifting in its letter, dated 09.09.2008 along with a sum of
Rs.41,000/- towards processing and inspection fees. There was no response to the
said application inspite of the reminder, dated 31.03.2009. It is stated that
the second respondent has directed the petitioner to furnish some more documents
by letter, dated 12.06.2009. Inspite of the fact that those documents were
already furnished, the college once again furnished the same on 27.06.2009 and
the second respondent is still keeping the same without passing any orders. The
impugned order of the first respondent rejecting the appeal is challenged on
various grounds including that on the one hand that the application for
permission to shift the B.Ed Course, is pending with the second respondent and
the second respondent has not passed any order but on the other hand the second
respondent has refused recognition on the ground that the institution had not
shifted to its own building within three years; that the second respondent
having granted recognition for B.Ed Course, in the impugned order it is stated
that such recognition was not given; that in respect of built up area, the
conclusion arrived at by the visiting team that it is only 32,169 square feet is
factually incorrect as it is seen in the building completion certificate issued
by the Chartered Civil Engineer and Government Registered Valuer, the total
built up space is 47,677, square feet (4431.07 square meter), which is
sufficient to run the three institutions. It is stated that the built up area
of 3000 square meter is sufficient for running B.Ed and M.Ed and Diploma in
Teacher Training as per the National Council for Teacher Education (Recognition
Norms & Procedure) Regulations 2007, since the petitioner institution is having
4431.07 square meter it is sufficient for running the three institutions; that
the impugned order passed by the first respondent is illegal, having failed to
take note of the actual position as such.
4.In the counter affidavit filed by the first and second respondents, it
is stated that while recognition was granted for B.Ed and D.T.Ed courses, the
same was with a condition that within three years, the building is to be shifted
to its own place and the change of premises must be obtained with the prior
approval of the Regional Committee. Such change of premises shall be accompanied
by a demand draft of Rs.40,000/-. It is stated that the petitioner has
submitted an application on 31.12.2007 for running M.Ed Course which was
scrutinised and deficiencies were intimated. The reply dated 20.03.2008 received
by the second respondent on 21.04.2008 and the visiting team report dated
12.03.2009 were considered by the second respondent in its meeting held on 25
and 26 of March 2009 and noted certain deficiencies still persist and an order
dated 21.04.2009 was passed by the second respondent refusing to grant
recognition for more than one reasons. Against the rejection order, the
petitioner has filed an appeal before the appellate authority, on 07.08.2009.
The appellate authority after considering every aspect on merit passed the
impugned order. It is stated that the petitioner was granted recognition for
D.T.Ed and B.Ed on 28.09.2006 and 17.11.2005 respectively on condition that
within three years, the petitioner has to acquire its own land. It is stated as
per Regulation 8 (11) prior approval is necessary in case of change of premisses
and that is possible only after due inspection of the institution at the new
site. It is stated that on 09.09.2008 a requisition was made by the petitioner
for shifting to the new premises and no approval was accorded, since the
required documents were not submitted. Therefore, without such approval, the
institution ought not have shifted to the new premises, that is one of the
reasons mentioned in the order. Even though it is admitted that such application
for shifting was received, without prior approval shifting cannot be effected.
The petitioner was directed on 12.06.2009 to furnish certain documents and
action is being taken in this regard and after verification necessary order will
be passed. It is stated that recognition was sought for premises at 305/1,
Pavithram, Karur-Kovai Road in which no B.Ed course is being run as on date. As
per the regulation recognition to start M.Ed course is possible only in the very
same premises where B.Ed Course is already run on the date of application for
M.Ed Course. In the proposed premises, no B.Ed course is being run. Therefore,
the approval for M.Ed Course was rejected. As far as the building completion
certificate is concerned, it is stated that such certificate issued by a private
engineer or by a registered valuer is not sufficient. The visiting team found
the built up area of 32,169 sq.ft which is less than the requirement of 3000
sq.mt (32,292.78 ft). As per the regulation, the building of the institution
should be in a completed form on the date of inspection, especially when the
inspection team found that the built up area is only 32,169 sq.ft and any
construction made by the petitioner after the inspection cannot be taken into
account. It is stated that on 19.09.2006 is the date of approval of the
building plan by the competent authority and 18.12.2007 is the date of
completion of the building. The competent authority who gives the building
plan approval has not given the building completion certificate, which was given
by a private engineer which is not acceptable. According to the respondents,
there are three records showing different area of construction. The petitioner
in his affidavit, dated 12.03.2008 has stated that the built up area is 2,229
sq.mt, while the completion certificate submitted by the petitioner shows that
the constructed area is 47,677 sq.ft whereas the visiting team report states
that the constructed area is 32,169 sq.ft.
5.The petitioner has not submitted his questionnaire and the details of
built up area, is not clear and therefore, the said factual aspect cannot be
gone into in this writ petition. It is also denied that the petitioner college
is having sufficient built up area for the purpose of grant of recognition for
M.Ed Course. It is stated that the petitioner is fully aware of three years
period contemplated in the 2005 recognition order itself and he has not taken
steps by the purpose of shifting by obtaining prior approval. Therefore
factually, B.Ed Course is not conducted in the same premises and the petitioner
is not entitled for recognition of M.Ed Course in that premises.
6.Mr.Issac Mohanlal, learned counsel for the petitioner would submit that
on the face of it there are contradictions and the visiting team has not
understood the actual constructed area in its proper sense and there has been a
gross discrepancy. He would also submit that earlier, the second respondent has
found four deficiencies apart from shifting within three years. It is stated
that even otherwise, the petitioner has added further extent of 9398 sq.ft. by
further construction and that fact has not been taken note of. It is stated that
while the recognition was granted for B.Ed Course on 17.11.2005 even before the
expiry of three years, on 09.09.2008 itself, the petitioner has applied for
shifting to the new place by paying the inspection charges and that matter is
pending before the second respondent and therefore, the fault is not on the part
of the petitioner. It is also his contention that the built up area includes
the carpet area, leaving out the carpet area, the inspection done by the
visiting team is not permissible in law and even the appellate authority namely
the first respondent failed to take note of the glaring mistake committed by the
second respondent through its visiting team. It is his contention that as per
the Act, the deficiencies could be rectified at any point of time and it is
stated that the appellate authority has failed to take note of the glaring
illegality committed by the visiting team. It is his contention that immediately
before the three years of completion an application was made along with
necessary fees on 09.09.2008 itself and the matter is still pending before the
second respondent and there is no fault on the part of the petitioner and
according to him, no prior permission is required as per the original order of
recognition. It is his submission that the impugned orders are passed without
application of mind. He also relied upon a judgment of this Court reported AIR
1999 Madras 290 (E.V.Perumalswamy and Padmavathi Educational Trust and another
Chennai Vs.All India Council for Technical Education and another, Chennai) and a
decision of the Hon’ble Supreme Court reported in 1996(8) SCC 330 (Al-Karim
Educational Trust and another Vs. State of Bihar and others) and he has also
relied upon the various documents which are filed in the compilations of papers.
7.On the other hand, it is the contention of Mr.A.Sivaji, learned counsel
for the respondents that the deficiencies were intimated more than once to
rectify, it is because of the conduct of the petitioner in not rectifying, it
has resulted in many inspections. It is his submission that it is really because
of the petitioner that discrepancy arose. In finding out the extent this Court
cannot take any decision under Article 226 of the Constitution of India since
the same requires the factual assertion and also appreciation of evidence. It is
his submission that the building completion certificate has to be given by the
public licensing authorities and not by the private persons of any choice of the
petitioner and the same must be in the proper format. He would also submit that
as per Act 13/65, the public authority is a person who is recognised by the
Government and therefore, according to him, the authority contemplated under the
Act alone has to give certificate for the building completion. It is also his
submission that when the appellate authority confirms the original authority’s
order, there is no necessity for a detailed discussion about the facts. It is
his further submission that the petitioner who has not chosen to give the
questionnaire, has no right to question the correctness or otherwise of the
impugned order.
8.I have considered the rival submissions made on either side and perused
the entire materials available on record.
9.It is seen that the petitioner trust was granted recognition by the
second respondent to run B.Ed.Course on 17.11.2005. At that time, the courses
were run in a rented premises at No.6, Anna Salai, New Bus Stand Backside,
Karur-639 002, Tamil Nadu. While granting recognition as per Section 14(1) of
the NCTE Act, 1993 for running the B.Ed Course with an intake of 100 students,
one of the conditions which was imposed was that “the institution shall shift to
its own premises within three years from the date of recognition (in case the
course is started in temporary premises)”. Of course, the recognition is subject
to the other provisions of the NCTE Act, Rules, Regulations and Orders. It is
not in dispute that the said recognition was given by the second respondent
after inspection. The Bharathidasan University which was affiliating University
at that time has granted affiliation for the academic year 2005-2006 to run a
self-financing college of education in the name and style of “Kaliammal College
of Education” at No.6, Anna Salai, New Bus Stand Backside, Karur to offer B.Ed
course for one year duration and that provisional affiliation which was subject
to various conditions has also continued for the subsequent years 2006-2007 and
2007-2008 even after the 3rd respondent University has taken over control in
respect of affiliation of Teacher Training Colleges.
10.As per the Norms and Standards for Master of Education Programme
leading to Master of Education (M.Ed) Degree as seen in the Appendix-5, the
built up area for running B.Ed plus M.Ed Course it is 2000 sq.mts and for B.Ed
plus D.Ed and M.Ed Course is 3000 sq.mts equivalent to 32292 sq.ft. It is
seen that the petitioner trust has applied to the second respondent on
31.12.2007 for starting M.Ed Course with an intake of 25 students from the
academic year 2008-2009 along with a Demand draft for Rs.41,000/- towards the
application and processing fee. The application was for starting M.Ed Course in
S.F.No.305/1, Pavithram, Karur-Kovai Road, Pavithram Post, Aravakkurichi (TK),
Karur District on a self-financing basis and the application came to be
submitted in the appropriate format. The second respondent on receipt of the
said application has asked for the rectification of the following:
“I.A copy of building completion certificate from the Government authority
is not submitted.
II.Land usage certificate for educational purpose from the concerned
authorities is not submitted.
III.Land free encumbrances certificate from the competent authority is not
submitted
IV.Affidavit relating to details of land possessed on Rs.100 stamp paper
attested by Oath Commissioner has not been furnished.(format enclosed)”
Out of the defects the major deficiency was for building completion certificate
from the Government authority. By letter dated 20.03.2008, the petitioner has
submitted the building completion certificate stating that construction has been
put up adhering to the norms of NCTE in the new premises at S.F.No.305/1,
Pavithram, Karur-Kovai Road, Pavithram Post, Aravakkurichi (TK), Karur District.
It is also seen by the letter dated 09.04.2008 of the petitioner reporting to
the second respondent enclosing building completion certificate, land usage
certificate, Encumbrance certificate and affidavit as required under the order
of the second respondent, dated 28.02.2008. The contents of the affidavit filed
by the petitioner shows that the total area of land possessed by the trust is as
25,551.6 sq.mtrs while the built up area is as 2229.6000 sq.mtrs. After the
visiting of the team on 06.05.2008 and based on the report, the second
respondent by its letter dated 08.08.2008 has again found the following
deficiencies and directed the petitioner to rectify:
“The built up space for existing B.Ed course is 5093 sq.ft and proposed
M.Ed course is 7772 sq.ft. The total built up space is not adequate for both
existing and proposed shifting D.Ed Course.
Furniture is not adequately provided in Principal and Office room.
The details of additional E.T.lab, Psychology Lab and Computer lab,
equipments to be provided
The details of Educational books, Reference books & Journals and Research
books with proofs to be submitted exclusively for M.Ed Course”.
11.Again, in the said letter, the second respondent directed the
petitioner to submit proof duly certified by the competent authority for having
complied with the requirement. While meeting the said deficiencies, the
petitioner has replied to the second respondent dated 09.09.2008 pointing out
that there has been some mistake in respect of the first deficiency and stated
that total built up area in the basement floor is 4423.58 sq.ft(411.11 sq.mtr),
ground floor-21627.44 Sq.ft (2009.98 sq.mtr) and first floor -21627.44 Sq.ft
(2009.98 sq.mtr), totally, the built up area available has been stated as 47,678
sq.ft (4429.286 sq.mtr).
12.It is stated as per the new regulation 5(5) of NCTE (Recognition Norms
and Procedure) Regulations, 2007 notified with effect from 10.12.2007, the total
built up area required for three institutions of B.Ed, D.Ed & M.Ed is 3000
Sq.Mtr. That apart, in respect of the deficiencies regarding the furnitures in
the Principal and office rooms, additional equipments in labs and deficiency in
respect of books, the same was also replied as having rectified giving number of
books and so on. Incidentally, the building completion certificate issued by the
Government registered valuer stated to have been filed dated 20.08.2008 also
certified that the petitioner trust has completed for the basement, ground and
first floors to the built up area as per the approved plan and estimate at
47,678 sq.ft. It is also seen that by letter, dated 09.09.2008 addressed to the
second respondent, the petitioner has sought permission from the second
respondent for shifting the B.Ed and D.Ed courses from the rental premises to
its own place at S.F.No.305/1, Pavithram, Karur-Kovai Road, Pavithram Post,
Aravakkurichi (TK), Karur District along with a demand draft for Rs.1,000/-
towards application fee and demand draft for Rs.40,000/- towards inspection of
the visiting team and requested the team to visit and pass orders.
13.As per the letter of the second respondent, dated 16.10.2008 directing
the petitioner to pay a re-inspection fee of Rs.40,000/- on considering the
representation of the petitioner along with the VCD and other documents, the
petitioner by communication, dated 14.11.2008 has paid a sum of Rs.40,000/- for
re-inspection. Inspite of it, it is astonishing to note that by communication,
dated 02.02.2009, the second respondent has insisted for payment of Rs.40,000/-
towards re-inspection fees and also asked for consent for inspection which is as
follows:
“With reference to the above, you are requested to give your Consent for
Inspection along with a self attested copy of the completion certificate of
building for which affidavit, building plan and land documents were submitted.
At the time of visit of the team of experts the institution concerned
shall arrange for the inspection to be videographed in a manner that all
important infrastructure & instructional facilities are videographed along with
interaction with Management and staff (if available)
It is informed that the inspection shall be conducted after receipt of the
consent of the institution along with above-mentioned documents.
Format of Building Completion Certificate is enclosed and the same shall
be obtained from Government authorities and submit along with consent letter.
A Questionnaire enclosed should be duly filled by the authorised person of
the management and should be submitted along with consent letter.
You have to pay Rs.40,000/- towards re-inspection fees. Please send the
Demand Draft along with consent for inspection. If already paid ignore the
same”.
However, by a subsequent letter dated 02.03.2009, the second respondent has
directed the petitioner to be ready for inspection by a team of experts on
13.03.2009.
14.In respect of shifting of the college to new premises the petitioner
has by its reminder dated 31.03.2009 intimated that already an application dated
09.09.2008 is pending for which there was no reply. In the meantime, certain
questionnaires were asked for and the same were submitted by the petitioner in
the appropriate format. It was, thereafter, the second respondent by order,
dated 21.04.2009 has rejected the application of the petitioner based on re-
inspection stated to have been conducted on 12.03.2009 for the following
reasons:
“As per the affidavit dated 12.03.2008 point 2.2, the available built-up
space is 2,229 sq.mtrs. the building plan & building completion certificate
shows 47677 sq.ft and the VT report states 32,169 sq.ft The Management has not
submitted the filled in Questionnaire and details of built-up space available
for Teacher Education courses and other courses, if any, in the same complex.
There is no clarity from the documents about availability of built-up space for
existing D.T.Ed, B.Ed and proposed M.Ed Course, as per regulations.
The books in the library numbering 5166 are not adequate for existing
D.T.Ed, B.Ed and proposed M.Ed course; whereas 7000 books are required as per
regulations
The management has not obtained permission for shifting of existing D.T.Ed
and B.Ed Courses to new permanent premises where new building was constructed in
2008.
The affidavit dated 20.08.2008, approved building plan and building
completion certificate and Visiting team reports are not in conformity with each
other as far as the data in built-up space available for all existing and
proposed courses”.
15.As against the said order of rejection, the petitioner has filed a
statutory appeal to the first respondent on 15.05.2009 with a specific ground
that originally in the affidavit, dated 12.03.2008, the built up area stated was
2227 sq.mts and thereafter, in order to bring the existing D.T.Ed and B.Ed
courses to the new premises, further construction was made, making the total
built up area as 4431.07 sq.mts (47,677 sq.ft) as per the building completion
certificate, dated 20.08.2008 and the visiting team has not calculated the
carpet areas of the rooms etc. In respect of the requirements regarding the
books and other compliances, even pending the statutory appeal before the first
respondent, the petitioner has made request to the second respondent to cause
further inspection with various documents enclosed as it is seen, in the
communication, dated 27.06.2009 and ultimately, the first respondent being
Appellate Authority has passed the impugned order rejecting the appeal based on
the visiting team report, dated 12.03.2009 stating that availability of the
built up area is 32,169 sq.ft which is not adequate to run three courses, apart
from stating that within the maximum period of three years, the petitioner has
not shifted the other two courses in its own place with prior approval and that
unless the petitioner is running B.Ed course in the premises itself, no
permission will be granted for M.Ed Course.
16.It is relevant for the purpose of this case, to extract the sub Clauses
7 to 11 to the Regulation 8 of the Regulations and Norms and Standards made by
the NCTE with effect from 10.12.2007 as hereunder:
“7.No institution shall be granted recognition under these regulations
unless it is in possession of required land on the date of application. The land
free from all encumbrances could be either on ownership basis or on lease from
Government/Government institutions for a period of not less than 30 years. In
cases where under relevant State/UT laws the maximum permissible lease period is
less than 30 years, the State Government/UT Administration law shall prevail.
However, no building could be taken on lease for running any teacher training
course.
8.The institution/society shall furnish an affidavit in the prescribed
form on Rs.100 stamp paper duly attested b Oath Commissioner/Notary Public
stating the precise location of the land (village, district, state etc.), the
total area in possession and the permission of the competent authority to use
the land for educational purposes, mode of possession i.e. ownership or lease.
In case of Government institutions, the said affidavit shall be furnished by the
Principal or the Head of the institution or any other higher authority. The
affidavit shall be accompanied with the certified copy of land ownership/lease
documents.
9.The affidavit shall be relied upon by the Regional Committee as an
authentic self-declaration. The copy of the affidavit shall be displayed by the
institution on its official website so as to make the self-declaration available
in public domain. In case the contents of the affidavit are found to be
incorrect or false, the society/trust or the institution concerned shall be
liable for action under the relevant provisions of Indian Penal Code and other
relevant laws.
10.At the time of inspection, the building of the institution shall be
complete in the form of a permanent structure on the land possessed by the
institution in terms of Regulation 8(7) equipped with all necessary amenities
and fulfilling all such requirements as prescribed in the norms and standards.
the applicant institution shall produce the original completion certificate,
approved building plan in proof of the completion of building and built up area
and other documents to the Visiting Team for verification. No temporary
structure/asbestos roofing shall be allowed.
11.In case of change of premises, prior approval, of the Regional
Committee concerned shall be necessary, which could be accorded after due
inspection of the institution at the new site. The change can be permitted to a
site which, if applied initially, could have qualified for establishment of an
institution as per prescribed norms of NCTE. The change shall be displayed on
website thereafter. The application for change of premises shall be accompanied
by a demand draft of Rs.40,000/- of a Nationalised Bank drawn in favour of the
Member Secretary, NCTE and payable at the city where the Regional Committee is
located. Similar procedure would be applicable in case of change of
management/society/trust etc., excluding change of Management Committee as per
registered by-laws of the management/society/trust”.
17.In accordance with the said Regulation as seen in Appendix 5 which is
applicable for programme leading to Master of Education (M.Ed) Degree, the
facilities under paragraph 5 indicates the infrastructure is as follows:
“5.1.Infrastructure
5.1.1.The institution must have at least 2500 sq.mts land whereupon built
up area consisting of class rooms etc., shall not be less than 2000 sq.mts
inclusive of the space meant for B.Ed Classes. Space in each instructional room
shall be 10 sq.ft. per student.
Built up Area for running other courses in combination with M.Ed programme
shall be as under:-
5.1.2.For an intake of 25 students, there shall be provision for at least
one class room, one hall/seminar room, laboratories for conducting instructional
activities, separate rooms for the Professor/Head, for faculty members to
accommodate seven to eight students, office for the administrative staff and a
store.
5.1.3.Safeguard against fire hazard be provided in all parts of the
building
5.1.4.The institutional campus, buildings, furniture etc., should be
barrier free
5.1.5.Hostel for boys and girls separately and some residential quarters
are desirable”.
18.It is relevant to point out that in the norms prescribed by the NCTE,
no where it indicates that the building completion certificate should be issued
in respect of the building only by a particular authority. It is only in the
various notices issued by the second respondent, the second respondent has been
requesting to produce the completion certificate in a format and to be issued by
a Government authority. Mr.A.Sivaji, learned counsel for the respondents 1 and
2, in his submission has referred to a Form prescribed under the Tamil Nadu
Public Buildings (Licensing) Act, 1965 and the rules made thereunder. In the
present case, it is seen that the petitioner has in fact submitted a building
completion certificate issued by a Chartered Civil Engineer and Government
Registered Valuer namely Mr.R.Ramasamy which is as follows:
“Completion Certificate
Certified that the Ground floor, first floor & second floor construction
of “Thirumathi Kaliammal Palaniappan Educational & Charitable Trust” building in
S.F.No.305/1 & 303/2 at Karur Covai Road, Pavithram Vilalge, Aravakurichi Tk.,
Karur Dt., have been completed for the Basement, Ground floor & first floor
47,678 Sq.ft builtup area as per the approved plan and estimate.
The College building is ready for running the Institution.”
19.The format in which such certificate is to be issued by the valuer has
also been produced with the following contents:
“Building Completion Certificate
I hereby certify that, I have personally inspected the land and building
mentioned in the statement below and the same is based on the registered
documents, date measurements and specifications found in the site.
1.Date of Inspection by the
Engineer : 12.02.2009
2.Owner of the Land & Building
with Address
:Tmt.Kaliammal Palaniappan
Educational & Charitable Trust,
305/1, Karur-Covai Road,
Pavithram,
Karur- 639 002
3.Type : own
4.Location with survey No.,
Street, Ward No.
name of the place
Panchayat : S.F.No.305/1, 303/2,
Pavithram Village & Panchayat
Aravakurichi Tk.,
Karu District.
5.Date of Registration
of land : 09.06.2006
6.Registered in the office of
Sub Register with address : Sub Register Office
Karur - West, Karur Dt.,
7.Building Plan approved by
(address of panchayat) : Pavitharam village &
panchayat,
Aravakurichi Tk., Karur Dt.,
8.Year of construction : 2008
9.Purpose for which the building
is being used/proposed to be used : For teacher Education Courses
10.Details of Construction of building
(Roofing – pl.mention RCC/
Asbestos/Tiled/any other pl.
Specify) : B.F.: RCC : 4423.58 sq.ft
G.F.: RCC : 21627.44 sq.ft
F.F : RCC : 21627.44 sq.ft
11.Land usage certificate for
educational purposes from the
concerned
Govt., authorities obtained
details : Date of issue of Certificate
20.08.2008
Issued by : Er.R.Ramasamy"
On verification of the above on site, I hereby certify that construction
of the building is completed in all respects and the building is structurally
sound to be used for Educational purposes and having the load bearing capacity
as per the latest Indian Standards”.
20.In the absence of any stipulation in the statutory regulation that the
building completion certificate is to be issued only by a specified
Governmental authorities, it is not known as to how such valuation certificate
issued by a registered engineer who is a government valuer, cannot be taken into
consideration. In fact, the completion certificate is necessary only to enable
the visiting team to check up along with the said certificate about the
correctness of measurements. When the specific ground has been taken by the
petitioner before the first respondent appellate authority that the measurement
has not been taken in respect of the built up area taking into account of the
additional construction put up by the petitioner in the extent of 9442 sq.ft in
addition to even the admitted extent of 32392 sq.ft apart from not considering
any of the grounds about common areas like the passage, balcony, staircase and
verandah areas etc., the first respondent has not taken note of the same which
shows a total non application of mind on the part of the first respondent in
disposing of the appeal.
21.It is relevant because while the second respondent in the original
order of rejection has rejected on four grounds as elicited above, the first
respondent has restricted only itself to the extent of area required for the
purpose of conducting of three courses, apart from taking another ground that
permission for shifting from the old place to the new place was not obtained
within three years from the original recognition granted in 2005.
22.As far as the non obtaining of permission to shift the B.Ed and D.T.Ed
from its own original rented premises to the present place as elicited above,
even in the original order of recognition granted by the second respondent dated
17.11.2005 for B.Ed course stipulating that the petitioner should shift to its
own premises within three years, there are no condition that it must be with the
prior approval. Even otherwise as stated above, much before the expiry of three
years, namely on 09.09.2008 itself, the petitioner has made an application to
the second respondent seeking permission for shifting to the new place by paying
necessary charges and that was followed by a subsequent reminder also dated
31.03.2009 and that application admittedly has not been disposed of by the
second respondent. If the statutory authority to whom such application for
shifting has been made as per the original grant of recognition within the time
stipulated thereunder and if such statutory authority fails to perform its
function, it is not known as to how that can be put by the second and first
respondents against the petitioner in respect of the claim of approval for M.Ed
Course.
23.It is relevant to point out at this stage that even in the order of the
first respondent, appellate authority, having impliedly accepted the compliance
of the petitioner regarding library books, the first respondent has only chosen
to reject on the three grounds which in my considered opinion has not been made
on proper application of mind.
24.Unnecessary prolongation of any application by a statutory authority
and unreasonable withholding of the same has to be necessarily inferred that
there was no objection on the part of the respondents for the petitioner to
shift its B.Ed and D.T.Ed Course to its newly constructed place and that can
never be put against the petitioner as a deficiency for considering the
application for recognition of M.Ed Course. In Al-Karim Educational Trust and
another Vs. State of Bihar and others reported in 1996(8) SCC 330 under similar
circumstances, while dealing with the temporary affiliation to the minority
institution as per the provisions of the Bihar Medical Educational Institutions
(Regulation and Control) Act, 1982, the delay on the part of the authority in
unnecessarily keeping the application for a prolonged period was held against
the authority and it was held that there can be presumption. Of course, in the
matter of grant of affiliation, the Hon’ble Supreme Court has held that what is
required is the minimal and satisfactory requirements to keep the matter going
and a foolproof or absolute adherence is not possible in all these cases and
practical view has been taken.
25.On the facts of the present case, it is not the case of the respondents
that the petitioner has admitted any student in the M.Ed., course without
recognition. In these circumstances, the various aspects discussed by the
Hon’ble Supreme Court in the above said judgment requires a careful
consideration which are as follows:
“11.In the matter of grant of affiliation, it is ordinarily for the State
Government after consulting the Medical Council of India to arrive at a
decision. However, if it is found that the affiliation is being withheld
unreasonably or the decision is being prolonged for one reason or the other,
this Court would, though reluctantly, be constrained to exercise jurisdiction.
We must make it clear that we are not diluting the importance of fulfilling the
essential prerequisite set by the Medical Council before granting recognition.
The facts of this case are very special and exceptional. In the present case, we
take note of the following aspects:
(a) The appellant-Institution was granted temporary affiliation nearly 6
years ago (29-12-1989).
(b) More than three years ago, (on 16-7-1992) this Court directed that
students may be admitted and permitted to take examination, subject to certain
conditions and this has been so done.
(c) In view of the earlier orders of this Court dated 28-9-1993, the
only question that survives for consideration is whether affiliation should be
granted to the appellants.
(d) On more than three occasions, this Court, after perusal of the
affidavits of the parties and report of the authorities concerned about the
deficiencies pointed out, directed time-bound inspections, by Medical Council of
India, along with other authorities bearing in mind that we are concerned with
the post-establishment stage.
(e) At one stage, it came to light that the original deficiencies having
been removed, new or further deficiencies were pointed out by the Medical
Council of India, which were ordered by this Court to be removed.
(f) Finally, the appellants filed a tabular statement along with an
affidavit dated 4-9-1995, stating that even the new deficiencies pointed out
have been removed and the averments in that behalf stand uncontradicted.
(g) The appellants claim to be a minority institution and the
difficulties/or even the imponderables to start a new institution cannot be
gainsaid. To insist on fulfilling all requirements at a stretch in modern
conditions is not a practical proposition and ordinarily, only those aspects or
requirements, which in the minimal will give a good start for effectively
imparting education, with ancillary requisites may be considered sufficient in
the extraordinary circumstances of this case.
(h) It is impractical to insist, for a foolproof or absolute adherence
to all requirements without regard to their importance or relevance, for the
purpose of imparting education, in a practical way, especially because the
Institution has begun to function, students admitted to the Institution have
taken the examination and the fate of a good many number of students should not
hang in the balance in an unending or everlasting manner.
(i) In the final analysis, the question to be posed is whether there
exists the minimal and satisfactory requirements to keep the matter going, and
not whether better arrangements that will render the set-up more efficient and
more satisfactory, should be insisted as “a wooden” rule.
(j) It may be that there are some minor deficiencies here and there
which call for rectification. Time can certainly set right such matters. What is
required is a total, practical, overall view in the light of the latest tabular
statement filed along with the affidavit dated 4-9-1995. Material placed before
the court goes to show that there has been ‘substantial’ though not literal
compliance with the deficiencies pointed out in the latest report dated 28-6-
1995.
(k) Lapse of time and the turn of events call for urgent action and any
delay on that score will entail untold hardship to the students and the
Institution”.
26.Mr.Issac Mohanlal, learned counsel for the petitioner would rely upon a
copy of the visiting team report which runs as follows:
“Infrastructural and instructional facilities provided for running D.T.ED
and B.Ed courses are satisfactory. The management has provided all the
additional requirement for starting M.Ed. Course. The college is situated in a
rural atmosphere and is well connected by road and transport. The management is
also constructing a very big building on the campus to provide hostel
facilities. The management has made all the preparations to start M.Ed Programme
from the academic year 2009-2010”.
Even in the descriptive informations provided by the visiting team members,
there are remarks made at various occasions regarding Library, Principal &
Faculty rooms as suitable for the proposed M.Ed course. Likewise, regarding
furniture, it is stated to be adequate and sufficient and incidentally,
glasswares and chemicals were found to be adequate. Psychology test materials
and equipments were found adequate. Various sports equipments were also found to
be adequate.
27.A close scrutiny of the entire records show that unfortunately, the
first and second respondents have been taking an unwanted and defiant attitude
against the petitioner for the reasons best known to them by taking different
stands at different time only for the purpose of rejection of the application as
evident from the materials which have been assessed in detail above. This
attitude has to be necessarily curtailed at least by these statutory authorities
in the larger interest of enabling some of the genuine institutions who come
forward to impart education on self-financing pattern. In the present context of
the Government’s genuine inability to provide complete education at every stage
due to various reasons like financial constraint, want of infrastructure etc.,
creating such unnecessary and unwanted impediments for the institutions seeking
to conduct courses are not in the interest of the nation as a whole. It is true
that these authorities are expected to keep constant vigil over the functioning
of those institutions regarding the various irregularities affecting the human
life like that of the capitation fee, conducting of courses without absolutely
having any infrastructure, exploiting unemployment by employing teachers with
less pay etc., which are the actual requirements and expectations instead of
discouraging genuine entrepreneurs from establishing educational institutions.
On the facts and circumstances of the case, I am satisfied that the conduct of
the respondents is only frustrating the minds of the philanthropists from
thinking of doing some service to the cause of education. The flimsy grounds
with which such applications are rejected are tiresome tend to cause damage and
suffering to posterity. Hon’ble Mr.Justice S.S.Subramani,(as His Lordship then
was) pointed out in E.V.Perumalswamy and Padmavathi Educational Trust and
another Chennai Vs.All India Council for Technical Education and another,
Chennai reported in AIR 1999 Madras 290 expressing anguish regarding such
attitude of the responsible authorities, as follows:
“20.It seems to be the attitude of the respondents that they have learnt
only to reject the application for some reason or other and they have not
considered the legal position, even though the same has been repeatedly informed
to them by various decisions of this Court. The approach should be whether there
are minimum facilities available for starting an Institution and whether with
that minimum requirements, the Institute can go on. The approach should not be
to reject all the applications on the basis of flimsy grounds. It is
unfortunate that the Authorities have failed to follow this, whenever an
application is being filed for seeking permission to establish an Institution.
Merely because a permission is required to be sought for, the Authorities should
not think that they are above the law and their action cannot be challenged.
Their action should be reasonable. When the State is not in a position to
establish the colleges as is required, private educational institutions are
coming forward and take up that responsibility. When that responsibility is
taken up by them, the attitude of the respondents should not be to defeat the
good intention of these applicants”.
28.In such view of the matter, the impugned order of the first respondent,
dated 07.08.2009 stands set aside. The writ petition stands allowed with a
direction to the second respondent to cause fresh inspection on the petitioner’s
institute in the new premises with the team consisting of the technically
qualified persons and pass appropriate orders regarding the grant of recognition
to the petitioner institution to run M.Ed Course along with the application of
the petitioner, dated 09.09.2008 followed by reminder, dated 31.03.2009 seeking
permission to shift the B.Ed and D.T.Ed courses from the rental premises at
No.6, Anna Salai, New Bus Stand Backside, Karur-639002 to the present
constructed place S.F.No.305/1, Pavthiram Village and Post, Aravakuruchi Taluk,
Karur District and such exercise shall be completed within a period of eight
weeks from the date of receipt of a copy of this order.
sms
To
1.The National Council for Teacher Education,
Hans Bhavan, Wing-II,
No.1, Bahadursha Zasar Marg,
New Delhi – 110 002,
Rep. By its Member Secretary.
2.The Regional Director,
National Council for Teacher Education,
Southern Regional Committee,
1st Floor, CSD Building,
HMT Post,
Bangalore – 560 031.
3.Tamil Nadu Teacher Education University,
Lady Willington College Campus,
Kamaraj Salai,
Chennai – 600 005.
Rep. By its Registrar.