Chairman, Bhartia Education Soc. & Anr vs State Of H.P. & Ors

CHAIRMAN, BHARTIA EDUCATION .......APPELLANTS SOCIETY & ANR.

Vs.

STATE OF HIMACHAL PRADESH & .....RESPONDENTS ORS

WITH

CIVIL APPEAL NO. 1228 OF 2011 [Arising out of SLP(C) NO. 5346 of 2006]

CIVIL APPEAL NO. 1229 OF 2011 [Arising out of SLP(C) NO. 15722 of 2006]

CIVIL APPEAL NOS. 1230-1231 OF 2011 [Arising out of SLP(C) NO. 18835-18836 of 2007]

CIVIL APPEAL NOS. 1232-1233 OF 2011 [Arising out of SLP(C) NO. 19217-19218 of 2007]

O R D E R

R.V.Raveendran J.,

Leave granted. Heard.

2. Bhartia Education Society (`Society' for short) runs

an institute known as Rameshwari Teachers Training Institute

(`Institute' for short) at Gandhi Nagar, Kullu, Himachal

Pradesh. The Institute was recognized by National Council for

Teacher Education (for short, `NCTE') by order dated

17.7.2000 for conducting Two-year Junior Basic Training (JBT)

course with an intake of 50, from the academic session 2000-

2001. NCTE increased the intake to 100 from the academic

session 2002-2004. After getting recognition, the Institute

applied for affiliation to the Examining Body - Himachal

Pradesh Board of School Education (`Board' for short) on

31.8.2001. The Board granted affiliation to the Institute for

the two-year JBT course (2001-2003) by two orders that is

order dated 31.12.2001 for the first year of the two-year

course (2001-2002) and order dated 27.12.2002 for the second

year of the two-year course (2002-2003). The Board however

did not grant affiliation for the subsequent JBT courses and

in fact refused affiliation by order dated 20.1.2004.

Ultimately it is stated that affiliation to the Institute was

granted by the Board only in the year 2009. The State

Government by letter dated 17.10.2002, however granted one

time relaxation in regard to students admitted by the

Institute for the academic sessions 1999-2001 and 2000-2002

and directed the Board to conduct the examination for those

students. In compliance thereof the Board permitted the

eligible students of 1999-2001 and 2000-2002 batches to take

the examination in December 2002.

3. The students admitted by the Institute to the two-

year JBT Course in the year 1999 filed CWP Nos.819 of 2003,

1178, 1188, 1194, 1204 of 2004 and 50 of 2005, before the

High Court praying for a direction to the Board to declare

the first year JBT course results of 1999-2001 batch and a

further direction to the Board to hold the second year

examinations for the students belonging to the 1999-2001

batch. A student admitted by the Institute to the JBT course

in the year 2002 filed CWP No.622 of 2004 seeking a direction

to the Board to conduct the examinations for the students

admitted for the academic session 2002-2004. The High Court,

by its common judgment dated 13.1.2006, rejected the prayers

in the said petitions relating to 1999-2001 and 2002-2004

batches but however a different relief to the students who

had filed the writ Petitions by directing the Society and the

Institute to refund the fee paid by them and also pay each of

them Rs.50,000/- as damages.

4. CWP Nos.170 of 2005 and 1231 of 2005 were filed by

some of the students admitted by the Institute in the year

2003, seeking a direction to the Board to take steps to grant

affiliation to the Institute and permit the students of 2003-

2005 batch to appear for the examinations. CWP Nos.251 and

252 of 2005 were filed by the Society/Institute seeking a

direction to the Board to grant an affiliation for the

academic sessions 2004-2006 and 2005-2007 and a direction to

the Government to sponsor students for admission for the said

2004-2006 and 2005-2007 academic sessions. These four writ

petitions were disposed of by another common judgment dated

12.7.2007. CWP Nos.251 and 252 of 2005 filed by the

Society/Institute were dismissed. CWP Nos.170 and 1231 of

2005 filed by the students of 2003-2005 batch were disposed

of by directing the Society and the Institute to refund the

fees received from those students and pay Rs.50,000/- as

damages to each of them.

5. CA Nos.1227/2011 is filed by the Society/Institute

against the judgment dated 13.1.2006 in CWP No.622/2004

relating to 2002-2004 batch. CA No.1228/2011 is filed by the

society/Institute and CA No.1229/2011 is filed by the

students admitted in 1999, against the judgment dated

13.1.2006 in CWP No.819/2003, 1178, 1188, 1194, 1204 of 2004

and 50/2005, relating to the 1999-2001 batch. CA Nos.1230-

1231/2011 are filed by the Society/Institute against the

judgment dated 12.7.2007 in CWP No.170/2005 and 1231/2005

relating to 2003-2005 batch. CA Nos. 1232-1233/2011 are filed

by the society/Institute against the judgment dated 12.7.2007

in CWP Nos.251 and 252 of 2005 relating to academic sessions

2004-2006 and 2005-2007.

CA Nos.1228 & 1229 of 2011 (Admissions made in 1999)

6. The Institute admitted 160 students to the two-year

JBT course, in the year 1999. The state government by letter

dated 17.10.2002 addressed to the Board, communicated its

decision to grant one-time relaxation in respect of admission

of students made by the Institute for the academic session

1999-2001 and directed the Board to conduct the examination

for them. In pursuance of such one-time relaxation by the

State Government, the Board considered the eligibility of the

160 students admitted for the 1999-2001 academic session and

found 68 students to be eligible and permitted them to take

examination and announced their results. The Board found that

the remaining 92 students were ineligible (either because

they had not passed the matriculation examination in second

division or did not fall within the prescribed age limit).

The Board however permitted those 92 candidates also to take

the first year examination, but their results were not

announced nor were they permitted to take the second year

examination. Learned counsel appearing for the students

contended that there was some confusion in regard to the

eligibility criteria/norms adopted by the state government

and the Board, and benefit of the doubt/confusion should be

extended to the students who did not possess the required

second division in the matriculation or were beyond the age

limits prescribed. They therefore sought a direction to the

Board to declare the first year results and conduct the

second year examination, for the 1999-2001 batch students.

7. It is well settled that admission to a course can be

given only to those candidates who are eligible as per the

regulations of the Examining Body and the State Government.

Therefore, unless the students fulfilled the eligibility

requirements stipulated by the Board which is the affiliating

and examining authority, their admissions will be invalid and

they cannot be permitted to take the examination. As the

Board found that 92 students did not fulfil the eligibility

requirements, it rightly rejected their admission to the

course. But more important than the non-fulfilment of the

eligibility requirements of the Board, is the absence of NCTE

recognition in the year 1999. As noticed above recognition

was granted by NCTE to the Institute only on 17.7.2000, from

the academic session 2000-2002. The question therefore is

whether the admissions made in 1999, before recognition by

NCTE, are valid.

8. The Society/Institute submitted that they applied to

NCTE on 11.4.1997, seeking recognition; that NCTE responded

by stating that it will consider the request for recognition,

on the Institute obtaining an NOC from the State Government;

that the State Government gave its NOC on 20.9.1999; and that

therefore, they proceeded bona fide under the impression that

the Institute could make the admissions from 1999 onwards.

The Society/Institute therefore submitted that the admissions

made in the year 1999 should be deemed to have been

regularized, when the Institute was recognized on 17.7.2000.

9. Section 14 of the National Council for Teacher

Education Act, 1993 ('NCTE Act' for short) relates to

recognition of institutions offering course or training in

teacher education. Sub-section (1) thereof provides that

every institution offering or intending to offer a course or

training in teacher education on or after the appointed day,

may, for grant of recognition under the Act, make an

application to the Regional Committee concerned in such form

and in such manner as may be determined by regulations. NCTE

Act came into force on 1.7.1995 and the appointed day under

the said Act is stated to be 17.8.1995. A combined reading of

sections 14(1) and (5), 15, 16, and 17(3) and (4) of NCTE Act

make it clear that after the appointed day, no institution

can commence or offer a course or training in teacher

education without recognition by the NCTE and consequently,

no student could be admitted to such course or training nor

could be permitted to appear in any examination relating to

such course or training. The Society established and started

the Institute after the appointed day. The Society applied to

NCTE for recognition on 11.4.1997. NCTE required the Society

to obtain and furnish an NOC from the Government of Himachal

Pradesh. The said NOC was granted on 20.9.1999. In pursuance

of it, NCTE granted recognition to the Institute on

17.7.2000. The order of NCTE made it clear that the

recognition was for conducting the Two Years JBT course

commencing from the academic year 2000-2001 with an annual

intake of 50 students. Having regard to the clear provisions

of the NCTE Act, before NCTE granted recognition on

17.7.2000, the Institute could not offer the JBT course nor

admit any students to such course. Therefore, the admissions

made by the Institute in the year 1999 for the academic

session 1999-2001 are illegal and irregular and could not be

approved, recognised or regularised.

10. The students pointed out that the State Government

and the Board have accepted and regularized the admissions of

68 students of 1999-2001 batch and therefore they should not

be denied similar benefit. The fact that the State Government

and the Board chose to ignore the absence of NCTE recognition

and permitted the students admitted in 1999 to take the

examination or announced the results of 68 students who were

eligible as per the criteria prescribed by the State/Board,

cannot be a ground for us to ignore the mandatory statutory

requirements of NCTE Act and perpetuate an illegality by

requiring the Board to conduct the examinations for the

remaining 92 students admitted in the year 1999 or declare

their results. In State of Tamil Nadu vs. St. Joseph Teachers

Training Institute - (1991) 3 SCC 87, this Court disapproved

the grant of any direction to permit the students of an

unrecognized teachers training institute to take the

examination, even in pre-NCTE era. This Court observed :

"There is no dispute that the respondent educational institutions were established for imparting education in Teachers Training Course without obtaining recognition from the Education Department of the State Government. In the absence of recognition from the Education Department, the students pursuing their studies in these institutions could not appear at the public examination held by the Education Department. The Full Bench rightly held that students of unrecognized educational institutions could not be permitted to appear at the public examination held by the government. On its own findings, the Full Bench should have refused relief to the petitioners, but it was persuaded to issue directions on humanitarian grounds which were in effect destructive of its own findings, and the law laid down by it. The Full Bench issued directions permitting the students to appear at the examination and directing the appellant authorities to make a special provision for supplementary examination. These directions in our opinion were unauthorized and wholly unjustified. ......... .....Courts cannot grant relief to a party on humanitarian grounds contrary to law. Since the students of unrecognized institutions were legally not entitled to appear at the examination held by the Education Department of the government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination."

11. The practice of admitting students by unrecognized

institutions and then seeking permission for the students to

appear for the examinations have been repeatedly disapproved

by this Court [See : N. M. Nageshwaramma vs. State of AP -

(1986) Supp. SCC 166, A.P. Christian Medical Education

Society vs. Government of AP - (1986) 2 SCC 667, and State

of Maharashtra vs. Vikas Sahelrao Roundale - (1992) 4 SCC

435]. We, therefore, find no reason to interfere with the

decision of the High Court rejecting the prayer of the

students admitted in 1999 to regularize their admissions by

directing the Board to permit them to appear for the JBT

examination conducted by it. The two appeals (CA Nos.1228

and 1229 of 2011) filed by the Society/Institute and the

students in regard to the 1999 admissions are therefore

liable to be dismissed.

CA Nos.1227 and 1230-1231 of 2011 (Admissions made in 2002

and 2003)

12. When the Institute made admissions to JBT course in

the years 2002 and 2003 (for 2002-2004 and 2003-2005 academic

sessions), the Institute had the recognition from NCTE vide

order dated 17.7.2000. The admissions made by the Institute

were within the permitted intake. The students admitted

during 2002 and 2003 have completed the course. The students

were also permitted by the Board to take the examination and

only their results remain to be declared.

13. After securing recognition from NCTE on 17.7.2000,

the Institute applied to the Board for affiliation for the

academic session 2000-2002. The Board informed the Institute,

by letter dated 31.8.2001 that it did not have jurisdiction

to grant affiliation to JBT training institutions. However,

by subsequent order dated 31.12.2001, the Board granted

affiliation for the two year JBT course for the year 2001-

2002 only, with a condition that the institution shall have

to seek fresh affiliation for the second year of the course.

The State Government by letters dated 20.1.2004 and 8.3.2004

rejected the request of the Society to regularize the

admissions of the 2002-2004 batch and conduct examination for

them, on the ground that the Institute had made admissions by

ignoring the admission procedures prescribed by the State

Government. By letter dated 30.10.2004, the State Government

instructed the Board not to grant affiliation to the

Institute because of frequent irregularities in admissions.

The High Court refused relief to the students admitted to

2002-2004 and 2003-2005 sessions on the ground that the

admission of students by the Institute without affiliation to

the Examining Body, was illegal and invalid.

14. Learned counsel for the Institute submitted that

having regard to the provisions of section 14(6) of the NCTE

Act, the examining body is bound to grant affiliation to an

institution in regard to which recognition has been granted

by NCTE. He submitted that where an institution is granted

recognition by NCTE, the affiliation with the examining body

should automatically follow and in view of such deemed

affiliation, the Examining Body had no discretion to deny

affiliation. He submitted that when NCTE granted recognition

on 17.7.2000, the institute bona fide proceeded on the

assumption that the affiliation with the Examining Body was

automatic and therefore it had proceeded to make admissions

without awaiting any specific order of affiliation.

15. The purpose of `recognition' and `affiliation' are

different. In the context of NCTE Act, `affiliation' enables

and permits an institution to send its students to

participate in the public examinations conducted by the

Examining Body and secure the qualification in the nature of

degrees, diplomas, certificates. On the other hand,

`recognition' is the licence to the institution to offer a

course or training in teacher education. Prior to NCTE Act,

in the absence of an apex body to plan and co-ordinate

development of teacher education system, respective

regulation and proper maintenance of the norms and standards

in the teacher education system, including grant of

`recognition' were largely exercised by the State Government

and Universities/Boards. After the enactment of NCTE Act, the

functions of NCTE as `recognising authority' and the

Examining Bodies as `affiliating authorities' became

crystallized, though their functions overlap on several

issues. NCTE Act recognizes the role of examining bodies in

their sphere of activity.

16. Section 14 of the NCTE Act requires recognition of

the institution by the NCTE, before the institute could offer

any course or training in teacher education. Sub-section (4)

of Section 14 provides that every order granting or refusing

recognition to an Institution for a course or training in

teacher education under sub-section (3) shall be published in

the Official Gazette and communicated in writing for

appropriate action to such institution and to the concerned

examining body, the local authority or the State Government

and the Central Government. Sub-section (6) of section 14

requires every Examining Body on receipt of the order under

sub-section (4), grant affiliation to the institution, where

recognition has been granted; or cancel the affiliation of

the institution, where recognition has been refused. Section

16 of NCTE Act provides that notwithstanding anything

contained in any other law for the time being in force, no

examining body shall grant affiliation whether provisional or

otherwise, to any institution, or hold examination for a

course or training conducted by a recognized institution,

unless the institution concerned has obtained recognition

from the Regional Committee of NCTE under section 14 or

permission for a course or training under section 15 of the

Act.

17. Sub-section (6) of section 14 no doubt mandates every

examining body to grant affiliation to the institution on

receipt of the order of NCTE granting recognition to such

institution. This only means that recognition is a condition

precedent for affiliation and that the examining body does

not have any discretion to refuse affiliation with reference

to any of the factors which have been considered by the NCTE

while granting recognition. For example, NCTE is required to

satisfy itself about the adequate financial resources,

accommodation, library, qualified staff, and laboratory

required for proper functioning of an institution for a

course or training in teacher education. Therefore, when

recognition is granted by NCTE, it is implied that NCTE has

satisfied itself on those aspects. Consequently, the

examining body may not refuse affiliation on the ground that

the institution does not have adequate financial resources,

accommodation, library, qualified staff, or laboratory

required for proper functioning of the institution. But this

does not mean that the examining body cannot require

compliance with its own requirements in regard to eligibility

of candidates for admissions to courses or manner of

admission of students or other areas falling within the

sphere of the State government and/or the examining body.

Even the order of recognition dated 17.7.2000 issued by NCTE

specifically contemplates the need for the institution to

comply with and fulfil the requirement of the affiliating

body and state government, in addition to the conditions of

NCTE. We extract below conditions 4, 5 & 6 of the order of

recognition issued by NCTE in this behalf :

"4. The admission to the approved course shall be given only to those candidates who are eligible as per the regulations governing the course and in the manner laid down by the affiliating University/State Government.

5. Tuition fee and other fees will be charged from the students as per the norms of the affiliating University/State Government till such time NCTE regulations in respect of fee structure come into force.

6. Curriculum transaction, including practical work/activities, should be organized as per the NCTE norms and standards for the course and the requirements of the affiliating University/Examining body."

The examining body can therefore impose its own requirements

in regard to eligibility of students for admission to a

course in addition to those prescribed by NCTE. The state

government and the examining body may also regulate the

manner of admissions. As a consequence, if there is any

irregularity in admissions or violation of the eligibility

criteria prescribed by the examining body or any irregularity

with reference to any of the matters regulated and governed

by the examining body, the examining body may cancel the

affiliation irrespective of the fact that the institution

continues to enjoy the recognition of the NCTE.

Sub-section (6) of section 14 cannot be interpreted in a

manner so as to make the process of affiliation, an automatic

rubber-stamping consequent upon recognition, without any kind

of discretion in the examining body to examine whether the

institution deserves affiliation or not, independent of the

recognition. An institution requires the recognition of NCTE

as well as affiliation with the examining body, before it can

offer a course or training in teacher education or admit

students to such course or training. Be that as it may.

18. Certain facts peculiar to this case requires to be

noticed. The Institute apparently proceeded under the

mistaken impression that the recognition by NCTE on

17.7.2000, which was granted after the State Government

issued a NOC, resulted in automatic affiliation with the

examining body. The Board had granted affiliation to the

Institute for an earlier period and has also granted

affiliations for the subsequent period. The students admitted

in 2002 and 2003 have already completed the course and have

also been permitted by the Board which is the examining and

affiliating authority to appear for the examinations. In the

peculiar circumstances, to do complete justice, we are of the

view that the admissions of students to the Institute in the

years 2002 and 2003 should be regularized subject to

fulfilling the eligibility criteria prescribed by the Board

and their results should be declared. To this limited extent,

the appeals relating to 2002 and 2003 admissions succeed. CA

No.1227/2011 and 1230-1231/2011 are disposed of accordingly.

19. The High Court has directed that the Society and

Institute having violated the statutory provisions and norms,

should refund the fees taken from all students who were writ

petitioners and also pay to each of them Rs.50,000/- as

damages. The said direction of the High Court to pay damages

of Rs.50,000/- to each student, is set aside insofar as

students admitted in the years 2002 and 2003.

Civil Appeal Nos. 1232-1233/2011 (re : 2004-2006 and 2005-

2007)

20. These appeals arise from the dismissal of the writ

petitions (WP No.251-252/2005) filed by the society and the

institute for the following reliefs: (a) for grant of

affiliation to the Institute for 2004-2006 and 2005-2007; (b)

for quashing the Notifications dated 20.6.2002 and 25.6.2002;

and (c) for a direction to the State Government and the Board

to sponsor students for the academic sessions 2004-2006 and

2005-2007.

21. Admittedly no candidates were allotted by the state

government to the Institute, nor did the Institute

independently admit any candidate for the academic sessions

2004-2006 and 2005-2007. As we are in the year 2011, the

prayer seeking a direction to the Board to allot candidates

for 2004-2006 and 2005-2007 does not survive. In view of

grant of affiliation to the Institute in the year 2009 and in

the absence of any students being admitted for the academic

sessions 2004-2006 and 2005-2007, the question of granting

affiliation for those years is academic and does not arise

for consideration.

22. The Notifications dated 20.6.2002 and 26.5.2002

related to constitution of a committee to examine whether the

Institute had committed any irregularities in making

admissions in the past before the recognition by NCTE. There

was nothing erroneous in constitution of such a committee. At

all events, after recognition by NCTE and affiliation with

the Board in 2009, this issue is academic. Consequently, CA

Nos.1232-1233/2011 are liable to be dismissed as having

become infructuous.

Conclusion:

23. We accordingly dispose of the appeals as follows :

(i) CA No.1228/2011 and 1229/2011 are dismissed

(ii) CA No.1227/2011 and 1230-1231/2011 are disposed of in

terms of paras 18 and 19 above.

(iii)CA Nos.1232-1233/2001 are dismissed as having become

infructuous.

(iv) As the students admitted in 1999 have been prosecuting

the litigation from 2003, we direct that if these

students seek fresh admission to the Institute in 2011,

they shall be permitted to join the course, if they meet

the eligibility criteria, by relaxing only the age

requirement. As they have paid the fees for the course

in 1999-2001, they shall not be charged any further fee

by the Institute.

....................J. ( R.V. RAVEENDRAN )

....................J. New Delhi; ( A.K. PATNAIK ) February 02, 2011.