Ranjana Mishra & Anr vs State Of Bihar & Ors

Kumari Ranjana Mishra & Anr. ...... Appellants

Versus

The State of Bihar & Ors. ...... Respondents

J U D G M E N T

A. K. PATNAIK, J.

Leave granted.

2. This is an appeal against the order dated 23.05.2008

of the Division Bench of the High Court of Patna in Letters

Patent Appeal No.972 of 2007.

3. The facts very briefly are that the Government of Bihar

in the Department of Human Resource Development

granted temporary recognition to the Champaran Physical

Training College (for short `the College') for C.P.Ed.

(Certificate of Physical Education) and D.P. Ed. (Diploma in

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Physical Education) courses from July, 1986 alongwith

permission to the students of the College to appear in the

examinations subject to certain conditions stipulated in the

order dated 09.08.1988. The two appellants took admission

in the C.P.Ed. course in the College in the academic session

1989-1990. Several other students also took admission in

the C.P.Ed. course in the College in different academic years

1989-1990 to 1995-1996. With effect from 01.07.1995, the

National Council for Teacher Education Act, 1993 (for short

`the NCTE Act') came into force and under Section 14 of the

NCTE Act, the power to grant recognition was vested in the

Regional Committee of the National Council for Teacher

Education (NCTE) with effect from 17.08.1995. On

13.04.2004, the State revoked the recognition of the College

and all other Non-Government Physical Training Colleges in

the State. The two appellants and five other candidates,

who had undergone the C.P.Ed. course in the College during

the academic years 1989-1990 to 1995-1996, moved the

High Court under Article 226 of the Constitution in

C.W.J.C. No. 11413 of 2007 for a direction to the Bihar

School Examination Board to release the form and accept

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the fees and forms of the appellants and the five other

candidates on the basis of the training courses completed in

the academic sessions 1989-1990 to 1995-1996 from the

College and to allow them to appear in the examination to

be conducted in 2007. By order dated 07.11.2007, a

learned Single Judge of the High Court dismissed the Writ

Petition. The two appellants and the five other candidates

then filed Letters Patent Appeal No. 972 of 2007 before the

Division Bench of the High Court. By the impugned order

dated 23.05.2008, the Division Bench of the High Court

dismissed the Letters Patent Appeal. Aggrieved, the

appellants have filed this appeal.

4. Mr. Sunil Kumar, learned senior counsel appearing for

the appellants, submitted that before the Division Bench of

the High Court, the appellants contended that the College

was recognized by the State Government during the years

1989-1990 to 1995-1996 when the appellants and five other

candidates undertook the C.P.Ed. course and that the

Regional Committee of NCTE was vested with the power to

grant recognition only after the NCTE Act came into force on

01.07.1995 and, therefore, the Bihar School Examination

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Board should be directed to allow the appellants to take the

C.P.Ed. examination. He submitted that before the High

Court the appellants relied on the decision in Sunil Kumar

Parimal & Anr. v. State of Bihar & Ors. [(2007) 10 SCC 150]

in which this Court has held that the Tirhut Physical

Education College, Muzaffarpur, was duly recognized by the

State Government and lost its recognition only with effect

from the date the NCTE Act came into force, and hence the

candidates, who had undertaken the course in the aforesaid

College recognized by the State Government before the

NCTE Act came into force, were eligible to appear in the

examination of C.P.Ed. course. He submitted that the High

Court did not accept the contention of the appellants and

instead held that Tirhut Physical Education College,

Muzaffarpur, was a recognized institution and despite

repeated requests of the State to allow the students to

appear in the examination, the Bihar School Examination

Board did not follow the request of the State Government,

but in the facts of the present case no such request had

been made by the State Government and no direction was

issued by the State Government to the Bihar School

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Examination Board to allow the students of the College to

take the C.P. Ed. examination. He submitted that the High

Court further held that the order passed by this Court in

Sunil Kumar Parimal's case was in exercise of this Court's

jurisdiction under Article 142 of the Constitution to do

complete justice between the parties and the High Court

had no such power to do complete justice under Article 226

of the Constitution. Mr. Sunil Kumar further submitted

that the High Court also held that after the NCTE Act had

come into force the College had also not applied for

recognition and in fact the recognition of the College had

been cancelled in the year 2004 and that it was only after

the College was derecognized that the appellants sought to

appear in the examination to be conducted by the Bihar

School Examination Board in the year 2007, to which the

appellants were not entitled. He argued that the case of the

appellants is squarely covered by the decision of this Court

in Sunil Kumar Parimal's case (supra) and this Court should

direct the Bihar School Examination Board to allow the

appellants to take the C.P.Ed. examination. Learned

counsel for the respondents nos. 8 and 9, namely, the

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Secretary and the Principal of the College, adopted the

aforesaid arguments of Mr. Sunil Kumar.

5. In reply, Mr. Gopal Singh, learned counsel appearing

for respondent Nos. 1 to 5, namely, the State of Bihar and

the Bihar School Examination Board and their officers,

submitted that the Bihar School Examination Board has

conducted examinations on several occasions during the

years 1989-90 onwards, but the appellants did not make

any request to sit in the examination in all the years till

2007 and it is only after the State Government started

recruitment of teachers in large numbers and appointed

Panchayat Teachers that the appellants were anxious to

take a chance in the examination. He further submitted

that the recognition of the College in which the appellants

had studied was in fact withdrawn by the State Government

in 2004, and after the NCTE Act came into force, the College

had not been granted recognition by the Regional

Committee of the NCTE. He submitted that Section 16 of

the NCTE Act is very clear that no examining body shall

hold examination for a course or training conducted by a

recognized institution unless the institution concerned has

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obtained recognition from the Regional Committee of the

NCTE under Section 14 or permission for a course or

training under Section 15 of the NCTE Act. He argued that

since the College had not obtained recognition of the

Regional Committee of the NCTE under Section 14 or

permission for the course or training under Section 15 of

the NCTE Act, the Bihar School Examination Board was

clearly prohibited under Section 16 of the NCTE Act from

holding the examination for the appellants. Mr. Gopal

Singh submitted that considering the judicial

pronouncements in L. Muthukumar & Anr. v. State of T. N. &

Ors. [(2000) 7 SCC 618], St. John's Teachers Training

Institute (for Women), Madurai & Ors. v. State of Tamil Nadu

& Ors. [(1993) 3 SCC 595], State of Maharashtra v. Vikas

Sahebrao Roundale & Ors. [(1992) 4 SCC 435] and N. M.

Nageshwaramma, etc. v. State of Andhra Pradesh & Anr.,

etc. [1986 (Supp.) SCC 166] the appellants are not entitled

to take the examination after derecognition of the College.

He also cited a recent decision of this Court in Bhagwan

Budha Prathmik Technical Training College Nirmali v. The

State of Bihar & Ors. [2010 (12) SCALE 364] in which it has

8

been held that after the NCTE Act came into force in July,

1995 the State Government had no authority to issue the

order dated 16.03.2007 granting recognition to an

institution for the period 1987-1995.

6. We have considered the submissions of the learned

counsel for the parties and we find from the record of this

case that the College was established after permission was

granted by the State Government to open the College and

the College started C.P.Ed. and D.P. Ed. courses from July

1986. Thereafter, a spot inspection of the College was

carried out pursuant to the orders of the State Government

in the Department of Youth Affairs, Games and Culture, and

the Inspection Committee comprising the Director-cum-

Deputy Secretary, Student and Youth Welfare, Deputy

Director, Youth Welfare-Bihar and Principal, Government-

cum-Teaching College, Patna, submitted a report dated

04.12.1987 stating that the College had a building over 10

acres 30 decimals of land, seven Lecturers, two Instructors,

one Library and other non-teaching staff and all the

Teachers were eligible and experienced and that the College

was running properly. On the basis of the said report dated

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04.12.1987, the Government of Bihar in the Department of

Human Resource Development by order dated 09.08.1988

granted temporary recognition to the College from July 1986

for the C.P.Ed. and D.P.Ed. courses till further orders "along

with permission to the students to appear in the

examination".

7. Rule 7 of the Bihar School Examination Board Rules,

1963 which has been referred to in paragraph 6 of the reply

of the Bihar School Examination Board reads as follows:

"7. Departmental Examinations to be

conducted by the Board: (1) The Board shall

on, such terms and conditions as may be laid

down by the State Government, conduct the

following departmental Examinations, namely:--

(a) Certificate in Social Education;

(b) Diploma in Physical Education;

(c) Certificate in Physical Education;

(d) Short Training Course in Physical

Education;

(e) Primary Training Course in Physical

Education; and

(f) Training School Examinations:

Provided that the State Government may, by

notification in the official gazette, authorize the

Board to conduct such other departmental

examinations not specified or withdraw the

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authority given to the Board to conduct any of

the examinations mentioned, in this sub-rule.

(2) The State Government may give

instructions to the Board about the content as

well as the academic and vocational standards of

these examinations, and may modify these

instructions, as and when necessary."

The word "shall" in sub-rule (1) of the Rule 7 indicates that

a duty is cast duty on the Bihar School Examination Board

to conduct the Certificate in Physical Education (C.P.Ed.)

examinations on such terms and conditions as may be laid

down by the State Government. In the order dated

09.08.1988 of the State Government granting recognition to

the College, there were ten conditions and condition no.6

was to the following effect:-

"Students will be compulsorily required to

perform successfully as per the standard of one

star, in the test conducted by Government

Health and Physical Training College,

Rajendranagar, Patna, before appearing in the

examination conducted by the Bihar School

Examination Board."

It is thus clear from the terms and conditions of the order

dated 09.08.1988 of the State Government granting

recognition that the students of the College were to appear

in the C.P.Ed. and D.P.Ed. examinations conducted by the

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Bihar School Examination Board. Hence, the Bihar School

Examination Board was under a duty to hold the C.P.Ed.

and D.P.Ed. examinations for the students of the college

and this duty could be enforced by the Court by an

appropriate writ or direction by the High Court under Article

226 of the Constitution. The High Court was not right in

taking the view in the impugned order that without a

direction of the State Government to the Bihar School

Examination Board to allow the appellants to take the

examinations, no relief could be granted by the High Court

to the appellants.

8. The High Court was also not right in distinguishing the

present case from the case of Sunil Kumar Parimal (supra).

In the case of Sunil Kumar Parimal (supra), this Court had

found that the Tirhut Physical Education College,

Muzaffarpur, had been granted permission to enroll the

students in C.P.Ed. and D.P. Ed. courses for the Sessions

1994-1995 to 1995-1996 and was duly recognized by the

State Government and this Court held that the NCTE Act

will be applicable prospectively to those students who have

to undertake the examination after the Act came into force.

12 This Court having found that the aforesaid College was

recognized by the State Government prior to the date when

the NCTE Act came into force and the NCTE came into

existence, directed that the students of the College would be

permitted to appear in the examination for the courses of

C.P.Ed and D.P. Ed. for the Sessions 1994-1995 and 1995-

1996 to be conducted by the Bihar School Examination

Board on the next available opportunity. In our considered

view, the decision of this Court in Sunil Kumar Parimal

(supra) squarely applies to the facts of this case also as the

College was duly recognized by the State Government

during the year 1989-1990 when the appellants were

admitted to the C.P.Ed. course and when the NCTE Act had

neither been enacted nor come into force.

9. The decision of this Court in Bhagwan Budha

Prathmik Technical Training College Nirmali v. The State of

Bihar & Ors. (supra), cited by learned counsel for

respondent nos.1 to 5, is not applicable to the facts of the

present case. In that case, after the appointed date

(17.08.1995) when the NCTE had been established under

the NCTE Act, the State Government passed an order dated

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16.03.2007 granting recognition to the Teachers' Training

College at Nirmali, District Supaul (Bihar) for 1987-1989

onwards and this Court held that after the appointed date

the State Government cannot exercise the power of

recognition nor can the examining body hold examination of

the students of a teacher training institute unless the

institution was recognized by the Regional Committee of the

NCTE as laid down in Section 16 of the NCTE Act. In the

facts of the present case, on the other hand, we find that the

order of the State Government granting recognition to the

College in which the appellants studied in the year 1989-

1990 was issued on 09.08.1988, several years before the

NCTE Act came into force.

10. In L. Muthukumar & Anr. v. State of T. N. & Ors. (supra)

on which great reliance has been placed by learned counsel

for the respondent nos. 1 to 5, some students had filed writ

petitions contending that they had undergone secondary

grade teachers' training in different training institutes

between the period 1989 to 1991 and that they had taken

public examination in May 1992, but their results were not

published and certificates were not awarded. The Court

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found that the institutes, in which they had undergone

training, had recognition but the same was withdrawn

subsequently by virtue of the judgment in P.M. Joseph v.

State of T. N. (1993 Writ LR 604) holding that the orders of

recognition had been granted only on extraneous

considerations. On these facts, this Court held that as the

students had undergone the training in the institutes which

were derecognized by virtue of the judgment in P. M.

Joseph's case, the prayers of the students for writ of

mandamus for issuing of mark-sheets and/or

diplomas/certificates contrary to the judgment in P.M.

Joseph's case could not be granted by the High Court. In

the facts of the present case, however, the recognition to the

College that was granted by the State Government for the

years 1989-1990 during which the appellants were admitted

in the course had not been withdrawn on the ground that

the recognition was granted for extraneous considerations.

On the contrary, we find from the record of this case that

until 13.04.2004 the recognition of the College had not been

revoked by the State Government and on 13.04.2004 the

recognition of all non-Government Physical Training

15

Colleges including that of the College in the present case

were revoked presumably because the State Government no

longer had the power to grant recognition and the non-

Government Physical Training Colleges in the State were

required to obtain recognition from the Regional Committee

of the NCTE under the NCTE Act.

11. We have also perused the decisions of this Court in St.

John's Teachers Training Institute (for Women), Madurai &

Ors. v. State of Tamil Nadu & Ors. (supra), State of

Maharashtra v. Vikas Sahebrao Roundale & Ors. (supra) and

N. M. Nageshwaramma, etc. v. State of Andhra Pradesh &

Anr., etc. (supra) cited by learned counsel for respondent

nos.1 to 5 and we find that in these decisions this Court has

held that the students studying in the unrecognized

institutions are not entitled to any relief, interim or final,

from the Court for taking examinations. The main reason

given by this Court for refusing such relief is that standards

of education, sports, administration and maintenance of the

Teachers Training Institutes should not be compromised by

granting such reliefs. These decisions have no relevance to

the facts in the present case in which we find that after

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inspection of the College the Inspection Committee had

submitted a report stating that the College had the required

facilities and the teaching and other staff and on the basis

of such report the State Government had, in fact, granted

temporary recognition to the College by order dated

09.08.1988 and the appellants were admitted in the College

during the year 1989-1990 when the recognition granted by

the State was in force.

12. In the result, we allow this appeal, set aside the

impugned order of the High Court and direct the Bihar

School Examination Board to conduct the C.P.Ed.

examination for the appellants as soon as possible. No

costs.

..........................J.

(R.V. Raveendran)

..........................J.

(A. K. Patnaik)

New Delhi,

March 10, 2011.