Chairman Bhartia Education Soc. & Anr vs State Of H.P. & Ors on 2 February 2011

Supreme Court of India
Chairman, Bhartia Education Soc. & Anr vs State Of H.P. & Ors on 2 February, 2011
Equivalent citations: 2011 AIR SCW 1816, 2011 (4) SCC 527, 2011 (3) AIR JHAR R 770, AIR 2011 SC (CIVIL) 789, (2011) 4 ESC 546, (2011) 3 MAD LW 193, (2011) 2 SCT 739, (2011) 2 PAT LJR 94, (2011) 7 MAD LJ 324, (2011) 3 SCALE 48, 2011 (3) KCCR SN 220 (SC), 2011 (9) ADJ 22 NOC, (2011) 5 BOM CR 241
Bench: A.K. Patnaik, R.V. Raveendran
Reportable
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1227 OF 2011
[Arising out of SLP(C) No.4725/2006]

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.