(Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR) 1. By way of this Letters Patent Appeal, the appellant, which is an educational institution, has challenged the order of the learned Single Judge dated 11.05.2012 rendered in Special Civil Application No.6049 of 2012, by which the learned Single Judge partly allowed the petition filed by the appellant and set aside the order of the appellate authority and the matter is send back to Respondent No.2, National Council For Teachers Education(for short 'NCTE')to take a fresh decision in appeal of the appellant. The learned Single Judge has also observed that Respondent-2, appellate Authority, may fix the date of hearing and the Original authority i.e. Respondent No.1 was asked to schedule hearing within four days from the service of the order. Respondent No.1 was directed to pass a fresh order within three days from the said date. It was also directed that, in case, the decision of the appellate authority is in favour of the appellant, the University shall take necessary action to grant affiliation to the appellant and allot students for admission therein, within one week from receipt of the said order.
2. Present appeal is field by the appellant on the limited point to the extent that the learned Single Judge has not continued the interim relief, which was granted in the petition and has modified the same to the aforesaid extent, as indicated above. It is the grievance of the appellant that the learned Single Judge should have continued the interim arrangement which was prevailing, by directing the University to straightaway allot the students to the appellant institution without awaiting the decision of the appellate authority in this behalf.
3. The Western Regional Committee(for short 'WRC') of the NCTE gave recognition to the appellant institution under Section-14(3)(g) of the NCTE Act, 1993, on 25.08.2006. Said order is produced at Page-38 of the compilation. The recognition to the appellant's institution was granted with effect from Academic Year 2006-2007. Said recognition was subject to certain conditions attached with the said order. Subsequently, as per the direction of the NCTE, New Delhi, inspection of the various educational institutions was carried out and the institute of the appellant was also inspected. Thereafter, a show cause notice was issued, whereby five deficiencies were pointed out to the appellant, herein. The appellant gave reply to the same. Thereafter, by an order dated 29.11.2008, the recognition given to the appellant's institution regarding its college viz. Arpit College of Education, was withdrawn for Academic Year 2009- 2010. As per the grounds stated in the said show-cause notice, various proceedings were taken out by the appellant from time to time in this behalf. Since, a group of various institutions approached this Court, regarding such withdrawal of recognition, the Division Bench of this Court (Coram : Hon'ble the Chief Justice S.J. Mukhopadhaya, as his Lordship then was and Akil Kureshi, J.), by a common judgment, dated 14.05.2010, disposed of the group of petitions, including that of the present appellant's being Special Civil Application No.4576 of 2009. The division Bench of this Court, while disposing of the said group of petitions, gave certain directions, and thereby permitted the concerned institutions to cure the defects. The relevant observations of the Division Bench in this connection are as under:
“29. Under the circumstances, these petitions as well as Civil Applications are disposed of with following directions :
i) All the petitioners shall remove all the defects and confirm to all the norms of NCTE as applicable to the concerned institution as interpreted and explained here-in-above for which the petitioners shall have time upto 31.12.2010.
ii) Institutions after curing all the defects not later than by 7.1.2011, shall intimate to the NCTE that defects have been cured and invite the inspection team to carry out inspection.
For the above purpose, the concerned institution shall along with its communication to NCTE attach a draft of Rs. 10,000/- in favor of NCTE for one time cost of such inspection If any institution fails to send such a communication within the time permitted, its recognition shall automatically stand withdrawn without requirement of passing any order. Though students already admitted shall not be affected by such withdrawal, the institution will not be permitted to admit any students in the next academic year.
iii) Upon receipt of such a communication, NCTE shall depute a team of qualified persons to visit the institutions, verify the infrastructure and other facilities available as also inspect the documents with respect to such facilities.
iv) Upon inspection, if NCTE finds that all defects are cured, certificate to that effect shall be given to the concerned institution and its recognition shall be continued.
v) If upon inspection however, NCTE finds any of the defects still remaining, it will be open for NCTE to pass appropriate orders in accordance with law after issuing show cause notice to the concerned institution/trust.
vi) In view of above directions, all the orders cancelling recognition of the institutions are set aside. It is clarified that quashing of orders passed by the NCTE is not on merits, but only to enable the institutions to fulfill all the requirements within the extended time.”
4. It seems that the appellant had not approached the competent authority within the stipulated time for the purpose of pointing out, whether the defects were removed or not, as according to the appellant institution, it had already constructed a new building in which, according to him, there were no defects and in the meanwhile, he had also requested the authority to inspect the new building. According to respondent No.1, the appellant did not cure the defects, therefore, again fresh show-cause notice was issued on 22.06.2011, which is produced at Page-92 of the compilation, wherein seven defects were pointed out. The appellant gave reply to the same on 20.07.2011. In his reply also, the appellant made a grievance that even though new building was constructed, the show-cause notice was sent to the old address and that the Inspecting Team did not visit the new building and that, earlier, an application was already made for shifting the location, but, that application was not adjudicated in any manner. In reply to the show-cause notice, it was further stated that new college is running very well. The aforesaid aspect is highlighted by the appellant in his reply to the show-cause notice and the reference of the new building is at Page-94. Subsequently, by an order dated 28.09.2011, the recognition of the appellant institution was withdrawn by the NCTE in exercise of powers under Section-17(1)of the NCTE Act. It is mentioned in the said order that the recognition is withdrawn from the end of the academic session. It is pointed out to the Court that the academic session comes to an end in the month of April/May. Hence, as per the said order, recognition stands withdrawn with effect from April, 2012. This provisions seems to have been made, obviously, with a view to see that the students who were already admitted may not suffer if the recognition is withdrawn halfway, therefore, such order comes into effect at the end of the academic session. Said order was challenged by the appellant before the appellate authority. It is required to be noted, however, that before the order of withdrawal of the recognition was passed, the appellant filed another petition being Special Civil Application No.6505 of 2011 on the ground that NCTE has not passed any final order, as directed by the Court earlier. On 14.06.2011, the Division Bench passed an interim order to the effect that respondent No.3-University to reflect the name of the appellant's institution as eligible for admission and for allotment of the students for the Academic Year-2011-12. Subsequent to this order, the order of withdrawal of recognition was passed, as indicated above. The appellant, thereafter, sought withdrawal of the said writ- petition and the Division Bench permitted the withdrawal thereof vide order dated 09.11.2011. The appellant, subsequently, preferred an appeal before the appellate authority. The appeal of the appellant was dismissed on 15.02.2012, which is produced at Page-30 of the compilation. The said order was challenged by the appellant by way of Special Civil Application No.6049 of 2012. The learned Single Judge, initially, on 30.04.2012, passed the following order:
“1. In pursuance of the order dated 27/04/2012, today, learned Assistant Solicitor General Mr. P.S. Champaneri has submitted that his client i.e. respondent no.1 NCTE is still not served with the petition and he has not received any instruction from NCTE. He requested for some more time so that he can receive proper instruction from NCTE. Learned Senior Counsel Mr.Oza with learned advocate Mr. Jasani for the petitioner has submitted that admission process would commence from tomorrow and if allotment of students is finalized without considering the case of the petitioner, then petitioner will have to suffer loss of one year. Therefore, below mentioned order is passed:
1.1. The hearing of the petition is adjourned to 04/05/2012. In the meanwhile the respondent nos.1 and 3 shall file their reply.
1.2. The petitioner shall forward copy of this order to respondent no.1 through fax at its own cost.
1.3. Learned Assistant Solicitor General is also requested to inform about present order.
1.4. A copy of this order shall be directly and personally served by the petitioner to respondent no.3 university along with copy of undertaking dated 27/03/2012.
1.5. The respondent no.1, in the meantime will tentatively reflect the name of petitioner institution in the list of eligible colleges however, with a rider clarifying by way of separate remark/note that the name is reflected in the list on account of pending writ petition in the High Court and it is subject to the further order that may be passed by the Court.
1.6. Likewise respondent no.3 will, while making allotment of the students, also take into consideration the case of the petitioner college and tentatively allot students as per its normal practice and shall clarify that the allotment is subject to the further orders that may be passed in the petition.
1.7. Further orders shall be passed on 04/05/2012 after taking into account the reply that may be filed by respondent no.1 and respondent no.3 university.”
Subsequently, the said writ-petition has been disposed of by the learned Single Judge, by which the matter has been remanded to Respondent No.2, appellate authority, asking it to take appropriate decision within a time bound programme.
5. The learned Single Judge, while disposing of the said petition, observed that inspection report was given in respect of the old building and since the appellant institution has now constructed a new building, which was never inspected, the matter is sent back to the appellate authority to reconsider this aspect again. Said order was passed by the learned Single Judge, since, as per the say of the appellant, the Inspecting Team, visited only old premises and the new premises was never visited by them. The ad-interim-relief was not continued by the learned Single Judge, instead the learned Single Judge ordered that in case the appeal of the appellant is allowed, the University shall take necessary steps to grant affiliation and students to the appellant institution, within one week from the order passed by the respondent No.2. The aforesaid order is challenged in this appeal by the appellant stating that the learned Single Judge ought to have directed the University to allot the students, since, if, the students are not allotted and if the hearing of the appeal takes time, the appellant institution will not be eligible to get the students when the academic term starts and even if the recognition will be given, the institution will not be able to give admission to the students for the academic year, commencing from June/July, 2012. The appellant has accordingly challenged the direction of the learned Single Judge in the impugned order by which earlier order of allotting students to the appellant institution was not continued by the learned Single Judge. The learned Single Judge, however, in his order observed that as on today, the institution do not have a valid affiliation with the University nor there is recognition. There is no clarity about the qualification of the academic staff etc.. The learned Single Judge has, therefore, observed in Para-25 that, except, remanding the matter no other order could be passed, at this stage.
6. Learned Sr. Counsel, Mr. Oza, has vehemently submitted that the learned Single Judge should not have refused interim relief prayed by the appellant to direct the University to allot the students to the appellant institution, as according to him, even though, the institution's building was ready, the Inspecting Team of NCTE deliberately did not visit the new building and instead the report is given in respect of the old building, which was visited by them. It is submitted by Mr. Oaz that, though, the appellant had already pointed out in its appeal memo that the new building is ready, yet, no steps were taken by the NCTE to visit the new building. It is submitted that even prior to the order of the Division Bench, disposing of the group of petitions, the institution had already shifted to the new premises, and therefore, the inspecting team ought to have visited the new building and not the old premises. It is submitted by him that when the learned Single Judge remanded the matter back to the appellate authority, the learned Single Judge should have continued the earlier ad-interim-relief by which the University was directed to allot students to the appellate institution. Learned Counsel Mr. Oza also argued that, in case, the appellate authority dismisses the appeal of the appellant and confirms the order of withdrawal of recognition, the appellant institution undertakes not to enroll fresh students till it succeeds in further proceedings about getting recognition. Mr. Oza has further argued that in case the students are allowed to be enrolled and if the appeal is dismissed by the appellate authority as per the statutory provisions, those enrolled students can be allowed to complete their term, and therefore, the said order shall come into effect from the next academic term i.e. next year. It is also argued by him that in any case university has no locus standi, but, to grant affiliation, once the NCTE grant recognition to the institution. It is submitted by Mr. Oza that the action of the university is high-handed and arbitrary in as much as once, in the year 2009, affiliation was granted to the appellant institution subject to various conditions and as per the rules, the institution is also entitled to construct a new building within the stipulated time of three years, and hence, there is no reason as to why the new premises should not be inspected by the Inspecting Team. It is also submitted by Mr. Oza that the exercise of powers under Section-17(1) of the NCTE Act, 1993, by the respondent is not called for, once the recognition was given under Section-14(3)(A) of the NCTE Act, 1993. It is lastly submitted by Mr. Oza that, at the most, NCTE could have invoked the powers of revision/review, but, the same authority could not have revoked the recognition in exercise of powers under Sections-17(1) of the NCTE Act, as according to him, the appellant after obtaining the recognition has not violated any condition of recognition by which the same was granted.
7. The appeal is opposed on behalf of NCTE by learned Assistant Solicitor General, Mr. P.S. Champaneri, for respondent No.2 as well as Mr. Thakkar appearing for respondent No.3.
8. Mr. Champaneri argued that by virtue of remand order, the appellate authority will immediately decide the appeal and if the appeal is allowed, the consequential order can be passed and University can be asked to allot the students, if the appellant institution is finally recognized. Mr. Champaneri further states that the inspecting team of the WRC may be directed to conduct inspection immediately or in any case within a period of one week and according to him, a visiting team can inspect the new premises by 05.07.12 and their report can be placed before the appellate authority and appellate authority be directed to take the decision latest by 15.07.2012. According to him if appeal is allowed, then, the students can be allotted by the University for the academic term, which is, yet, to commence.
9. Mr. Thakkar, learned Counsel for Respondent No.3, argued that as on today, institution is not having any recognition, in fact, the institution is not recognized by the NCTE as on today, and therefore, it would not be appropriate to ask the University to allot the students to such an unrecognized institution since ultimately fate of the students will suffer, if such a direction is given. Mr. Thakkar also argued that the academic term is required to be completed within the stipulated time. He submitted that so far as taking of examination is concerned, it is only the University, which is the competent authority to take a decision in that regard. According to him, even under Section-17 if it is found that the initial recognition was wrongly granted, then, Section-17 is the only provision under which the recognition can be canceled. It is, further, submitted by him that it is for the Court to consider as to whether a direction can be given for allotment of students in case the appeal of the present appellant is allowed by the appellate authority. It was also argued by Mr. Thakkar that in case the appeal is not allowed and order of allotment of students is passed, then, such students cannot be allowed to appear in the examination by the University in view of the decision of the Apex Court in “ADARSH SHIKSHA MAHAVIDYALAYA & ORS. VS. SUBHASH RAHANGDALE & ORS.”, reported in (2012) 2 SCC 425.
10. We have heard learned Counsel for the parties at length and have gone through the voluminous documentary evidence, though, the matter is in a narrow compass i.e. as to whether the interim protection, granted in favour of the appellant, should have been continued or not. It is required to be noted that earlier when the appellant filed a writ-petition being Special Civil Application No.4576 of 2009, which was heard with other group of matters. The Division Bench of this Court had asked various institutions to cure the defects within a particular time limit. In the aforesaid judgment, which is produced at Page-81, the Division Bench has observed as under, “If any institution fails to send such a communication within the time permitted, its recognition shall automatically stand withdrawn without requirement of passing any order. Though students already admitted shall not be affected by such withdrawal, the institution will not be permitted to admit any students in the next academic year. ”
11. It is required to be noted that, at the time of arguing the said matters before the Division Bench, the appellant never argued that there is no question of removing the defects by the appellants, as the new building is already constructed. In fact, no argument in connection with Sections-17 of the NCTE Act was addressed before the Division Bench to the effect that once the recognition was given, no fresh order under Section-17 of the NCTE Act can be passed. So far as that point is concerned, in view of the judgment of the Division Bench, wherein the appeals were disposed of by giving certain directions, said argument cannot be allowed to be agitated now in the present proceedings. It is true that initially ad-interim-reliefs were granted in favour of the appellant and from time to time, it was allowed to enroll students and thereby it continued its educational activities. The main grievance of the appellant is that respondent No.1 should have directed the Visiting Team to visit the new building, which according to him, fulfills all necessary criteria. It is required to be noted that the learned Single Judge has already remanded the matter to appellate authority to consider the aspect, whether the new building fulfills the required criteria or not and the appellate authority has to consider the said aspect in the light of the documents available on record. However, it is required to be noted that as on today, there is no recognition in favour of the appellant and the original order canceling the recognition of the appellant is still in existence, unless it is set aside by the appellate authority. The order withdrawing the recognition of the appellant is neither stayed by the appellate authority nor by this Court. Therefore, now, in a subsequent proceedings we cannot accept the request of Mr. Oza that we may stay the original order by which the recognition is withdrawn and which is under challenge before the appellate authority. If today there is no recognition in existence, we cannot given any direction to the University to allot the students to appellant institution so that appellant institution can start enrolling the students and continue with the academic term.
In a given case, if, the students were already enrolled and subsequently recognition is canceled, with a view to see that the students may not suffer, we can direct the University to conduct examination of such students and ask the NCTE that withdrawal of recognition shall come into force from the next academic year. In the instant case, no students are enrolled as on today, so there is no question of equity which may arise in favour of the appellant or the students. At this stage, reference is required to be made to certain observations made by the Hon'ble Supreme Court in ““ADARSH SHIKSHA MAHAVIDYALAYA & ORS.”(Supra), wherein at Para- 87(ix) it has been observed by the Supreme Court as under:
“(ix) Once the recognition is withdrawn under Section 17(1), the institution concerned is required to discontinue the course or training in teacher education and the examining body is obliged to cancel the affiliation. The effect of withdrawal of the recognition is that the qualification in teacher education obtained pursuant to the course or training undertaken at such institution is not to be treated as valid qualification for the purpose of employment under the Central Government, any State Government or University or in any educational body aided by the Central or the State Government.”
12. In Para-(xviii) thereof, the Apex Court has further observed that:
“(xviii) In future, the High Courts shall not entertain prayer for interim relief by unrecognized institutions and the institutions which have not been granted affiliation by the examining body and/or the students admitted by such institutions for permission to appear in the examination or for declaration of the result of examination. This would also apply to the recognized institutions if they admit students otherwise than in accordance with the procedure contained in Appendix 1 of the Regulations.”
13. In view of the mandate of the Supreme Court, as aforesaid, at this stage, this Court cannot direct the University to allot the students, especially, when there is no recognition, as on today, in favour of the appellant institution. The argument of Mr. Oza that subject to the decision of the appellant authority students may be allowed to be enrolled by giving direction to the University on undertaking of the appellant that in case the appellate authority dismisses the appeal, the appellant will not enroll fresh students, next year, cannot be accepted by us for a simple reason that if the appeal is dismissed by the appellate authority then even if there is no recognition in favour of the appellant institution, the institution may proceed to continue educational activity and in that case, the University may certainly refuse to take examination of such students, in view of the direction of the Supreme Court, as pointed out above. Considering the said position, even if this Court, at this stage, passes an order that for this academic year students be allotted, though, the recognition is withdrawn and then, if the appeal is dismissed by the appellate authority, such students shall not be able to appear in the examination and their whole year will be wasted. If we pass such an order, it may jeopardize the carrier of students, who may be enrolled, pending the decision in connection with recognition before the appellate authority. It is no doubt true that Respondent No.1 should have been vigilant enough to get the new building inspected, which according to appellants, fulfills all necessary criteria. Here, it is required to be noted that even when the earlier Division Bench disposed of the group of writ- petitions, there was no order that recognition should be continued and even subsequent thereto no such order is in existence and it will not be possible for us to grant such a protection staying the order of withdrawal of recognition passed by respondent No.1, at this stage. Though, initially, in 2009, such interim orders were granted staying the withdrawal of recognition. However, subsequently, in a group of petitions disposed of by another Division Bench, such orders were not continued, as we have already discussed above. In this case, in view of the judgment of the Supreme Court in ““ADARSH SHIKSHA MAHAVIDYALAYA & ORS.”(Supra), this Court, now, cannot give such a direction asking the University to send the students which the appellant can enroll. Considering the same, in our view, no relief can be given to the appellant in the manner in which it is prayed for by Mr. Oza in this appeal.
14. Considering the facts and circumstances of the case and in view of the arguments of Mr. Champaneri that appellate authority shall dispose of the appeal within a stipulated time, we issue following directions:
(1) The Inspecting Team of Respondent No.1 will visit the new premises of the appellant preferably by 2ND JULY, 2012, but, not later than 5TH JULY, 2012. Inspecting Team will place the report of inspection before the appellate authority IMMEDIATELY and a copy thereof be also given to the appellant. The appellate authority will dispose of the appeal without any delay, in any manner, after hearing the concerned parties, latest by 15TH JULY, 2012 and they will not seek any EXTENSION of time in this regard.
(2) The appellant is directed to SUPPLY address of the new premises to respondent No.1 without delay so that they can inspect the said premises within the time stipulated, as above.
(3) In case the appeal of the appellant is ALLOWED by the appellate authority, meaning thereby if the recognition is given to the appellant institution, the University will, IMMEDIATELY, send the students for enrollment to the appellant institution, subject to fulfilling of other conditions by the appellant institution as required by law to the satisfaction of the University such as requisite number of academic staff, their qualification, etc..
(4) Respondent No.2 will take decision without fail, latest by 15TH JULY, 2012, as is assured by Mr. Champaneri.
(5) Till, the appellant institution gets proper recognition, they will NOT ENROLL the students, but, if they get recognition they will be ENTITLED to enroll the students, in accordance with law.
(6) A copy of this order be made available to respondent Nos.1 and 2, each.
15. Subject to the above observations and directions, this appeal stands DISPOSED OF.
Since, appeal is disposed of, civil application shall not survive and it also stands DISPOSED OF, accordingly.
(P.B. MAJMUDAR, J.)
(MOHINDER PAL, J.)
Umesh/