IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 907 of 2012 In SPECIAL CIVIL APPLICATION No. 7855 of 2012 With CIVIL APPLICATION No. 7554 of 2012 In LETTERS PATENT APPEAL No. 907 of 2012 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================= ================
========================================= ================ SWAMINARAYAN B.ED. COLLEGE Versus NATIONAL COUNCIL FOR TEACHERS'EDUCATION- WESTERN REGION & ORS.
========================================= ================ Appearance :
MR YATN OZA with MR PRATIK Y JASANI for Appellant. MR PS CHAMPANERI for Respondents : 1 - 2.
MR AMIT M PANCHAL for Respondent : 3, ========================================= ================ Date : 11/10/2012
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This Letters Patent Appeal is at the instance of an unsuccessful writ-petitioner and is directed against an order dated 16th June 2012 passed by a learned Single Judge of this Court by which His Lordship dismissed the Special Civil Application No. 7855 of 2012 filed by the appellant with costs.
2. The facts leading to the filing of the Special Civil Application, out of which the present appeal arises, may be summed up thus:
2.1 The appellant had made an application to National Council for Teachers' Education, Western Region, the respondent No.1, [NCTE] for opening a new B. Ed. College at the address given in the cause title of this appeal, and the same was sent with all relevant documents.
2.2 The consistent practice followed by the respondent No. 1 for grant of recognition is that after a particular Trust submits application, a visiting team constituted by the respondent No. 1 visits the place where the Trust wants to start the College to impart education in the stream of education. In the present case also, the visiting team carried out the inspection of the Institute as required under the relevant statute and the said team, on physical verification found that the appellant had fulfilled and satisfied all the criteria under the Act, and, therefore, submitted its report and recommendation to the respondent No.1 to grant recognition to run the B. Ed. College as prayed for by the appellant.
2.3 NCTE, vide order dated 17th March 2008 had given recognition to the appellant in exercise of power conferred under section 14 (3) (g) of the NCTE Act with effect from Session 2007-08 for B. Ed.
Course and intake capacity of 100 students was approved by the NCTE. According to the appellant, on a bare perusal of the order recognizing the appellant, it is clear that at the time of passing of the order, the respondent No.1, in exercise of the powers vested under section 14 of the NCTE Act granted recognition to the appellant College for conducting B. Ed course of one year duration with an annual intake of 100 students under clause 7(ii) of the Regulation. According to the appellant, the conditions, to which the above stated order was subject to have been fulfilled by the appellant.
2.4 Subsequently, the respondent No.1 issued a show cause notice on 28th April 2011 in exercise of powers conferred under section 17 of the NCTE Act and the appellant was called upon to explain with regard to the following aspects:
[i]. The institute shifted to its own premises without following the procedure laid down by the NCTE.
[ii]. Staff list was not approved by the affiliating University. [iii]. Principal was not qualified as per the NCTE Norms.
[iv]. The land documents duly certified by the competent authority was not submitted along with the application that was required as per the section 7(d) of the NCTE Norms and Standards 2002 or as per section 8(5) of the NCTE Norms and Standards 2005.
[v]. Duly approved staff list was not submitted.
2.5 According to the appellant, it had, in answer to the said notice, submitted a detailed reply along with necessary documents clarifying every query raised by the respondent No.1 in their show cause notice dated 28th April 2011.
2.6 The appellant alleges that without considering the submissions made in reply to the show cause notice by the appellant, the respondent No. 1 passed an order dated 25th July 2011 withdrawing the recognition of the appellant on the sole ground that the Principal of the College had not been appointed.
2.7 The appellant, being dissatisfied with the order dated 25th July 2011 preferred a writ-application being SCA No. 10359 of 2011 and this High Court, vide order dated 7th October 2011 dismissed the said application.
2.8 Being dissatisfied with the order dated 7th October 2011, the appellant preferred a petition before the Supreme Court of India being Special Leave Petition [Civil] No. 28529 of 2011 and the same was withdrawn by the appellant with a liberty to prefer an appeal before the respondent No.2 against the order dated 25th July 2011.
2.9 The respondent No.2, after considering the merits of the case, accepted the appeal of the appellant and directed the respondent No.1 to examine the staff profile of the appointed Principal. The respondent No.2, while accepting the appeal of the appellant, reversed the order dated 25th July 2011.
2.10 Since the recognition of the appellant was withdrawn, vide order dated 25th July 2011, the respondent No.3 suspended the affiliation of the appellant-College. The respondent-University had passed an order dated 30th November 2011 for suspension of the affiliation.
2.11 Despite the appeal of the appellant being accepted and the order dated 25th July 2011 was reversed by the respondent No.2, the respondent No.3 was not withdrawing the suspension of affiliation and, therefore, the appellant challenged the aforesaid decision of the University by filing a writ-application being SCA No. 6174 of 2012.
2.12 During the course of hearing, the University took a stance that the Principal so appointed by the appellant was not approved by the University and, therefore, the suspension of affiliation cannot be interfered with. This Court, by way of an interim order dated 11th May 2012, directed the respondent No.2 to consider the case of the appellant and the respondent University and to pass a fresh order within a period of 15 days and the matter was kept pending for hearing on 11th June 2012.
2.13 Thereafter, the respondent No.2 issued notice to the appellant as well as the University and after hearing the parties, dismissed the appeal of the appellant, vide order dated 28th May 2012, on the ground that the appellant had not followed the appropriate procedure for appointment of the Principal.
2.14 The appellant challenged the order dated 28th May 2012 passed by the respondent No.2 by filing Special Civil Application No.
7855 of 2012 which was dismissed by the learned Single Judge on 16th June 2012.
2.15 Being dissatisfied, the appellant has come up with the present Letters Patent Appeal.
3. Mr. Oza, the learned senior counsel appearing on behalf of the appellant, strenuously contended before us that the approach of the University as well as the respondent No.2 in dismissing the appointment of the Principal was hyper-technical. According to Mr. Oza, the Principal so appointed by the appellant is a highly qualified teacher and for appointing him, the appellant had followed the entire procedure as contemplated under the Ordinance of the University. Mr. Oza contends that the recognition of the appellant had been withdrawn only on the ground that there had been certain procedural lapses and, therefore, the appointment of the Principal was held to be not in conformity with the Ordinances of the University. Mr. Oza further contends that the purpose behind stipulating procedures for appointment is to see that the College gets the best candidate for the post of Principal, and according to him, in the instant case, the Principal appointed by the appellant was qualified much more than the requirement of the respondent No.1.
3.1 Mr. Oza further contends that the learned Single Judge ought to have appreciated that the order passed by the respondent No.2 was without jurisdiction inasmuch as initially, the recognition of the appellant came to be withdrawn vide order dated 25th July 2011 passed by the respondent No.1 and the said order was reversed by the appellate authority by passing a reasoned order dated 20th March 2012. According to Mr. Oza, the learned Single Judge ought to have appreciated that the respondent No.2 had no jurisdiction under the statute to review its own order and an appeal is provided under section 18 of the NCTE Act and the respondent No.2 can exercise its appellate power as contemplated under section 18 of the NCTE Act. According to Mr. Oza, under section 18(5) of the Act, a provision is made that the appellate authority can either confirm or reverse the order appealed against. In the instant case, the respondent no. 2 has reversed the order dated 25th July 2011 by passing order dated 20th March 2012 and unless the order dated 20th March 2012 is set aside by the competent authority, the respondent No.2 on its own cannot review its order dated 20th March 2012.
3.2 Mr. Oza contended that the learned Single Judge ought to have appreciated that the action of the respondent no. 2 in reviewing its earlier order and to confirm the order dated 25th July 2011 which was already set aside, was an order passed without authority.
3.3 Mr. Oza further contends that Ordinances 72(ii) 3 and 72 (ii) 6 are directory in nature inasmuch the said Ordinances are enabling provisions which do not provide any penal actions for their breach and the only ground on which the impugned order was passed by the respondent No.2 was that the appellant had not followed the procedure stricto-senso as mentioned in Ordinance 72(ii) 3 and 72 (ii) 6.
3.4 Mr. Oza further contends that the action of the University right from its inception was arbitrary inasmuch as initially, the Principal so appointed by the appellant was disapproved on the ground of qualification and thereafter, though the appellant appointed a highly qualified Principal, the same was disapproved on technical grounds. Mr. Oza points out that the appellant, for seeking sanction of the appointment of Principal had given about ten reminders to the University which were not responded. Mr. Oza, drew our attention to the fact that the provisions of the Ordinances indicated above are violated by the University itself, and thus, it is a fit case where we should set aside the order passed by the learned Single Judge.
4. Mr. Champaneri, the learned Assistant Solicitor General of India, appearing on behalf of the respondents No. 1 and 2, and Mr. Panchal, the learned counsel appearing on behalf of the University, have opposed the aforesaid contentions of Mr. Oza.
4.1 Mr. Champaneri submitted that the appellate authority had passed the earlier order dated 20th March 2012 on account of misrepresentation made by the appellant that the University had approved the appointment of Dr. Kantilal V. Gor as Principal. He submitted that if the appellant was aggrieved by the order dated 11th May 2012 of the learned Single Judge passed in the earlier writ application being SCA No. 6174 of 2012 in pursuance of which a subsequent appeal was filed, entertained and the impugned order came to be passed, the appellant ought to have challenged the order of the learned Single Judge without filing subsequent appeal. Mr. Champaneri submitted that while granting affiliation, the examining body is free to demand strict compliance of the conditions contained in the statute like the University Act or the State Education Board Act under which the Institute was established and in this case, the examining body has rightly held that the required procedures were not followed.
5. Mr. Panchal, the learned advocate appearing for the University, had adopted the aforesaid contentions of Mr. Champaneri and submitted in addition that the Executive Council of the University has disapproved the appointment of Dr. Gor as Principal of the Institute and also disapproved the selection procedure undertaken by the appellant. Mr. Panchal points out that the appointment made by the appellant was in blatant violation of the mandatory requirements of Ordinance 72. Mr. Panchal submits that the appellate authority heard the subsequent appeal only in view of the directions contained in order dated 11th May 2012 passed by the learned Single Judge of this Court in SCA No. 6174 of 2012. Mr. Panchal submits that the Executive Committee of the University did not accord sanction to the process undertaken by the appellant for appointment of the Principal in the meeting held on 22nd December 2011 which was communicated to the appellant vide order dated 21st January 2012. In spite of being aware of such decision, the appellant made misrepresentation before the appellate authority in the first proceedings before it that the affiliating University had granted sanction to the appointment of the Principal appointed by the appellant which led to the passing of the order dated 20th March 2012. According to Mr. Panchal, the appellant had suppressed the material facts before the authority concerned, and only on this ground, the appeal should be dismissed.
6. After hearing the learned counsel for the parties and after going through the aforesaid materials on record, we find that the first question that falls for determination in this appeal is whether the impugned order dated 28th May 2012 passed by the respondent No.2 can be said to be without jurisdiction on the ground that the appellate authority did not have the power to review or recall its own order.
7. It appears from the records that by virtue of the interim order dated 11th May 2012 passed by the learned Single Judge, the appellate authority reconsidered the matter. It appears that the appellant did not challenge the order dated 11th May 2012 and took advantage of such interim order. Thus, having taken benefit of the said interim order, the appellant now cannot turn round and say that the appellate authority had no jurisdiction to review the earlier order. We, therefore, find substance in the contention of Mr. Champaneri and Mr. Panchal, the learned counsel for the respondents, that the aforesaid submission of the appellant is not tenable.
8. The next question is whether there has been violation of the provisions of the University Ordinance in the appointment of the Principal justifying withdrawal of affiliation.
9. After going through the materials on record, we find that the selection of the Principal was not upset on the ground of lack of qualification of the concerned Principal but it was set aside on the ground that while appointing the said Principal, the provisions contained in Ordinances 72(ii) 3 and 72 (ii) 6 were not complied with. Although Mr. Oza tried to impress upon us that those provisions are directory and the University itself violates those provisions, we are not impressed by such submission. It is rightly pointed out by the learned Single Judge that while granting affiliation, the examining body is entitled to demand rigorous compliance of the conditions contained in the statute like the University Act or the State Education Board Act under which the Institute was established or the guidelines or norms which have been laid down by the examining body concerned. In spite of a specific violation of the University Ordinance as pointed out by the respondent No.3, we cannot direct the said authority to ignore the same. Even if it is assumed for the sake of arguments that a particular provision may not be mandatory but directory, but if the appropriate authority decides to follow the said provision and insist on strict compliance, a High Court, sitting in writ jurisdiction under Article 226 of the Constitution of India cannot set aside the order of the appropriate authority notwithstanding the fact that such authority demanded strict compliance. In other words, the High Court cannot set aside the order passed for full compliance of a statutory provision by directing the appropriate authority to ignore the same.
10. In our opinion, the respondent No.3 having invoked strict compliance of the procedure for appointment of the Principal, the appellant should comply with the strict compliance of the same.
11. We, therefore, find that in the facts of the present case, the learned Single Judge was quite justified in overruling the objections taken by the appellant and we do not find any reason to interfere with the decision of the learned Single Judge.
12. The appeal is, thus, devoid of any merits, and is accordingly dismissed.
13. In view of the above order passed in the main appeal, the Civil Application does not survive and it stands disposed of accordingly. Rule is discharged.
14. In the facts and circumstances of the case, there will be, however, no order as to costs in both the above matters.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]