The writ petition is directed against the order of the second respondent dated 9.4.2009 and the subsequent order of the first respondent, being the Appellate Authority, dated 7.8.2009. Under the impugned order dated 9.4.2009, the second respondent has withdrawn the recognition granted to the petitioner-institution to run D.T.Ed course for the academic year 2009-2010, which was confirmed by the Appellate Authority by the impugned order dated 7.8.2009.
2.1. The petitioner-society is running B.Ed. and D.T.Ed. courses at Mahe as an unaided institution. The B.Ed. course was approved by the respondents and run from the year 1997. The same was also approved by the Government of Kerala. It appears that one Haridasan, who has failed in his efforts to get appointed as the Principal of the petitioner-institution, has made a complaint and he has also filed a writ petition seeking cancellation of the recognition by the respondents to the petitioner-institution, which was dismissed by the Kerala High Court on 2.2.2007.
2.2. It was based on the complaint stated to have been given by the said Haridasan, the second respondent has issued a notice on 3.2.2009, after sending inspection team which has conducted inspection on 2.5.2008. However, a copy of the inspection report was not furnished. Certain irregularities were pointed out in the show cause notice dated 3.2.2009 regarding the extent of lands, the lease-cum-rental building to the extent of 1.24 Acres, that B.Ed. college is run in own building and T.T.C (D.T.Ed. Course) was run in a rented building, that the website of the institution was not functional, and that furniture was not available.
2.3. The petitioner has submitted a detailed reply on 25.6.2009 and 26.4.2009 pointing out that the complaint was motivated, that geographically Mahe itself has an extent of 9 square miles and the land holding of an individual varies from 5 to 10 cents and therefore, it is impossible to procure a piece of land of 2 acres at a stretch, that the petitioner has put up building after obtaining permission from the Government, that the land of 1.16 Acres has been earmarked for playground near the vicinity of the college, that even the Government college at Mahe, namely Mahatma Gandhi Arts and Science College has a playground situated away from the main building, etc., apart from stating that the infrastructure facilities are available.
2.4. However, the second respondent by the impugned order dated 9.4.2009, without referring to the explanation withdrew the recognition for D.T.Ed. course from the academic session 2009-2010. The petitioner, who was not given a copy of the inspection report before the impugned order was passed by the second respondent, has obtained a copy of the inspection report under the Right to Information Act, 1995 and found that the inspection report has stated that the new building is quite impressive and the library and laboratories are fairly equipped, that the land is not at one place, that the play facilities are little far away from the institution, that the temporary accommodation where the T.T.C (D.T.Ed. course) is permitted is not suitable for running a teacher education programme, that permanent building is not sufficient to run both the B.Ed. and T.T.C (D.T.Ed. course) programmes, that the management is keeping the records updated, including the bank accounts, and that the complaints are exaggerations. In fact, in the report it was suggested to advise the management to have sufficient infrastructural facilities. In spite of that the second respondent has chosen to pass orders withdrawing the recognition in respect of the D.T.Ed. course.
2.5. It is also stated that when the team has visited in August, 2008, the three years period has not completed within which time the construction should be completed, since recognition was granted in October, 2005 and that presently one additional floor has been put up to house the D.T.Ed. course having intake of 50 students and built up area is about 2552.60 square meters which is more than the stipulated 2500 square meters as per the Regulations.
2.6. Under such circumstances, the petitioner has preferred an appeal to the first respondent against the order of the second respondent and that appeal was rejected by the first respondent, against which the present writ petition is filed on the basis that the impugned orders are violative of Articles 14 and 19(1)(g) of the Constitution of India, that the show cause notice issued was bereft of particulars, that the copy of the inspection team report was not served before the second respondent passed the impugned order, that the ground on which the impugned order was passed was untenable and contrary to the statutory norms, that there are no norms that the land should be contiguous, that as per the original recognition granted in October, 2005, within three years the new construction is to be put up, but at the time when inspection was effected it was two years odd and there was sufficient time available to the petitioner to put up the new construction and accordingly, construction has been put up, but the said fact has not been taken note of by the respondents.
3. Mr.P.V.S.Giridhar, learned counsel appearing for the petitioner submits that when the original recognition was given in the year 2005, three years time has been given to put up construction in its own premises and shift the institute and even before the completion of three years, the inspection team was sent and without even furnishing a copy of the inspection report the second respondent has passed the impugned order cancelling the recognition granted for conducting D.T.Ed. course. Inasmuch as the inspection report copy has not been furnished, the impugned order passed by the second respondent and the subsequent order of the first respondent Appellate Authority suffers from illegality, as the same is in violation of the principles of natural justice.
4.1. On the other hand, it is the contention of Mr.K.Ramakrishna Reddy, learned counsel appearing for the respondents that as per the norms the petitioner ought to have shifted to the permanent building. Original recognition having been granted on 18.10.2005, the petitioner should have shifted to the permanent building on or before 17.10.2008. The petitioner has not shifted to the permanent building and therefore, there is no need to give any opportunity and cancellation of recognition is within the power of the second respondent.
4.2. It is his submission that the show cause notice itself was issued on 3.2.2009, namely after completion of three years, and even at that time the classes were conducted in the leased premises. It is his submission that when once the inspection team has inspected during that time, the infrastructural facilities must be available and subsequent rectification cannot cure the original defect and in such circumstances, it is his submission that it is not the duty on the part of the first respondent - Appellate Authority to give any further opportunity to the petitioner.
5. On record it is seen that the petitioner institution has been granted recognition on 18.10.2005 to offer Elementary (D.T.Ed.) course of two years duration from the academic session 2005-2006. The recognition was granted after referring to various documents and having satisfied that the petitioner institution has acquired land for setting up teacher training institute, that the petitioner institution will ensure that the permanent building is constructed within a period of three years on the acquired land. One of the conditions of recognition under Clause 3(b) is "the institution shall shift to its own premises within three years from the date of recognition (in case the course is started in temporary premises)". It is also subject to further condition under Clause 6 that "if the institution contravenes any of the above conditions or any of the provisions of the NCTE Act, Rules, Regulations and Orders made or issued thereunder, the Southern Regional Committee may withdraw the recognition under the provisions of Section 17(1) of the NCTE Act, 1993".
6. At the time when the said recognition was granted on 18.10.2005, it was the Regulations, 2002 which was in operation. As per Appendix-5, Clause 7(d) of the said Regulations, 2002, which is as follows:
"7. Infrastructural Facilities:
(a) to (c) ***
(d) To provide these facilities, the Management/ Institutions shall, at the time of making application, have in its possession adequate land/land and building on ownership basis free from all encumbrances. Govt. land acquired on long-term lease as per the law of the concerned State/UT will also be considered valid for the purpose. Pending construction of permanent building in the above land, the institution may provide these facilities in suitable temporary premises up to a maximum period of 3 years, before expiry of which the institution should shift to its permanent building."
a maximum period of three years is provided for putting up the permanent building facilities.
7. A reference to the show cause notice issued by the second respondent dated 3.2.2009 shows that certain complaints have been received against the petitioner institution based on which it was decided to send a fact finding committee and inspection was carried out on 2.5.2008. The show cause notice shows that the inspection report dated 13.10.2008 has shown the following discrepancies:
"1. The society has procured land at different places stretched over at different places as the following:
Rs.No.25/7-4 Cents.
Rs.No.8/2, SS 7-10, 1 acres 16 cents.
Rs.No.25/7B, 25/6-24 cents.
Rs.No.76.5-50 cents
2. Lease cum rental building - total land 1 acre 24 cents.
3. The B.Ed. college has been running in own building and TTC in rented building.
4. The B.Ed. college is functioning in a building constructed on 28 cents of land. The D.T.Ed. course was recognized in 2005 and three years period has lapsed. But, this course is being run in a lease cum rental building. As per NCTE regulations, the institution had to be shifted to permanent premises within three years.
5. The website of the institution is not functional.
6. The furniture is not available for D.T.Ed course."
8. Quoting the said instances, by invoking Section 17 of the NCTE Act, 1993, the said show cause notice was issued as to why recognition should not be withdrawn. The petitioner, in the reply dated 22.5.2009, has explained each of the six deficiencies with the following explanation:
"1. The Society manages B.Ed. and T.T.C. Courses in Mahe. We have completed 11 years with B.Ed. Programme. The B.Ed. Course is conducted in the new building constructed as per NCTE norms. Geographically Mahe is one of the four segments under Union Territory of Pondicherry. The total extent of Mahe itself is 9 Sq.miles. The specific characteristic of Mahe is it is thickly populated and the holding of an individual varies from 5 cents to 10 cents of land. It is highly impossible to procure a piece of land for 2 acres at a stretch. The oldest Govt. College at Mahe itself is an example for it. The building is situated quite away from the play field.
Totally, we have procured 1 acre 94 cents of land put together. After obtaining permission from the Govt. of Pondicherry the building was constructed in the heart of Mahe town for B.Ed. Course utilizing the land for 28 cents. This is a piece of land comprising 28 cents where 1+2 floors are constructed as per N.C.T.E. norms. 1 acre and 16 cents of land is quite nearby which is earmarked for play field. 50 cents have been procured to construct the ladies Hostel. The same plot is also nearby but it falls in different Sy.Nos.
2. The T.T.C. Course is conducted in a rental building where the B.Ed. Course was functioning for 5 years before constructing the new building. The same building was inspected by the N.C.T.E. team and found satisfactory before granting permission to B.Ed. Course. If it is satisfactory to conduct B.Ed. Course the same building is quite sufficient to conduct a unit of 50 students for T.T.C.
3. Due to scarcity of land in Mahe we have decided to construct one more floor on the top of the existing building where B.Ed. Course is conducted for which steps are taken for obtaining permission from building authority.
4. We do promise to abide by the rules and regulations of N.C.T.E. in respect of physical infrastructure facilities. So, we do hereby extend this undertaking that we will shift the T.T.C. Course in the new premises of our own before commencement of the next academic year. It will be intimated to the SRC of N.C.T.E to send an inspection team to verify the infrastructure facilities immediately after the work is completed.
5. The Website of the T.T.I. will be created with out any further delay.
6. The finding of the N.C.T.E. is not correct with regards to furniture to the T.T.I. We have enough furniture for T.T.I. to accommodate one batch of students."
9. It is also stated in the said reply that the complaint itself was made by one Haridasan, who has failed in his efforts to get himself appointed as Principal in the petitioner-institution and it was only a motivated complaint.
10. It is the case of the petitioner that the inspection report of the Committee which has inspected on 2.5.2008 was not served on the petitioner before the show cause notice was issued on 3.2.2009 and this fact stood uncontroverted. However, the case of the respondents is that even after completion of three years the new building has not been constructed and therefore, the respondents have got every right to cancel recognition. On the other hand, in the report of the inspection team, copy of which is stated to have been obtained by the petitioner under the Right to Information Act, the observations given by the inspection team are as follows:
The new building is quite impressive and the library and laboratories are fairly equipped.
The land is not at one place, it may be because of the typical nature of Mahe. The management created play facilities little far away from the institution.
The temporary accommodation wherein the TTI is permitted is not suitable for running a teacher education programme.
Technically the permanent building is not sufficient to run both the B.Ed. and TTI programmes.
The management is well keeping the records updated including the bank deposits, etc. Lastly the allegations made in the complaint letter are mere exaggerations. The management may be advised to add required infrastructural facilities sufficient enough to run both B.Ed. and TTI programmes in the existing permanent building.
The office of the SRC, the NCTE, may verify the land documents as they are in Malayalam.
11. The inspection team has found that the building is impressive and library and laboratories are well equipped, however the land is not in one place because of the typical nature of Mahe. It is also stated that the management is keeping all records intact and ultimately, stated that the allegations made in the complaint are exaggerations. However, there are two defects found by the inspection team as it is seen in the observation that the temporary accommodation where D.T.Ed. course is conducted is not sufficient to run the teacher education programme and technically the building is not sufficient to run both B.Ed. and D.T.Ed. programmes. Ultimately, the Inspection Team has recommended that the management may be advised to add infrastructural facilities sufficient enough to run both B.Ed. and D.T.Ed. courses in the existing permanent building. Therefore, a reference to the report shows that the permanent buildings have already been put up.
12. As stated above, even under the original order of recognition which was on 18.10.2005, three years time has been given which is up to October, 2008 and even during the time of inspection by the Committee on 2.5.2008, the Committee has found that the construction has been put up. If the constructed premises is not sufficient to run both B.Ed. and D.T.Ed. courses, the recommendation of the Committee is to give one more opportunity to the petitioner institution to provide the facilities, which means that the Committee felt that the facilities could be developed by the petitioner-institution, which, admittedly, is in existence for many years as a running institution.
13. In spite of such recommendations of the Committee, which is the only basis for the passing of the impugned order by the second respondent, the second respondent without even giving sufficient opportunity to the petitioner has abruptly withdrawn the recognition granted to the petitioner for running D.T.Ed. course and also decided to withdraw the recognition for B.Ed. course for academic session 2009-2010.
14. The reliance placed by the learned counsel for the respondents on the amended Regulations and Norms and Standards, which has come into effect from 10.12.2007, especially Regulation 8(10) which is as follows:
"8. Conditions for grant of recognition:
(1) to (9) **** (10) At the time of inspection, the building of the institution shall be complete in the form of a permanent structure on the land possessed by the institution in terms of Regulation 8(7), equipped with all necessary amenities and fulfilling all such requirements as prescribed in the norms and standards. The applicant institution shall produce the original completion certificate, approved building plan in proof of the completion of the building and built up area and other documents to the Visiting Team for verification. No temporary structure/asbestos roofing shall be allowed."
to the effect that at the time when inspection team visited if the building is not available, the respondents would be entitled to abruptly withdraw the recognition without even considering any other aspect, is totally untenable and opposed to the basic principles of natural justice.
15. It is true that as per the strict interpretation of the terms of the amended Regulations, 2007 it is open to the respondents to withdraw recognition on the basis that at the time of inspection the requirements have not been fulfilled. But that should have been in an objective manner and not in an authoritative way, especially on the factual situation in this case wherein the inspection team itself has recommended to give an opportunity to the petitioner for the purpose of rectifying the mistake, which appears to be a minor mistake, since the inspection team has found that the construction has been put up.
16. Moreover, by the time the inspection team visited the place, the three years period has not been completed. While the original recognition was given on 18.10.2005, the inspection team visited on 2.5.2008, much before the completion of three years without giving an opportunity to the petitioner to complete the construction and even the inspection report shows that opportunity must be given to the petitioner and there was sufficient time available for completion of three years. On the basis of the said report of inspection, which was conducted on 2.5.2008, presuming that on 3.2.2009 the petitioner has not completed the construction, the show cause notice has been issued.
17. The show cause notice, in my considered view is on a fallacious ground, especially when the second respondent has not chosen to wait till the completion of three years from the date of grant of recognition and only based on the report of the inspection team, a copy of which was not furnished to the petitioner, issued a show cause notice dated 3.2.2009 closing its eyes and without taking any care to find out as to whether the petitioner has fulfilled the construction facilities within three years from the original date of recognition.
18. It is very strange that the inspection team itself has found that the geographical character of Mahe is peculiar since the region itself is very limited and therefore, it is not possible to have vast areas of land and that has also not been considered by the respondents and the respondents technically, closing their eyes, have concluded to close down the institution which is in existence for many years without any complaint.
19. It is stated that the playground is 3 meters away from the college. Even that aspect has not been taken into consideration. It is more important to note that the first respondent Appellate Authority has not chosen to state anything except to write a single line order stating that the grounds of appeal are not acceptable. In fact, in the grounds of appeal the petitioner has raised so many grounds stating that the construction has been completed and the furniture is available. The Appellate Authority has not even taken note of the fact that the inspection has been completed before the expiry of three years and that the same cannot be a basis for issue of show cause notice. That by itself shows that the Appellate Authority has acted with total non application of mind. The Appellate Authority ought to have considered that the inspection of the College has been done within three years from the date of the original recognition and that three years time has been given to put up the construction and that it is based on such inspection report which was effected within three years period the entire show cause notice has been proceeded. The first respondent ought to have applied its mind and passed appropriate order, especially when institution like that of the petitioner, which is admittedly in existence for many years without any complaint, is sought to be closed simply because of a complaint given by one Haridasan. That apart, the deficiencies are not that grave like the change of the constitution of the society, etc. for taking such drastic action.
20. In the NCTE Act, 1993, Section 18 provides for an appeal against the order of the Regional Committee. Rule 11 of the National Council for Teacher Education Rules, 1997 provides for the procedure for disposal of appeals, which is as follows:
"Rule 11: Procedure for disposal of appeals:-
(1) On receipt of memorandum of appeal, the Council shall call for the records of the case from the Regional Committee concerned which passed the order appealed against and after giving the appellant a reasonable opportunity of being heard pass such orders as it may deem fit.
(2) The appellant shall be entitled to be represented by an employee or office of the appellant institution.
(3) The Council shall decide every appeal as expeditiously as possible and ordinarily every appeal shall be decided on a perusal of documents, memorandum of appeal, written arguments, if any, affidavits and after hearing such oral arguments as may be advanced.
(4) The Council shall endeavor to dispose of every memorandum of appeal within a period of three months from the date of its filing.
(5) The Council shall not ordinarily allow more than three adjournments in any appeal."
21. A reference to the above said Rule makes it clear that it is incumbent on the part of the Appellate Authority to apply its mind before making a decision. It cannot mechanically approve the decision of the second respondent simply because it is based on an inspection committee report. The impugned order of the Appellate Authority assigns no reason except to state as follows:
"AND WHEREAS after perusal of documents, memorandum of appeal, affidavit, VT Report and after hearing the oral arguments advanced during hearing, the Council reached the conclusion that there was no ground to accept the appeal and that it should be rejected. Accordingly, the appeal was rejected and SRC's order dated 9.4.2009 was confirmed."
22. Even if reasons are not given as a statutory Appellate Authority, there must be some inference from the reading of the order of the Appellate Authority that it has applied its mind, taking note of the various grounds raised by the appellant in the grounds of appeal. In the absence of such application of mind certainly, it is open to this Court to interfere to set right the wrong committed by the statutory Appellate Authority.
23. It is no doubt true that at the time of inspection the petitioner was having a duty to prove that the conditions are complied with. But, in the present case, when inspection was done within the period of three years there is no possibility for the petitioner to prove the same, because the petitioner had still five more months time. When that issue was raised before the Appellate Authority, the Appellate Authority, in my considered view, ought to have considered the said aspect along with inspection committee report dated 3.5.2008.
24. In such view of the matter, the impugned orders of the respondents are set aside. The writ petition stands allowed, however with liberty to the second respondent to conduct fresh inspection through its team and find out as to whether the conditions imposed while granting recognition on 18.10.2005 have been complied with and pass appropriate orders after giving opportunity to the petitioner.
The writ petition stands allowed in the above terms. No costs. Consequently, M.P.Nos.1 and 2 of 2009 are closed.
sasi To:
1. The Member Secretary, National Council for Teacher Education (NCTE) Hans Bhavan, Wing II 1, Bahadurshah Zafar Marg New Delhi 110 002.
2. The Regional Director Southern Regional Committee 1st Floor, C.S.D. Building H.M.T.Post, Jalahali, Bangalore 560 031