1. What has come under scrutiny of law in this petition is the action of the National Council for Teachers' Education, New Delhi (hereinafter referred to as "the appellate authority" for the sake of convenience) respondent no.2 herein, of rejecting the appeal preferred by the petitioner-Institution and thereby, withdrawing the recognition accorded under The National Council for Teachers' Education Act, 1993 (hereinafter referred to as "the NCTE Act" for short).
2. The aforesaid action has been taken in the backdrop of highly disputed questions of facts surrounding the appointment of Principal in the petitioner-Institution, which is evident from the observations made by the appellate authority in the order dated 28.05.2012, which is the order impugned. The relevant portion of the order reads as under;
"And whereas the Council perused the copies of the documents furnished by the University including the agenda placed before the Executive Committee, minutes of the Executive Committee and the letter dated 21.01.2012 communicating the University's disapproval of the appointment of Dr. Kantilal V. Gor as Principal. The Council noted that the appellant who made a submission earlier that the University has approved the appointment of Dr. Kantilal V. Gor as Principal has not produced any document in support of his claim. On the other hand, the University has convincingly established through documentary evidence that they have disapproved the appointment. In the circumstances, the Council concluded that in supersession of the Order of the Council dated 20.03.2012, the appeal deserves to be rejected and the Order of the WRC dated 25.07.2011 withdrawing recognition confirmed."
2. It all began by the issuance of a show-cause Notice dated 28.04.2011 to the petitioner-Institution by respondent no.1, in exercise of powers u/s. 17 of the NCTE Act, asking the petitioner-Institution to submit its explanation on the following issues;
(i) The Institute shifted to its own premises without following the procedure laid down by the NCTE.
(ii) Staff list is not approved by the affiliating University.
(iii) Principal is 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 is not submitted.
3. The petitioner-Institution gave its reply to the Notice along with supporting documents.
4. On 27th - 29th June 2011 the said reply was considered by respondent no.1 in its Meeting and it was decided to withdraw the 'recognition' of the petitioner-Institution for conducting B.Ed Course from the next Academic Session for the reason that "Principal has not been appointed" and an order in that regard came to be passed on 25.07.2011.
5. In pursuance of the above order passed by respondent no.1, respondent no.3, Hemchandracharya North Gujarat University, Patan (hereinafter referred to as "the University" for the sake of convenience) suspended the affiliation of the petitioner-Institution, by order dated 30.11.2011. It may be noted that the said order dated 30.11.2011 is not under challenge in this petition.
6. Being aggrieved by the order of withdrawal of 'recognition' dated 25.07.2011, the petitioner-Institution preferred writ petition before this Court by way of filing Special Civil Application No.10359/2011. However, the said petition was dismissed by the Division Bench of this Court by judgment and order dated 07.10.2011.
7. Against the said judgment and order, the petitioner-Institution preferred Special Leave Petition (Civil) No.28529/2011 before the Apex Court. However, the same was disposed of as withdrawn by order dated 13.10.2011 with a liberty to the petitioner-Institution to prefer a statutory appeal against the order of withdrawal of 'recognition'.
8. In pursuance of the order passed by the Apex Court, the petitioner-Institution preferred appeal u/s.18 of the NCTE Act before the appellate authority. In the appeal proceedings, it was submitted on behalf of the appellant (the petitioner herein) that one Dr. Anilsinh Chauhan was appointed as Principal after following due procedure but, his appointment was not approved by the University and the same was not communicated to the WRC. Thereafter, one Dr. Kantilal V. Gor has been appointed on 11.10.2011 as Principal of the Institution. It was also submitted on behalf of the appellant (the petitioner herein) that the affiliating University has approved the appointment of Dr. Kantilal V. Gor for the Post of Principal. On the basis of the above statement, the appellate authority concluded that the petitioner-Institution now has a duly qualified Principal, as per the NCTE norms and therefore, adequate ground was there to reverse the order dated 25.07.2011 passed by respondent no.1.
9. It appears that the respondent-University was not served with a copy of the appeal preferred by the petitioner-Institution before the appellate authority. It was during the interregnum period, viz. the period between 13.10.2011 to 20.03.2012, that one could witness the beginning of the end of confidence between the parties.
10. On 03.10.2011 the petitioner-Institution published an Advertisement for recruitment of Principal by Open Interview in two local daily. Pursuant thereto, applications were received and Interview was held on 10.10.2011. In the said Interview, a candidate (Dr. Kantilal V. Gor) was selected. The petitioner-Institution addressed communication dated 11.10.2011 to the University informing that it has appointed Dr. Kantilal V. Gor as Principal of the Institution on 10.10.2011, in pursuance of an Open Interview, and requested the University to approve the appointment. However, considering the controversy involved, the issue of approval of appointment was placed before the Executive Committee of the University. The Executive Committee came to the conclusion on 22.12.2011 that the appointment made by the petitioner-Institution was in breach of Ordinance 72 of the Hemchandracharya North Gujarat University Act (hereinafter referred to as "the University Act" for short) and thereby, refused to accord sanction to the appointment of Dr. Kantilal V. Gor for the Post of Principal of the petitioner-Institution.
11. For ready reference, the relevant provisions of Ordinance 72 are reproduced hereunder;
"72(i) Every college and recognized institution shall report to the Executive Council all changes in its teaching staff within fifteen days from the date on which a member of the teaching staff has joined or is relieved, as the case may be. Those appointments which are not reported within this period shall not be approved from the said academic term. The process fee for the recognition of Principal and other teaching staff shall be Rs.500/- (Rupees Five hundred only) for each case. The fee for this purpose shall be non-refundable.
(ii) Following procedure shall be followed regarding applications for posts:
& (2) .....
(3) A Margin of at least fourteen days from the date of the publication of the advertisement in news-papers is kept for receiving applications.
& (5) .....
(6) Affiliated colleges shall not arrange open interview. However, the Vice-Chancellor shall be the competent authority to give permission to arrange open interview, as special case."
12. Here, it is pertinent to note that the petitioner-Institution had challenged the order dated 30.11.2011 passed by the respondent-University, suspending the affiliation of the petitioner-Institution, before this Court by way of filing Special Civil Application No.6174/2012. In the said petition, this Court passed an interim order on 11.05.2012, which reads as under;
"Heard Mr. Pahwa, learned advocate for petitioner and Mr. Panchal, learned advocate for the respondent university.
The petitioner has taken out present petition challenging order dated 30.11.2011 suspending petitioner's affiliation passed by the respondent university.
It appears that the respondent NCTE has, vide order dated 25.7.2011 withdrawn petitioner's recognition on the ground that the petitioner has failed to appoint duly qualified principal.
In pursuance of the said order by respondent NCTE the respondent university passed impugned order dated 30.11.2011 suspending petitioner's affiliation with the university.
The petitioner has claimed that thereafter the petitioner had undertaken the process of appointing principal after following prescribed procedure and one Mr. K.V.Gor has been selected and appointed by the petitioner. It is claimed that appointment letter dated 11.10.2011 is issued in favour of said Mr. Gor and vide communication dated 11.10.2011 said Mr. Gor has accepted the appointment and filed joining report dated 11.10.2011.
It is also claimed that after completing the said procedure the petitioner preferred appeal before the appellate authority against above referred order dated 25.7.2011 passed by respondent NCTE. It appears that the petitioner represented before the appellate authority that appointment is made and it is approved by the university. The appellate authority, therefore, after considering the said submission recorded its satisfaction about appointment of principal and reversed the order dated 25.7.2011 vide its order dated 20.3.2012.
In light of the said order dated 20.3.2012 the petitioner has claimed that university should withdraw the order of suspension of affiliation.
Mr.
Panchal learned advocate for respondent university has opposed the petition and said request and submitted that respondent university has informed the petitioner vide communication dated 21.1.2012 (page 143 of memo of petition) that for the reasons mentioned in the said communication the appointment of said Shri, Gor as principal is not approved. The respondent has relied on the observation in para 24 of the decision by the Apex Court in case of Chairman, Bhartia Education Society Vs. State of Himachal Pradesh (2011 (4) SCC 527).
The petitioner has raised dispute about the respondent's submission based on letter dated 21.1.2012 and it is submitted that the respondent university has manufactured the said communication and it is not genuine and it has not been received by the petitioner.
In light of such assertion by the respondent university and allegation by the petitioner in connection with the said letter dated 21.1.2012, highly disputed question of facts have arisen which cannot be decided at interim stage.
Therefore, at this stage and in light of such disputed facts it is not possible to pass any order of any interim relief as prayed for.
A very serious allegation is made by petitioner against a statutory body i.e. respondent university, which the petitioner must make good and establish in all respect. Unless that is done, a communication which is placed on record of petition, under an affidavit, before the Court cannot be lightly ignored. On the other hand it is also relevant to mention that any evidence demonstrating dispatch of the said communication by respondent university and its receipt by petitioner is not presently available on record. The respondent university pray for time to place such evidence on record.
On the other hand petitioner has submitted that the university has commenced the process of inviting applications for admission and for allotment of students and that therefore interim relief may be granted since NCTE has reversed the order withdrawing the recognition and that therefore the affiliation, at least provisionally, may be restored.
It is clear that petitioner is heavily relying on the order dated 20.3.2012 passed the appellate authority. However, on perusal of the said letter it emerges that the said order has been passed by respondent NCTE on the basis of petitioner's representation that principal's appointment (i.e. of Mr. Gor) is approved by the university whereas the respondent university has disputed the said submission by the petitioner.
In this background, at this stage it is not possible this Court to grant any interim relief as prayed for, more so when necessary documents which can conclusively establish either of the two assertions, is not available on record.
Therefore, it is considered appropriate to pass below mentioned order.
The further hearing of present petition is adjourned to 11.6.2012 i.e. on 1st day after reopening of the Court after summer vacation. In the meanwhile the contesting parties may place on record relevant material on which they seek to rely.
Since the respondent NCTE has passed the order dated 20.3.2012 on petitioners representation that principals appointment is approved by university, the respondent NCTE i.e. the appellate authority is directed to hear the petitioner and the respondent university and to pass appropriate order after hearing the petitioner and respondent university and after considering the relevant documents which may be placed on record of the case by the petitioner and the university to support their rival and respective claims. For the said purpose the petitioner will be at liberty to make an application within 3 working days to the respondent NCTE / appellate authority (with a copy to the respondent university). The respondent NCTE / appellate authority, upon on receipt of such application will inform the petitioner and respondent university by fax message the date on which the said two parties should appear for hearing before the appellate authority. The date for hearing may be scheduled within period of 3 working days after receipt of the applicator from the petitioner. The petitioner and respondent university shall, through their representative remained present before the respondent NCTE / appellate authority and make their submissions. Upon conclusion of hearing the respondent NCTE shall pass appropriate order within 3 days. The above procedure may be completed within total span of 15 days. The order which may be passed by the appellate authority shall be placed on record of present petition. If the order is passed in favour of the petitioner then the respondent university will take, on provisional basis appropriate steps to provisionally restore petitioner's affiliation and consider the petitioner for allotment of students. This will be subject to result of the petition or any other or further order that may be passed by the Court in present petition. This will not create any right of equity in favour of the petitioner."
13. In pursuance of the aforesaid interim order of this Court, the petitioner filed an appeal before the appellate authority. The appellate authority heard both the sides and thereafter, by impugned order dated 28.05.2012, rejected the appeal preferred by the petitioner mainly on the ground that though the petitioner had earlier made a claim that the University has approved the appointment of Dr. Kantilal V. Gor as Principal but, it has not produced any document in support of its claim and on the other hand, the University has established through documentary evidence that it has disapproved the said appointment.
14. On 11.06.2012 the petition being S.C.A. No.6174/2012 came to be disposed of with a liberty to the petitioner to file appropriate petition for the purpose of challenging the order dated 28.05.2012.
15. Being aggrieved by and dissatisfied with the impugned order dated 28.05.2012 passed by the appellate authority and by the action of the University of not allotting students for the Academic Session, the petitioner-Institution has preferred the present petition.
16. Heard learned counsel for the respective parties.
17.0 Mr.
Navin Pahwa learned counsel appearing with Mr. Pratik Y. Jasani for the petitioner submitted that the appointment of the Principal was done as per the norms and standards prescribed by the NCTE. It is submitted that the Principal so appointed is highly qualified and fulfills all criteria laid down by the NCTE and therefore, the ground on which the impugned order was passed does not remain.
17.1 It is further submitted that the impugned order passed by the appellate authority, respondent no.2 herein, is without jurisdiction. It is submitted that respondent no.2 does not have power to review or recall an order passed in appeal preferred u/s.18 of the said Act. It is submitted that initially, the petitioner had assailed the order of withdrawal of recognition dated 25.07.2011 before the appellate authority by filing appeal u/s.18 of the said Act. The said appeal was allowed by order dated 20.03.2012 and the order of withdrawal of recognition dated 25.07.2011 came to be reversed. The provision of Section 18 of the Act does not give any powers of review to the appellate authority and hence, the impugned order passed by the appellate authority is bad in law and without jurisdiction.
17.2 It is also submitted on behalf of the petitioner that when the appellate authority had passed the impugned order, the petitioner had a valid recognition in its favour since the earlier appeal filed by the petitioner had been allowed by order dated 20.03.2012. The proceedings of the appeal, were, thus, finally concluded and the order of withdrawal dated 25.07.2011 had been reversed. Thus, the order dated 20.03.2012 had attained finality and the appellate authority had no power to take away the valid recognition granted to the petitioner-Institution.
17.3 It is further submitted on behalf of the petitioner that the main ground on which the impugned order is passed is that the petitioner-Institution has not complied with the requirements of Ordinance 72(ii)(3) & 72(ii)(6) of the Act. It is submitted that the provision of Ordinance 72(ii)(3) is directory in nature inasmuch as it does not provide for any consequence as to breach thereof whereas, under Ordinance 72(ii)(6), the affiliated colleges are not vested with the power to arrange Open Interview and the Vice-Chancellor has been designated as the competent authority to grant permission to arrange Open Interview under special circumstance. It is submitted that the above provisos are directory in nature and that no fault could be found so long as substantial compliance thereof is made.
17.4 It is submitted on behalf of the petitioner-Institution that Open Interview was conducted by the Selection Committee of the University and therefore, there is complete acquiescence on the part of the University with regard to conducting the selection process. Therefore, Ordinance 72(ii)(6), as it is, permits waiver of such condition. Hence, the provision of Ordinance 72(ii)(6) is an enabling provision and no penal action can be taken on the ground of so-called breach of the said provision.
17.5 It is further submitted that the time period of 14 days prescribed in Ordinance 72(ii)(3) has been provided with a view to give suitable time to the candidates to make applications. The candidate selected by the petitioner fulfills all the norms and standards prescribed by NCTE and the only formality which remains is to re-invite the Selection Committee and to seek their seal of approval. Therefore, the stand adopted by respondent no.2 is hyper technical and deserves to be quashed and set aside in the interest of justice and equity.
17.6 It is submitted on behalf of the petitioner that the stand taken by the respondents is arbitrary and discriminatory since many Colleges, having similar issue of non-appointment of Principal, have been given clean chit, after the Principal had been appointed by them. However, the petitioner herein has been meted out an arbitrary treatment at the hands of the respondents.
17.7 It is lastly submitted that the statement regarding approval of the appointment of Dr. Kantilal V. Gor by the affiliating University was made on account of the fact that no reply was given by the University to about ten reminders made by the petitioner-Institution in that regard and that there was no intention on the part of the petitioner-Institution to make any mis-representation before the appellate authority.
18.0 In support of the submissions, reliance has been placed on the following decisions;
18.1 In the case of Principal, King George's Medical College, Lucknow v. Dr. Vishan Kumar Agarwal and another, (1984) 1 SCC 416, it has been held that the rigour of a rule can be relaxed provided such relaxation is permissible under the rules or if the rule is directory and not mandatory. And even if it is permissible to relax a rule such relaxation must be governed by defined guidelines or objective considerations. No public authority, least of all a University which is entrusted with the future of the student community, can pick and choose persons for receiving the benefit of relaxation of the rules. It has been further held therein that having relaxed the rule, the authority cannot plead it to be mandatory.
18.2 In the case of State of Maharashtra v. Sant Dhyaneshwar Shikshan Shastra Mahavidyalaya and others, (2006) 9 SCC 1 and more particularly, in para-80, it has been held as under;
"80. In our opinion, the observations that the provisions of Sections 82 and 83 of the Maharashtra Universities Act are "null and void" could not be said to be correct. To us, it appears that what the High Court wanted to convey was that the provisions of Sections 82 and 83 would not apply to an institution covered by the 1923 Act. As per the scheme of the Act, once recognition has been granted by NCTE under Section 14(6) of the Act, every university ("examining body") is obliged to grant affiliation to such institution and Sections 82 and 83 of the University Act do not apply to such cases".
18.3 In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and others, 2011 (1) G.L.H. 11 and more particularly, in paras 145 to 147 therein, it has been held as under;
"145. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others, (2001) 4 SCC 448 a Constitution Bench of this Court rules that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.
146. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
147. A three-Judge Bench of this Court in Official Liquidator v. Dayanand and others, (2008) 10 SCC 1 against reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and others v. Umadevi (3) and others, (2006) 4 SCC 1 is binding on all Courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength.."
19. Mr.
P.S. Champaneri learned Asst. Solicitor General appearing for respondent no.1 submitted that the appellate authority had passed the earlier order dated 20.03.2012 on account of the mis-representation made by the petitioner-Institution that the affiliating University has approved the appointment of one Dr. Kantilal V. Gor for the post of Principal. He submitted that if the petitioner was aggrieved by the order passed by the learned Single Judge of this Court in S.C.A. No.6174/2012 dated 11.05.2012, in pursuance of which the subsequent appeal was filed, entertained and the impugned order came to be passed, then the petitioner-Institution ought to have challenged the order of the learned Single Judge of this Court dated 11.05.2012, without filing the subsequent appeal. However, on acquiescence of the order of the learned Single Judge and after having filed and contested the appeal, it is now not open to the petitioner-Institution to challenge the entire process.
20. In support of the submissions, learned counsel Mr. Champaneri has placed reliance on a decision of the Apex Court in the case of Adarsh Shiksha Mahavidyalaya and others v. Subhash Rahangdale and others, (2012) 2 SCC 425 wherein, one of the principle that has been laid down is that while granting affiliation, the examining body shall be free to demand rigorous compliance with the conditions contained in the statute like the University Act or the State Education Board Act under which it was established or the guidelines / norms which may have been laid down by the examining body concerned.
21.0 Mr.
Amit Panchal learned counsel for respondent no.3-University submitted that the petitioner-Institution does not have a Principal approved by the University, which is a mandatory requirement for the purpose of obtaining recognition and subsequent affiliation with respondent no.3-University. It is submitted that the Executive Council of respondent-University had disapproved the appointment of one Dr. Kantilal V. Gor as Principal of the petitioner-Institution and also the selection procedure undertaken by the petitioner. It is submitted that the appointment made by the petitioner was in blatant violation of the mandatory requirements of Ordinance 72 of the Act. Therefore, the present petition is devoid of any merits and deserves to be rejected.
21.1 It is further submitted that the appellate authority had heard the subsequent appeal only in view of the order dated 11.05.2012 passed by the learned Single Judge of this Court in S.C.A. No.6174/2012. By adopting the submissions advanced by learned Asst. Solicitor General Mr. Chamapaneri on this point, it was submitted by Mr. Panchal that the petitioner ought to have challenged the order passed by the learned Single Judge in S.C.A. No.6174/2012 instead of filing appeal before the appellate authority. Having filed the appeal, it is now not open to the petitioner to raise the issue of jurisdiction, when the final order is against it.
21.2 It is further submitted on behalf of respondent no.3-University that the Executive Committee of respondent no.3-University did not accord sanction to the process undertaken by the petitioner-Institution for appointment of Principal in the Meeting held on 22.12.2011, which was communicated to the petitioner vide letter dated 21.01.2012 having Outward no.445. In spite of being aware of such decision, the petitioner-Institution made mis-representation before the appellate authority in the first proceedings before the appellate authority that the affiliating University has accorded sanction to the appointment of Principal made by the petitioner-Institution, which, ultimately, led to the passing of the order dated 20.30.2012. Thus, the petitioner-Institution had suppressed material facts before the authority concerned and only on this ground, the petition deserves to be rejected.
21.3 It is further submitted on behalf of respondent no.3-University that the petitioner-Institution had earlier preferred S.C.A. No.10359/2011 before this Court challenging the order of withdrawal of recognition passed by NCTE. However, the said petition, along with a cognate matter being S.C.A. No.12311/2011 filed by the students, came to be dismissed by common order dated 07.10.2011. Against the said order, appeal was preferred before the Apex Court, which was withdrawn. It was, therefore, submitted that the present petition is devoid of any merits and deserves to be rejected.
22.0 In support of his submissions, reliance has been placed on the following decisions;
22.1 In the case of Chairman, Bhartia Education Society and another v. State of Himachal Pradesh and others, (2011) 4 SCC 527 and more particularly, on the observations made in para-24, which reads as under;
"24. 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 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."
22.2 In the case of Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM B.Ed. College v. National Council for Teachers' Education and Others, (2012) 2 SCC 16 and more particularly, on the observations made in para - 13, which reads as under;
"13. It is difficult to appreciate how the Institution could have reported compliance with the requirements of the Regulations and complete removal of the deficiencies after the order passed by the High Court when the Institution had neither the land standing in its name nor the building constructed in which it could conduct the training programme. The fact that the Institution was being run in a building which was shared by two other colleges was itself sufficient to justify withdrawal of the recognition granted in its favour. It was also noted by the inspecting team that four lecturers employed by the appellant did not have the requisite M.Ed qualification. Suffice it to say that the Institution was lacking in essential infrastructural facilities which clearly justified withdrawal of the recognition earlier granted to it."
22.3 Reliance has also been placed on an unreported decision of the Division Bench of this Court rendered in Special Civil Application No.3205/2009 and group matters decided on 14.05.2010.
23. Considering the submissions advanced on behalf of the respective parties, it would not be wrong to brand this as a peculiar case for the reason that the petitioner-Institution is trying to seek restoration of its affiliation by projecting a black cow as a white one and when it became unsuccessful in its act and the veil was lifted, it took shelter of the judicial process and now, shockingly, is finding fault with the judicial process, after having enjoyed the fruits, at an earlier point of time.
24. It all began when the appellate authority withdrew the 'recognition' of the petitioner-Institution on the ground of non-appointment of Principal on 25.07.2011. The said order was unsuccessfully challenged by the petitioner-Institution before the Division Bench of this Court and thereafter, before the Apex Court by way of SLP. However, the SLP was withdrawn in order to avail the remedy of filing an appeal u/s.18 of the NCTE Act.
25. Subsequently, the petitioner preferred an appeal before the appellate authority. The said appeal was disposed of by order dated 20.03.2012 whereby, 'recognition' was granted to the petitioner-Institution mainly on the basis of the statement made on behalf of the petitioner-Institution that it has appointed one Dr. Kantilal V. Gor to the Post of Principal on 11.10.2011 and that the affiliating University, respondent no.3, has approved the said appointment.
26. However, subsequently, the very statement, relying on which the appellate authority had granted 'recognition' to the petitioner-Institution, was found to be inaccurate. In fact, it would not be wrong to say that the petitioner had 'obtained' the order in a fraudulent manner. The relevant portion of the order dated 20.03.2012 passed by the appellate authority where, the statement made on behalf of the petitioner-Institution has been recorded, is reproduced hereunder for ready reference;
"......And whereas Shri Bharat Patel. N, Trustee and Shri Nilesh Patel. N, Trustee. The College of Shree Swaminarayan B.Ed. College, Mehsana, Gujarat presented the case of the appellant Institution on 16.01.2012. In the appeal and during personal presentation it was submitted that the appellant, after following the due procedure, appointed Dr. Anilsinh Chauhan as Principal. Dr. Anilsinh Chauhan was duly qualified for appointment as Principal but, his appointment was not approved by the University, hence, the same was not communicated to the WRC. Thereafter, the appellant appointed another Principal - Dr. Kantilal V. Gor, on 11.10.2011, having qualification of M.A., M.Ed., Ph.D as well as 18 years teaching experience as a Lecturer in B.Ed. College. Thus, the appellant now has a duly qualified Principal as per NCTE norms. The appellant again appeared on 01.03.2012 and stated that the affiliating University approved Dr. Kantilal V. Gor for the post of Principal...."
27. It is clear from the above order that it was presented before the appellate authority on 01.03.2012, in no uncertain terms, that the respondent-University has approved the appointment of Dr. Kantilal V. Gor for the post of Principal of the petitioner-Institution.
28. When a query was put to the petitioner by the Court to show the proof regarding 'approval' granted by the affiliating University, no satisfactory reply was received. In fact, the reply was in the negative. The affiliating University has made a categorical averment in its Affidavit-in-reply that it has refused to accord sanction to the appointment made by the petitioner-Institution since the same was in blatant violation of Ordinance 72(ii)(3) and 72(ii)(6) of the University Act and that said decision has also been conveyed to the petitioner-Institution vide communication dated 21.01.2012 having Outward No.445.
28.1 In the Agenda of the Meeting of the Executive Committee of the University, the issue regarding approval of Dr. Kantilal V. Gor as Principal of the petitioner-Institution formed a part vide Resolution No.43. In the Meeting of the Executive Committee held on 22.12.2011, a decision was taken to reject the appointment of Dr. Kantilal V. Gor for the Post of Principal of the petitioner-Institution.
28.2 It is difficult to believe that the decision of the University regarding non-approval of the candidature of Dr. Kantilal V. Gor for the Post of Principal was not communicated to the petitioner-Institution, particularly, when the petitioner had addressed a letter to the University that if no reply regarding 'approval' was received within the specific period, then it would be deemed that 'approval' is granted. When a Resolution having statutory force is passed and necessary decision is taken by a statutory body, then it is impracticable that such decision would not be communicated to the concerned. Therefore, it has to be said that definite mis-representation and fraud was committed by the petitioner before the appellate authority during the course of hearing of the appeal on 01.03.2012 and on the basis of such mis-representation and fraud, the recognition was 'obtained' instead of being 'granted'.
29. Considering the controversy regarding issuance or non-issuance of the decision regarding non-approval of the appointment of Dr. Kantilal V. Gor for the Post of Principal of the petitioner-Institution, the learned Single Judge of this Court, by interim order dated 11.05.2012 passed in S.C.A. No.6174/2012, directed the appellate authority to hear the petitioner and the respondent-University and to pass appropriate orders, after considering the relevant documents which may be placed on record of the case by the respective parties. The petitioner filed appeal before the appellate authority in pursuance of the aforesaid interim order of this Court.
30. It is pertinent to note that the above interim order dated 11.05.2012 of this Court was neither challenged by the petitioner-Institution nor by any of the respondents and therefore, the said order has attained finality. In fact, by filing the appeal, in pursuance of the above order, the petitioner has acted in complete acquiescence of the interim order and the rest is history. Otherwise, the order 'obtained' by making mis-representation would have been quashed. Now, having availed the second chance of filing an appeal before the appellate authority, it is not appropriate on the part of the petitioner-Institution to raise such contention.
31. Statutorily, there is no provision of filing a second appeal under the NCTE Act. In the present case, one of the contentions raised on behalf of the petitioner is that the impugned order dated 28.05.2012 is without jurisdiction since the appellate authority does not have the power to review or recall its own order. It is true that under the NCTE Act, there is no provision of review or recall of an order passed by the appellate authority in an appeal filed u/s.18 of the said Act. However, as stated herein above, this is a peculiar case where the petitioner is trying to take advantage of the best of both the worlds in the manner that in pursuance of the interim order passed by the learned Single Judge of this Court in S.C.A. No.6174/2012, the petitioner filed an appeal before the appellate authority under the NCTE Act. If, the petitioner was really aggrieved by the said interim order of the learned Single Judge, then it could have challenged the same. However, instead of doing so, the petitioner accepted the interim order and filed an appeal before the appellate authority and now, when the appellate authority has dismissed the appeal, the petitioner-Institution has challenged the jurisdiction of the appellate authority to pass the impugned order. When the petitioner, by adopting the interim order dated 11.05.2012 passed in S.C.A. No.6174/2012, had preferred an appeal before the appellate authority, which was, admittedly, second in the series of proceedings, in spite of the fact that his earlier appeal was rejected by order dated 20.03.2012, it does not now lie in the mouth of the petitioner to question the jurisdiction of the appellate authority to entertain such appeal. By filing the appeal, the petitioner has completely acquiesced with the interim order dated 11.05.2012 passed in S.C.A. No.6174/2012.
32. From the facts that stand today, one thing is abundantly clear that the petitioner had made a fraudulent statement before the appellate authority that the affiliating University has approved the appointment of Dr. Kantilal V. Gor for the Post of Principal and on the basis of the said statement, the appellate authority reversed the order passed by WRC and restored the recognition of the petitioner-Institution. When the said statement was made before the appellate authority, the approval sought by the petitioner regarding appointment of Dr. Kantilal V. Gor for the Post of Principal was already rejected by the affiliating University in its Executive Committee Meeting held on 22.12.2011.
33.0 Another relevant aspect is that the recruitment procedure undertaken by the petitioner-Institution for appointment of Principal is contrary to the Ordinance of University Act. Ordinance 72(ii)(3) provides that a Margin of atleast fourteen days from the date of publication of the advertisement in news-papers is required to be kept for receiving applications. In this case, the advertisement for conducting Open Interview for the Post of Principal was published in the news-papers on 03.10.2011. Instead of holding the interviews after the statutory time period of atleast fourteen days, i.e. on or after 18.10.2011, the Interviews were held on 10.10.2011, i.e. within a period of seven days. Therefore, admittedly, there is a margin of only seven days between the date of advertisement and the date of Interview, which is in clear contravention of Ordinance 72(ii)(3) of the Ordinance of University Act.
33.1 When a statutory time limit has been prescribed for a particular process, then it is deemed to be mandatory in nature and not directory or procedural. By making provision for "atleast fourteen days"
in the Ordinance, the legislators intended to provide a breathing period of such number of days between the date of advertisement and the date of Interview for the purpose of processing the applications. If the time limit is considered as directory or mere procedural, then the very purpose of framing the Ordinance would be frustrated and it would led to anarchy.
33.2 In my considered opinion, the time limit provided in the Ordinance cannot be merely brushed aside or ignored as being directory or procedural. The prescribed time limit of "atleast fourteen days" has to be strictly followed during the recruitment process and in case of a breach thereof, then the entire recruitment process would stand vitiated. Even if we ignore the aspect of fraudulent statement made by the petitioner in the appeal proceedings, the fact remains that Interview for the Post of Principal was held in clear contravention of Ordinance 72(ii)(3) and therefore, the recruitment process would stand vitiated and the appointment cannot be termed as 'legal'.
34. Further, Ordinance 72(ii)(6) provides that Open Interview could be conducted only with the prior permission of the Vice-Chancellor of the affiliating University. In the present case, the petitioner has not been able to show from the record that prior permission of the Vice-Chancellor of the affiliating University was taken before conducting the Open Interview. Therefore, on this count also, the recruitment process undertaken by the petitioner-Institution stands vitiated.
35. Serious allegations have been made by the parties against each other in the present proceedings. However, this Court does not find it necessary to examine the veracity of the allegations made in respect of the Minutes of Meeting held on 10.10.2011 wherein, the signatures of one of the Members is alleged to have been manipulated or forged since the same does not have much bearing on the facts of the present case.
36. Before parting, it is important to note that the petitioner has neither challenged the action of the University refusing to restore affiliation of the petitioner-Institution nor has challenged the issue of non-approval of appointment of Dr. Kantilal V. Gor for the Post of Principal. What is challenged is the order dated 28.05.2012 passed by the appellate authority (at Annexure-A to the petition) and to issue appropriate directions to the University to allot students for the Academic Session 2012 - 2013. There is no dispute regarding the qualification and experience of the candidate proposed to be appointed on the Post of Principal. What is disputed is the procedure adopted during such recruitment. When the recruitment process itself is found to be vitiated, then the appointment cannot be held to be valid and therefore, the University has rightly refused to accord approval to the appointment of Dr. Kantilal V. Gor for the Post of Principal.
37. The respondent-University is a statutory body governed by the University Act. If there is any irregularity in admissions or violation of the eligibility criteria so prescribed or any irregularity with reference to any of the matters regulated and governed by the University, then the University is empowered to cancel the affiliation of an Institution irrespective of the fact that the Institution continues to enjoy the recognition of NCTE. Sub-section 6 of Section 14 cannot be interpreted in a manner so as to make the process of affiliation a consequential procedure upon recognition. The University has discretion to examine whether a particular Institution deserves affiliation or not, independent of the recognition by the NCTE.
38. On the facts of the case, I find that there was cogent ground for the University to refuse the petitioner-Institution restoration of affiliation. The petitioner-Institution was found in clear breach of the mandatory provisions of Ordinance 72(ii)(3) & 72(ii)(6) of the University Ordinance while undertaking the recruitment process and therefore, the University was justified in refusing to restore the affiliation and in refusing to accord approval to the appointment of the person on the Post of Principal. In view of the above, I am of the opinion that the appellate authority has not committed any illegality or impropriety while passing the impugned order warranting interference of this Court in this petition and the University was also justified in refusing to allot students during the Academic Session.
39. The decisions relied upon by learned counsel Mr. Pahwa shall not apply to the case on hand inasmuch as, in this case, there are serious lapses in the recruitment procedure undertaken by the petitioner-Institution, which are in clear contravention of the University Ordinance and also the fact that the petitioner-Institution is found guilty of serious mis-representation in proceedings before the appellate authority.
40. For the foregoing reasons, the petition is dismissed with costs quantified at Rs.30,000/-, out of which Rs.15,000/- to be divided amongst respondents no.1 & 2 and the remaining Rs.15,000/- in favour of respondent-University.
[K.
S. JHAVERI, J.] Pravin/* Top