1. In this petition under Article 226 of Constitution of India the petitioner has prayed for below mentioned relief/s:-
"9 (A)........
(B)(1) The Hon'ble Court be pleased to issue a writ of mandamus or in the nature of mandamus or in the nature of certiorari or any other writ, order or direction to quash and set aside the order dated 18.4.2012 passed by the respondent No.2 and direct the respondent No.2 to continue the recognition in favour of the petitioner since the petitioner has cured the defect(s) as contained in the withdrawal order dated 01.10.2011 passed by the respondent No.1, in the interest of justice and equity.
(B)(2) The Hon'ble Court be pleased to direct the respondent university to show the name of the petitioner Trust / College in list of the affiliated institute / college with the respondent university for the year 2012-2013.
(B)(3) The Hon'ble Court may be pleased to direct the respondent No.3 Saurashtra University to allot students to the petitioner Trust / College for B.Ed. Course for current academic year 2012-2013.
(C).................
(C)(1) Your Lordships may be pleased to suspend the further implementation, further operation, further enforcement and further execution of the order dated 18.4.2012.
(C)(2) The Hon'ble Court may be pleased to direct the university to show the name of the petitioner Trust / College in list of the affiliated colleges with the respondent university for the year 2012-2013.
(C)(3) The Hon'ble Court may be pleased to direct the respondent No.3 Saurashtra University to allot students to the petitioner Trust / College for B.Ed. Course for current academic year 2012-2013.
(D).............."
2. After hearing the learned Senior Counsel with Mr. Jasani, learned advocate for petitioner office was directed vide order dated 30.4.2012, to issue notice making it returnable on 3.5.2012.
3. Any reply contesting the petition has not been filed by any respondent.
4. The learned Senior Counsel for petitioner has vehemently and repeatedly claimed that the admission process is to commence within short time and if the relief, at least the interim relief as prayed for paragraphs 9(C)(2) and (C)(3) is not granted then the petitioner institute will suffer loss of one academic year for want of students.
5. Mr. Thacker, learned advocate has appeared for the respondent university and opposed the petitioner's request, though any reply is not filed. Likewise, Mr. Champaneri, learned Asst. Solicitor General has appeared for respondent Nos.1 and 2 and opposed the petitioner's request though reply is not filed.
6. It has emerged, prima facie, from the record and the submissions by learned Senior Counsel for the petitioner that by order dated 01.10.2011 the respondent No.1 withdrew the recognition of petitioner's college for the reason mentioned in the order dated 01.10.2011.
7. Being aggrieved by the said order the petitioner carried the matter before Appellate Authority i.e. respondent No.2.
8. After hearing the petitioner and considering the record the Appellate Authority came to the conclusion that there was adequate justification in remanding the case to the respondent No.1 for reexamination in light of the observations made in its order. Having reached such conclusion the respondent No.2 passed order dated 18.4.2012 with below mentioned observations:-
"AND WHEREAS in view of the above, the Council concluded that the case deserves to be re-examined by the WRC in the light of Council's observations and for taking decision thereafter.
AND WHEREAS after perusal of documents, memorandum of appeal, affidavit, VT report and after considering oral arguments advanced during the hearing, the Council concluded that there was adequate justification in remanding the case to the WRC for re-examination of the matter in the light of Council's observations and for taking further decision thereafter.
NOW THEREFORE, the Council hereby remands back the case of Yadav B.Ed college, Junagadh, Gujarat to the WRC, NCTE, for necessary action as indicated above."
9. From the material on record it appears that after the order dated 18.4.2012 by the respondent No.2 the respondent No.1 has not taken any action and / or has not passed any other order, though almost 2 and ½ months have passed since the respondent No.2 remanded the matter to respondent No.1 vide its order dated 18.4.2012 .
In this background, reliance is placed on below mentioned observations by the Apex Court in case of Union or India and other vs. Umosh Dhaimode (1997 [10] SCC 223) "2.
As the order under appeal itself notes, the aforesaid provision vested the appellate authority with powers to pass such order as it deemed fit confirming, modifying or annulling the decision appealed against. An order of remand necessarily annuls the decision which is under appeal before the appellate authority. The appellate authority is also invested with the power to pass such order as it deems fit. Both these portions of the aforesaid provision, read together, necessarily imply that the appellate authority has the power to set aside the decision which is under appeal before it and to remand the matter to the authority below for fresh decision."
Petitioner has also relied on the order passed by the Division Bench of this Court in the case between Commissioner of Central Excise vs. Medico Labs (2004 (173) ELT 117) wherein the division bench followed the same observations made by the Apex Court in the above mentioned decision. Reliance is also placed by the petitioner on the order passed by Division bench on 4.5.2010 in case of Shri Morvi Sarvajanik Kelvani Mandal Sanchalit MSKM B.Ed. vs. National Council for Teacher's Education Western Region.
10. Learned Asst. Solicitor General has submitted that the respondent No.2 has merely remanded the matter and that therefore the petitioner may not be allowed and relief as prayed for.
However any clarification as to whether the respondent No.1 has passed any order during the past 2 and ½ months after the Appellate Authority remanded the case is not made.
11. Learned advocate appearing for respondent University has submitted that it is only a recommending body and unless the respondent university has valid recognition from respondent No.2 the university cannot do any thing. He also relied on the decision by the Apex Court in Adarsh Shiksha Mahavidyalaya vs. Subhash Rahangdale (2012 [2] SCC
425).
12. Having considered the above mentioned aspects, particularly the order dated 18.04.2012 passed by the respondent No.2 and the fact that despite 2 and ½ months have passed since the said order of Appellate Authority respondent No.1 has not passed any order it appears that appropriate directions deserve to be passed. Therefore, below mentioned observations and order is made.
In view of the observations by the Apex Court in case of Union of India (supra) the original order dated 01.10.2011 passed by respondent No.1 can be said to have been impliedly set aside. This would impliedly and temporarily i.e. until the respondent No.1 takes necessary action and passes any other order pursuant to Appellate Authority's order dated 18.4.2012, bring in picture the order dated 30.10.2006 whereby the petitioner was granted recognition. However instead of completely relying on the said inference and situation it appears that below mentioned directions would balance the equity and fact situation as well as legal position.
(1) The respondent No.1 should pass, within further period of 5 days from service of present order, a fresh order in compliance of the direction by Appellate Authority vide order dated 18.4.2012.
(2) If such order is not passed then the original order of recognition, i.e. order dated 30.10.2006, will be deemed to have come in operation in view of the order dated 18.4.2012 by Appellate Authority until the respondent No.1 passes appropriate order.
Consequently, the respondent university will, unless the respondent No.1 passes order against the petitioner, tentatively consider the case of petitioner college for provisional recognition and forward appropriate recommendation to the State Government after completion of the above mentioned time limit.
(4) The respondent university, may simultaneously ask the petitioner to pay requisite fee, if already not paid, for the purpose of affiliation.
(5) The State government shall, within 5 days from the date on which recommendation is received, will consider the case of petitioner so as to grant, provisional affiliation and to issue appropriate instructions / directions for tentatively including name of petitioner in the list of affiliated colleges. However the inclusion will be accompanied by a remark that the inclusion is tentative and subject to the result in the petition or the order by respondent No.1 and / or respondent No.2.
(6) If the process of allotment and admission of students commences before the next date of hearing then, in the event the respondent No.1 fails to pass order within above mentioned time limit and consequently the name of the petitioner college is tentatively included in the list of affiliated colleges, the competent authority will consider the case for allotment of students to the petitioner college but with clarification that the affiliation and allotment are tentative and are subject to the order that may be passed by the Court after considering the orders by respondent No.1 and respondent No.2.
(7) The aforesaid directions will not apply in the event respondent No.1 passes order against present petitioner. The aforesaid directions will also cease to apply immediately after the respondent No.1 passes the order and if such order is against the petitioner. If the order passed by the respondent No.1 is against the petitioner then the provisional affiliation granted on account of this order and / or the tentative allotment and admission of students also will stand cancelled. If the respondent No.1, in compliance of the order dated 18.4.2012 passes order against the petitioner then it will be open to the petitioner to rectify the defects and if according to it such order suffers from any error then it would be open to the petitioner to approach the Appellate Authority i.e. respondent No.2 against such fresh order of respondent No.1. However, the benefit of tentative affiliation and / or tentative allotment of students pursuant to this order will automatically come to an end after respondent No.1 passes the order in compliance of the appellate authority's order dated 18.4.2012 It is clarified that present arrangement is only interim arrangement and will be subject to subsequent orders that may be passed by the court after the order of respondent no.1 is placed on record. It is also clarified that present interim order is made only because the appellate authority has remanded the entire matter for fresh consideration to respondent No.1 and in view of such direction the order dated 01.10.2011 passed by respondent No.1 impliedly stands quashed which would revive the first and original order of recognition granted to the petitioner college.
S.
O. to 11.6.2012.
(K.M.THAKER,J.) Suresh* Top