Madras High Court
The University Of Madras vs Loordhu Ammal Educational Trust on 20 April, 2005
Bench: Markandey Katju, F.M.Ibrahim Kalifulla
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 20/04/2005
Coram
THE HON'BLE MR. MARKANDEY KATJU, THE CHIEF JUSTICE
and
THE HON'BLE MR. JUSTICE F.M.IBRAHIM KALIFULLA
Writ Appeal No.838 of 2005
The University of Madras
rep. by its Registrar,
Rajaji Salai,
Chepauk,
Chennai-5. .. Appellant
-Vs-
1. Loordhu Ammal Educational Trust
rep. by its Secretary,
No.1-A, Chari Street,
North Usman Road,
T. Nagar,
Chennai-600 017.
2. The Director of Collegiate Education,
College Road,
Chennai-6. .. Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the
order passed in W.A.M.P.No.13249 of 2005 in W.P.No.12124 of 2005 dated
19.4.2005.
!For appellant : Mr. AL. Somayaji
Senior Counsel
for Mr. N. Rajan
^For respondent 1: Mr. R. Krishnamoorthy
Senior Counsel
for Mr. V.Ayyadurai
For respondent 2: Mr. V.Raghupathi
Govt. Pleader
:JUDGMENT
(Judgment of the Court was delivered by The Honourable The Chief Justice) This writ appeal has been filed against the impugned order of the learned single Judge dated 19.4.2005 passed in W.P.M.P.No.13249 of 2005 in W.P.No.12124 of 2005.
2. Heard the learned counsel for the parties.
3. With the consent of parties, we are disposing off the writ appeal finally.
4. The facts of the case are that respondent no.1 (writ petitioner) is a trust which has set up an Institution known as "Our Lady College of Education" at Chennai for imparting B.Ed course of education. The writ petitioner has alleged that the National Council for Technical Education (in short 'NCTE') having been satisfied with the requirements and other facilities and amenities as provided by the petitioner, has granted approval of the petitioner's institution by order dated 2 .11.2004 for a sanctioned strength of 100 seats for the academic year 2004-2005 under the NCTE Act. The duration of B.Ed. course is one year. The writ petitioner having got approval from the NCTE applied for affiliation with the Madras University (appellant herein) on 03.11.2 004. Since it is alleged that the Madras University did not take action on this application, the writ petitioner filed W.P.No.32514 of 200 4 in this Court seeking a Mandamus to direct the University to grant affiliation. On this petition, this Court by interim order dated 9.1 1.2004 directed : -
" Without losing further time, the respondent is directed to inspect and report the same to the Court within a period of two weeks from to-day. Notice"
The aforesaid writ petition is still pending.
5. It is alleged that instead of implementing the aforesaid interim order dated 9.11.2004, the University issued an order dated 22.11.200 4 directing the writ petitioner Institution to obtain No Objection Certificate from the Government of Tamil Nadu, so as to enable the University to take further action in the matter of granting affiliation, and it further directed not to conduct classes without Provisional affiliation. The petitioner challenged the said order dated 22.11.2004 in W.P.No. 34823 of 2004, and the same was allowed on 6.12.2004.
6. The learned single Judge, who allowed the aforesaid writ petition, observed in his judgment that the impugned order of the University insisting prior permission of the State Government for grant of affiliation cannot be sustained and he set aside the same. The learned single Judge further directed the respondent therein to consider the application of the petitioner for grant of affiliation for B.Ed. Degree Course for the academic year 2004-2005 without reference to the prior permission from the State Government, but of course subject to compliance of the conditions for grant of affiliation.
7. In the meantime, the writ petitioner admitted students and conducted classes allegedly to fullfil the requisite number of attendance prescribed by the University. It is alleged that the students of the writ petitioner's institution have completed necessary training/ coaching classes and are fully equipped to appear for the examination scheduled to be held on 20.04.2005.
8. Thereafter, it is alleged in paragraph-7 of the writ petitioner' s affidavit that the institution of the petitioner was inspected by a Committee on 9.3.2005, but it is alleged that neither the copy of the report was furnished nor did the University seek any clarification from the petitioner till date. The request of the writ petitioner Institution to permit the student to sit for the examination to be held on 20.04.2005 was not considered. It is alleged that the University has granted affiliation to other Institutions, which were granted approval in November 2004, and permitted students of those institutions to sit for the examination scheduled to be held on 20.04.2005.
9. A counter affidavit has been filed in the writ petition by the University, and we have perused the same.
10. In paragraph-5 of the counter affidavit it is alleged that against the judgment of the learned single Judge dated 06.12.2004, the University filed Writ Appeal No.150/05 before this Court, which was dismissed by order dated 23.2.2005. The Division Bench agreed with the learned single Judge and directed the University to pass orders on the application of the Institution for affiliation within two weeks from the date of receipt of the copy of the judgment. Against the aforesaid Division Bench decision dated 23.2.2005, the University had filed SLP in the Supreme Court, which is said to be pending.
11.In Paragraph-6 of the counter affidavit of the University, it is alleged: -
" I submit that the University of Madras sent an inspection committee on 9.3.2005 to inspect the institution of the petitioner, on obedience of the order of this Hon'ble Court dated 23.2.2005. The inspection Committee has submitted its report on 10.3.2005 with the following remarks among others.
" Faculty and Staff: The College has faculty strength of 8 teachers including the Principal. However excepting one lecturer, the other teachers are yet to pass in the NET/SLET examination..."
The above report with supporting documents were placed before the affiliation committee on 14.3.2005, which considered the same and took note of the deficiencies, pointed out by the inspection committee. One of the deficiencies taken note of the affiliation committee, apart from other deficiencies, is as follows: -
"The institution has not submitted the layout in the proper from such as village map/combined sketch. The Institution claims to have land in several survey nos. and it could not be ascertained for want of combined sketch, whether such piece of land or adjacent lands from a single contiguous piece of land."
However, the University of Madras has sent a letter dated 12.3.2005 to the petitioner informing that their application was under process and orders will be passed in due course."
12. In paragraphs 9 & 10 of the counter affidavit, it is alleged: -
" I state that the NCTE constituted under the NCTE Act is fully aware of the facts that the State Government's permission to establish an institution is required which would be evident from para 4 of the said order dated 7.9.2004. Even under it's Regulations No.VI of the NCTE (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course of training) Regulations, 2002, the requirement of obtaining the No Objection Certificate (NOC) for starting a new course or training is provided. The Hon'ble Supreme Court of India has held in AIR 2003 SC 1533 that such a regulation is valid and in case the State Government rejects the application for NOC arbitrarily by taking into consideration factors which are not relevant, then it is open to the aggrieved person to challenge the same in accordance with law. The Supreme Court does not hold the State Government has no role to play in the establishment of a college.
I submit that the UGC Regulation 2000 prescribes that all lecturers appointed in a college should possess a certificate of UGC-NET or a similar test, accredited by the UGC, called SLET, apart from other educational qualifications. Even if the University of Madras follows the directions of this Hon'ble Court, issued in W.P.No.34823/2004, without waiting for the order that may be passed in the S.L.P the petitioner Trust is not entitled to affiliation because of the deficiencies as pointed out by the affiliation committee."
13. By the impugned interim order in the writ petition, the learned single Judge has directed that the students of the petitioner's institution shall be permitted to appear for the ensuing examination and the results shall be published by the respondents subject to further orders in the main writ petition. It was further held by the learned single Judge that the students appearance in the examination as well as the publication of the results will depend upon the ultimate decision in the writ petition, and the students cannot make any claim for grant of degree certificate, if ultimately the petitioner's institution is not granted affiliation.
14. In our opinion, respondent no.1(writ petitioner) was not justified in admitting students to B.Ed. Course, since affiliation has not been granted to it by the Madras University. Admittedly, the degree ( B.Ed.), which is sought to be conferred on the students, will be that of the Madras University. Hence until and unless the Madras University grants affiliation to the writ petitioner institution, it had no right at all to admit students which would lead to conferring a degree of Madras University. If admissions are granted, even though the college has not got affiliation, then if ultimately the affiliation is refused, the students will be left in the lurch having wasted lot of time and money.
15. We cannot accept the submission of the learned counsel for the first respondent that merely because recognition to the college has been granted by NCTE, affiliation must necessarily be granted by the Madras University. Since the degree which would be granted will be that of Madras University obviously the Madras University, before granting affiliation, would like to be satisfied that the college seeking affiliation has proper facilities, competent and qualified teaching staff, etc.
16. Every University has got certain reputation, which it naturally wants to be protected and upheld. It is for this reason that before grant of affiliation, Universities makes inspection, enquiry, etc. about the college seeking affiliation.
17. Every University must maintain high educational standards. We have seen what happened in the State of Jharkhand where large number of so called universities were set up, which ultimately led to interference by the Supreme Court, as they were hardly Universities worth the name. It must be understood that a University is a centre of higher learning, and it must maintain very high standards. A degree from a University must reflect the knowledge which that degree holder possess. If for instance, a person is granted M.Sc. Degree in Physics from a University, but he does not even have the knowledge of a high school student in physics, then that degree will obviously be farcical. It is well known that in our country in many States such farcical degrees have been granted and this obviously adversely affects the educational standards in the country. If our country is to progress, high standards of education must be maintained, and this requires academic rigour. Education is a sacred matter, and strict discipline and high standards must be maintained in this connection.
18. We are of the opinion that any college or institution admitting students for a degree in a University even before the University accords it affiliation is really committing fraud on those students and is cheating those students who are given admission, because those students can be left in the lurch if ultimately affiliation is not granted.
19. In our opinion, no college can claim affiliation as of right. It is only for the University in its discretion to grant affiliation or not. This Court cannot arrogate to itself the powers to grant affiliation, nor can it direct the University to grant affiliation. An act which the statutory authority has to do cannot be done by this Court, and this Court must exercise restraint in this connection.
20. In N.A.Thangavelu Vs. The State Transport Appellate Tribunal, Chennai, (2005) 1 M.L.J.430 this Court held that the Court cannot take over the functions of the executive.
21. In G.Veerappa Pillai Vs. Raman and Raman Limited, (1952) 1 M.L. J. 806:AIR 1952 SC 192, the Supreme Court observed that the High Court cannot direct the Regional Transport Authority to grant permits, as the discretion to grant permits or not was entirely with the Regional Transport Authority. A similar view was taken in Union of India Vs. S.B.Vohra, (2004) 2 SCC 150 (vide paragraph - 33)and State of U.P. Vs. Section Officer Brotherhood, (2004) 8 SCC 286.
22. In Regional Officer, CBSE v. KU. Sheena Peethambaran ((2003) 7 SCC 719), the Supreme Court observed vide paragraphs 6 and 7:
" 6. This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases it is ultimately pleaded that since the course was over or the result had been declared, the matter deserves to be considered sympathetically. It results in very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions. A few decisions on the point may be perused. In C.B.S.C. v. P. Sunil Kumar((1998) 5 SCC 377) the institutions whose students were permitted to undertake the examination of the Central Board of Secondary Education were not affiliated to the Board, hence the students were not entitled to appear in the examination. They were, however, allowed to appear in the examination under the interim orders granted by the Court in contravention of the rules and regulations of the Board. The High Court considering the matter sympathetically had not interfered, but this Court observed thus: (SCC p.381, para 4) " But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students."
The order of the High Court was set aside. Another decision reported in Guru Nanak Dev University v. Parminder Kr. Bansal ((1993) 4 SCC 4 01), a three-Judge Bench decision, was relied upon in the case of Sunil Kumar( (1998) 5 SCC 377). A passage from the abovenoted decision was also quoted therein which reads as follows: (SCC p.403, para 7) " We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious complications might ensue from the interim order itself. In the present case, the High Court was apparently moved by sympathy for the candidates than by an accurate assessment of even the prima facie legal position. Such orders cannot be allowed to stand. The courts should not embarrass academic authorities by themselves taking over their functions."
Yet another decision referred to is reported in A.P. Christians Medical Educational Society v. Govt. of A.P.( (1986) 2 SCC 667), again a three-Judge Bench decision. It was observed in this case: (SCC p. 678 , para 10) " We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws."
The above-referred matter relates to the admission and examination of MBBS courses.
7. In the background of the law as laid down by this Court, we find that in the case in hand the fact situation was even worse as compared to the decision cited above. The student, namely, Respondent 1 had failed to clear her Class IX examination which was a necessary requirement as provided under the bye-laws of the Board so as to be entitled to appear in Class X examination conducted by the Board. Despite notice, no one has put in appearance on behalf of Respondents 1 and 2 to indicate any fact or circumstance so as to take any different view. Condoning the lapses or overlooking the legal requirements in consideration of mere sympathy factor does not solve the problem, rather breeds more violations in the hope of being condoned. It disturbs the discipline of the system and ultimately, adversely affects the academic standards."
23. No doubt in the present case the admission of the students in the writ petitioner's college was not granted by an interim order of this Court, but by the college itself. However, in our opinion, the ratio of the principle laid down in the aforesaid decisions of the Supreme Court will also apply to the facts of cases (like the present one) where admissions were granted by educational institutions even though they have not got affiliation with the University.
24. Learned counsel for the first respondent submitted that the order of this Court dated 6.12.2004 in W.P.No. 34823 of 2004 and the Division Bench order dated 23.02.2005 in W.A.No.155 of 2005 etc. have not been complied with. In our opinion, if that is so, the remedy of the first respondent was to file a contempt petition, but it can certainly not seek a direction that the students who were granted admissions by it should be allowed to appear in the examination. We know that our judgment may cause hardship to the students who were granted admission by the first respondent. But, as mentioned by the Supreme Court in the aforesaid decisions quoted above, such sympathetic considerations are wholly misplaced and do not serve any one. High Educational standards must be maintained even if it results to sufferings by some students.
25. In Srinivasa Enterprises v. Union of India, (1980) 4 SCC 507 ( vide para-13), the Supreme Court observed: -
" But when a general evil is sought to be suppressed some martyrs may have to suffer, for the legislature cannot easily make meticulous exceptions and has to proceed on broad categorisations, not singular individualisations."
26. Similarly, in Tamil Nadu Education Department Ministerial and General Subordinate Services Association etc., v. State of Tamil Nadu and others, AIR 1980 SC 379 (vide paragraph-17), the Supreme Court observed: -
" Sri Govind Swaminathan drove home the point that in some cases even a few hundred 'A' wing members have been passed over by some one in the 'B' wing far junior to them. Once the principle is found to be rational the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate the order or the policy. Every cause claims a martyr and however unhappy we be to see the seniors of yesterday becoming the juniors of today, this is an area where absent arbitrariness and irrationality, the Court has to adopt a hands-off policy."
27. In C.B.S.C v. P.Sunil Kumar, (1998) 5 SCC 377, the Supreme Court observed: -
" But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students."
28. In view of the above, we are of the opinion that the impugned order cannot be sustained and it is hereby set aside. The writ appeal is allowed. No costs. W.A.M.P.No.1586 of 2005 is closed.
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To
1. The Registrar, University of Madras Rajaji Salai, Chepauk, Chennai-5.
2. The Director of Collegiate Education, College Road, Chennai-6.