Patna High Court - Orders
Lalit Narayan Mithila University vs National Council For Teacher Education on 22 December, 2020
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9421 of 2020
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1. Lalit Narayan Mithila University, Kameshwarnagar, Darbhanga 846004
(Bihar) through its Registrar.
2. Directorate of Distance Education Lalit Narayan Mithila University
Kameshwaranagar, Darbhanga, Plot No. 7195-99, 7202-06, 7218, Vill.- West
of Harahi Pokhar, P.o.- Lalbagh, Tahsil- Sadar, Town- Darbhanga, Distt.-
Darbhanga, Bihar 846004 (ERCAPP 1075) through its Director
... ... Petitioner/s
Versus
1. National Council For Teacher Education G-7, Sector-10, Dwarka, New
Delhi-110075 through its Chairperson
2. Eastern Regional Committee, National Council for Teacher Education, 15,
Neelkantha Nagar, Nayapalli, Bhubaneswar, Odisha, through its Regional
Director
3. The State Nodal Officer, CET-B.Ed.-2020, Lalit Narayan Mithila University,
Kameshwar Nagar, Darbhanga
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ajay Bihari Sinha, Advocate
For the NCTE : Mr. Sunil Kumar Singh, Advocate
For the Respondent No. 3: Mr. Md. Nadim Seraj, Advocate
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL ORDER
3 22-12-2020The matter has been taken up via video-conferencing due to circumstances prevailing on account of the COVID-19 pandemic.
2. Heard Mr. Ajay Bihari Sinha, learned counsel for the petitioners; Mr. Sunil Kumar Singh, learned counsel for the National Council for Teacher Education (hereinafter referred to as the 'NCTE').
3. Learned counsel for the petitioners seeks, and is granted, permission to implead the State Nodal Officer, CET- Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 2/15 B.Ed.-2020, Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga as respondent no. 3.
4. Mr. Md. Nadim Seraj, learned counsel accepts notice on behalf of newly-added respondent no. 3 and, accordingly, has also been heard.
5. Let necessary correction be made by learned counsel for the petitioners by filing fresh page of the cause title through e-mode, latest by tomorrow.
6. Learned counsel for the petitioners shall forward copy of the entire pleadings to learned counsel for respondent no. 3, latest by tomorrow. Let the name of Mr. Md. Nadim Seraj, learned counsel be printed in the cause list in the column of respondents.
7. The petitioners have moved the Court for following reliefs:
"(i) For quashing order no. ER-
274.14.21/ERCAPP1075/B.Ed./2019/61363 dated 22-08-2019 issued under signature of Respondent No. 2 whereby intake for B.Ed. Course has been reduced from 100 to 50 from the academic session2020-2021 for the reason Faculty list comprises 1+12 instead of 1+15 as per NCTE Regulation, 2014.
(ii) For quashing the Appellate order F. No. 89-414/E-139148/2019 Appeal/37th Mtg.- 2019/27th November, 2019 dated 23/12/2019 issued under signature of Shri Sanjay Awasthi, the learned Member Secretary, National Council for Teacher Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 3/15 Education whereby the Appeal filed by the petitioner against aforementioned order has been rejected and order constrained in F.No. ER- 274.14.21/ERCAPP1075/B.Ed/2019/61363 dated 22-08-2019 has been confirmed.
(iii) For quashing order contained in letter no. F. No. 89-118/E-158886/2020 Appeal/17th Mtg. 2020/94522 dated 20/10/2020 whereby it has been informed that NCTE do not provide for a review appeal opportunity, once the appeal is directed and appeal order issued.
(iv) For directing the respondents to reinstate intake for B.Ed. Course to 100 because the lacuna has already been removed and eligible Faculties have already been appointed and consolidated list of faculty members as has already been sent to respondents.
(v) For any other relief/reliefs for which the petitioners are found to be entitled in the facts and circumstances of the case."
8. The issue can be crystallized as the Court is only required to consider as to whether the petitioner no. 1, being a University created under an Act of the State Legislature, and running B.Ed. Course through its constituent unit (petitioner no.
2), which has been approved by the NCTE, is entitled to admit 100 students for the Session 2020-22 instead of only 50, as has been directed by the NCTE after they have reduced the intake limit due to certain deficiency pointed out, pertaining to the number of faculty.
9. Learned counsel for the petitioners submitted that Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 4/15 as per the list of faculties submitted by them of 1+12=13, the NCTE came up with the order dated 22.08.2019 by which the intake of the B.Ed. Course was reduced for the academic Session 2020-22 from 100 to 50 seats, on the ground that as per the NCTE Regulations, 2014 the requirement for 100 seats was of 1+15=16 faculties.
10. Learned counsel submitted that to remove such deficiency, the University recruited three more faculties and then filed an appeal under Section 18 of the National Council for Teacher Education Act, 1993 (hereinafter referred to as the 'Act') enclosing the list of 1+15=16 faculty members to the NCTE, but by order dated 23.12.2019 the appeal was rejected on the ground that the three teachers did not possess the eligibility for appointment as faculty members. Learned counsel submitted that the petitioners then went in for fresh recruitment, in which, after following the due procedure, three faculty members who were fulfilling the eligibility criteria as per the NCTE Regulations, 2014 and NCTE (Recognition Norms and Procedure) (Amendment) Regulations, 2017 dated 09.06.2017, were recruited.
11. Learned counsel submitted that the process of fresh recruitment was completed on 20.05.2020 and on Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 5/15 29.05.2020, again an appeal was filed against order dated 23.12.2019. It was further submitted that the appeal was heard on 01.09.2020 and rejected by order dated 20.10.2020, only on the ground that Section 18 of the Act did not provide for an opportunity of a 'review appeal' once the appeal is decided and appeal order issued. Learned counsel submitted that left with no other remedy, the petitioners have moved the Court in the present writ petition.
12. Thus, learned counsel submitted that having removed the deficiency in May, 2020 itself and the process of counselling still continuing and culminating only on 30th of this month, the situation would result in only 50 seats being filled and 50 seats remaining vacant, as in the absence of formal permission by the NCTE, the same cannot be filled. It was submitted that it is not a case where there has to be consideration for fresh or increased intake capacity, but rather a case where permission was already there for intake of 100 students and only due to there being less faculty as per the amended Regulations, the current situation had arisen; thus, once the said lacuna stood removed, it would be against the interest of all concerned and definitely also not in the larger public interest to permit 50 seats to remain vacant.
Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 6/15
13. Learned counsel for the NCTE submitted that as there exists no provision by which a 'review appeal' could be entertained, rightly, the same has been rejected on this ground.
14. At this juncture, to the specific query of the Court to learned counsel for the NCTE as to his stand with regard to the correctness of the contention of the petitioners that, prior to filing of their 'review appeal' in May, 2020, the deficiency earlier pointed out had been removed and fresh three names were forwarded of faculty members who fulfilled the eligibility criteria, learned counsel submitted that the same required verification, which exercise could not be done as the appeal was rejected on the short point of there being no provision for entertaining such 'review appeal', which was in the nature of a review.
15. In view of the order being passed, this Court need not express any opinion on the usage of the term 'review appeal' by the NCTE in its order dated 20.10.2020. The primary contention of the petitioners, now, is that there is no remedy available to them under them under the Act.
16.1. In this context, it is appropriate to refer to the Constitution Bench judgement in State of Uttar Pradesh v Mohammad Nooh, 1958 SCR 595, the relevant paragraph Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 7/15 reading:
'10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute, (Halsbury's Laws of England, 3rd Edn., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies...' (emphasis supplied) 16.2. The aforesaid paragraph from Mohammad Nooh (supra) has been approvingly referred to by the Hon'ble Supreme Court in Maharashtra Chess Association v Union of India, 2019 SCC OnLine SC 932 in the following words:
'24. The principle that the writ jurisdiction of a High Court can be exercised where no adequate alternative remedies exist can be traced even further back to the decision of the Constitution Bench of this Court in State of Uttar Pradesh v. Mohammad Nooh...' (emphasis supplied) Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 8/15
17. It is not required, in praesenti, to cite further authorities of the Hon'ble Supreme Court on this subject. Suffice it will to state the following settled principles of law:
(i) Powers under Article 226, being discretionary, may not be exercised if there exists an alternative efficacious remedy.
However, this is merely a self-imposed restraint.
(ii) In appropriate situations, the High Court in its writ jurisdiction can entertain writ petitions even if there exists an alternative efficacious remedy. There is no, nor can there be, an absolute bar to such exercise of power.
(iii) A fortiori, in the absence of an alternative efficacious remedy, or, where no remedy lies, recourse to writ jurisdiction of the High Court would always be available to an aggrieved party.
18. The present case falls in the category of 17(iii) mentioned hereinabove. Having considered the matter, the Court being conscious of its limitations in such matters, especially in view of the issue having been dealt with in detail over the years by the Hon'ble Supreme Court, the real challenge posed by the situation at hand, is of doing substantive justice in the peculiar facts and circumstances of the present case without disturbing or interfering with the time-schedule fixed by the Nodal Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 9/15 University, which incidentally happens to be Lalit Narayan Mithila University itself, which is petitioner no. 1 herein and which has been directed to strictly adhere to the time schedule by the order of the Hon'ble Supreme Court dated 02.09.2020 on Miscellaneous Applications (894 of 2020, 494 of 2020 and others) in Maa Vaishno Devi Mahila Mahavidyalaya vs. State of Uttar Pradesh & Ors. [Writ Petition (C) No. 276 of 2012], with consent and agreement of the parties, the following directions are issued:
(i) The last phase of State Spot Round Counselling (Physical), as per schedule, to be conducted from 26.12.2020 to 30.12.2020, shall be conducted by the Nodal University for 100 seats with regard to the petitioners instead of 50 seats previously being done.
(ii) For such purpose, by tomorrow itself the Nodal University shall notify with regard to petitioner no. 2 that there are 50 out of 100 seats which remain vacant to be filled and option shall be given to all students who have qualified the CET Examination 2020, for Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 10/15 taking part in counselling for admission on such seats and the same shall be carried out and completed by 30.12.2020, as per the time schedule notified by the Nodal University and which stands approved by the Hon'ble Supreme Court by its order dated 02.09.2020 (supra).
(iii) However, with regard to the students who are admitted on the remaining 50 seats in the petitioner no. 2 institution, a separate list shall be maintained and their admission shall be provisional without creating any equity in their favour and subject to the ultimate decision in the present writ application. They shall also give an undertaking to abide by such decision and if any student is not ready to give such undertaking, her/his candidature shall not be considered.
(iv) The NCTE shall get the list of faculty members submitted by the petitioner no. 2 institution verified, specifically with Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 11/15 regard to number of faculties and whether they fulfill the present requisite qualification/ eligibility criteria for being appointed on such posts.
(v) To facilitate the matter, the petitioner no. 2 shall forward a fully legible list of its faculty members, which was submitted while filing the appeal on 29.05.2020, to the Eastern Regional Committee of NCTE, Bhubaneshwar, within one week from today.
19. After completion of the aforesaid exercise, affidavit shall be filed, both on behalf of the petitioners as well as the NCTE, with regard to the exercise as indicated above.
20. The Court would pause here to indicate that this order has been passed as the Court has been persuaded to consider the aspect that if only due to deficiency of three faculty members, the intake capacity of the petitioner no. 2 institution was reduced from 100 to 50 seats, and the same stood removed in May, 2020 itself, the admission process still continuing and scheduled to conclude on 31st December, 2020 and classes likely to begin in January, 2021, as also that the appeal filed by Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 12/15 the petitioner no. 2 institution before NCTE has been rejected only on technicality and not merits and most importantly, the fact that it would not be in the interest of any party and certainly not in the larger public interest that any seat which stands legally permitted (originally) by the NCTE, in the background of the institution fulfilling all requisite criteria, should be permitted to be wasted or remain vacant.
21. Further, the Court has also been persuaded to take such view in the background of the admitted position that there is huge shortfall between the requirement for B.Ed. qualified persons for being recruited in various academic institutions and the actual number of approved and sanctioned seats available in all the institutions combined, especially in the State of Bihar, to which, the Court has given serious consideration and, thus, the exercise, as indicated above, has been directed, maintaining the sanctity of the order of the Hon'ble Supreme Court dated 02.09.2020 (supra) and ensuring that the same is fully complied without any deviation.
22. As prayed for by learned counsel for the NCTE, the matter be listed on 18th February, 2021, amongst the top five cases.
23. Before parting, the Court is constrained to take Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 13/15 judicial notice of the conduct of the petitioners. Being a statutory University, it is absolutely unacceptable that it would conduct such exercise of recruitment of faculty for the purpose of satisfying the norms of NCTE in a totally callous manner which has resulted in three persons being appointed who did not fulfil the basic eligibility criteria for such appointment, which was also the reason for the initial appeal filed by the petitioners being rejected. The Court would note that there is no denial on behalf of the petitioners that the objection of NCTE with regard to such three persons not possessing the requisite qualification for being appointed as faculty was erroneous and rather there is acceptance that they did not fulfill the eligibility criteria for the simple reason that they have gone for a fresh exercise of recruitment and, thus, have recruited three new persons who are stated to be duly fulfilling the eligibility criteria.
24. Such major lapse by the petitioner University, in the considered opinion of the Court, cannot be ignored as being an inadvertent error on their part. It has serious ramifications, both as it has led to abuse of the system where due to such callousness by the petitioners, duly qualified persons were not recruited and, further, it has also strained the system by unnecessarily wasting time in taking corrective measures Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 14/15 despite the petitioners on 22.08.2019 being well informed with regard to the fact that they were lacking three duly qualified faculty members for being eligible to admit 100 students for the B.Ed. Course, which even otherwise they are expected to have been aware of as it was clearly spelt out in the latest Regulations governing the issue, which was in the public domain and the petitioners, especially, cannot feign ignorance qua the same.
25. In the aforesaid background, the Court deemed it appropriate to award exemplary cost of Rs 5,00,000/- on the petitioners for such conduct. Further, being conscious of the fact that such cost should not come from the public exchequer as it is clearly the act of the persons responsible for such recruitment process, the Court was inclined to direct for an enquiry on the issue and for fixing responsibility on persons concerned for recruitment of ineligible faculty in the first round, as the Court was of the firm view that the cost has to be realized from their pockets.
26. At this juncture, learned counsel for the petitioners submitted that one indulgence be given to the petitioners as the said exercise has been carried out in the past and there is a new dispensation i.e., new persons at the helm of affairs of the petitioner University now. He, further, took a categorical stand Patna High Court CWJC No.9421 of 2020(3) dt.22-12-2020 15/15 on behalf of the petitioners, that henceforth, the authorities shall be extra cautious while discharging the duties and responsibilities of the office(s) they hold.
27. The Court, though not convinced by the stand taken, in the interest of justice, defers any adverse order, for the present, against the persons responsible.
(Ahsanuddin Amanullah, J) Shahid/Vikash-
AFR/NAFR AFR U T