Gauhati High Court
Swapan Kumar Singha vs The State Of Assam And 7 Ors on 5 April, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/28
GAHC010106352019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3214/2019
SWAPAN KUMAR SINGHA
S/O- LT JAGAT MOHAN SINGHA, R/O- LANE NO. 15, VIVEKANANDA ROAD,
SILCHAR, DIST- CACHAR, ASSAM, PIN- 788003
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION
(SECONDARY) DEPTT., DISPUR, GHY-6
2:THE STATE SELECTION BOARD
THROUGH THE CHAIRMAN
i.e.
THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
EDUCATION (SECONDARY) DEPTT.
DISPUR
GHY-6
3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
4:THE INSPECTOR OF SCHOOLS
CACHAR DISTRICT CIRCLE
SILCHAR
ASSAM
5:THE NATIONAL COUNCIL FOR TEACHER EDUCATION
THROUGH THE CHAIRPERSON
HANS BHAWAN (WING II)
1 BAHADUR SHAH ZAFAR MARG
Page No.# 2/28
NEW DELHI
6:SUPARNA SINGHA
PRINCIPAL
DESHA BHAKTA TARUN RAM PHUKAN HIGHER SECONDARY SCHOOL
SILCHAR
DIST- CACHAR (ASSAM)
PIN- 788001
7:GOVINDA CHAKRABORTY
SUBJECT TEACHER
SIRAJUL ALI H.S. SCHOOL
BORKHOLA
CACHAR
PIN- 788110
8:ABHIJIT SAHA
SUBJECT TEACHER
NARSING H.S.SCHOOL
SILCHAR
PIN- 78800
Advocate for the Petitioner : MR. I H SAIKIA
Advocate for the Respondent : SC, HIGHER EDU
Linked Case : WP(C)/4603/2020
SUPARNA SINHA
D/O- LATE SUSHIL KUMAR SINHA
R/O- AMBIKAPATTY
P.O.- G.C. COLLEGE
P.S.- SILCHAR
DIST.- CACHAR
ASSAM
PIN- 788001.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
DEPTT. OF SECONDARY EDUCATION
Page No.# 3/28
DISPUR
GUWAHATI
ASSAM
PIN- 781006.
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI
ASSAM
PIN- 781019.
3:THE INSPECTOR OF SCHOOLS
CACHAR DIST. CIRCLE
SILCHAR
DIST.- CACHAR
ASSAM
PIN- 788001.
4:THE NATIONAL COUNCIL FOR TEACHERS EDUCATION
THROUGH THE CHAIRPERSON
HANS BHAWAN
(WING-II)
1
BAHADUR SHAH ZAFAR MARG
NEW DELHI.
------------
Advocate for : MRS N SAIKIA Advocate for : SC SEC. EDU. appearing for THE STATE OF ASSAM AND 2 ORS Page No.# 4/28 BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA JUDGMENT AND ORDER (C.A.V.) In W.P.(C) 3214/2019:
For the Petitioner : Mr. I.H. Saikia, Mr. K. Kalita,
: Mr. M.R. Choudhury,
: Ms. L. Hmar, Advocates.
For respondents 1 to 4: Mr. R. Mazumdar, Mr. S.M.T. Chistie, : Standing Counsel.
For respondent no. 5 : Mr. N.H. Barbhuiya, Standing Counsel. For respondent no. 6 : Mrs. N. Saikia, Ms. A. Borah, : Ms. L. Borgohain, Ms. P. Goswami, : Advocates.
For respondent no. 7 : None appears.
For respondent no. 8 : Ms. P. Barman, Ms. S. Changkakoty, : Advocates.
In W.P.(C) 4603/2020:
For the Petitioner : Mrs. N. Saikia, Ms. A. Borah,
: Ms. L. Borgohain, Ms. P. Goswami,
: Advocates.
For respondents 1 to 3: Mr. R. Mazumdar, Mr. S.M.T. Chistie, : Standing Counsel.
For respondent no. 4 : Mr. N.H. Barbhuiya, Standing Counsel. Dates of hearing : 02.12.2021, 07.12.2021, 16.12.2021, : 25.02.2022.
Date of order : 05.04.2022.
Page No.# 5/28
By virtue of order dated 11.11.2020, passed in W.P.(C) 4603/2020, these two writ petitions have been tagged together. Hence, both the writ petitions have been heard analogously. It is mentioned that the petitioner in W.P.(C) 4603/2020 has been arrayed as respondent no. 6 in W.P.(C) 3214/2019. It may be also be mentioned that for the sake of clarity, in this order, the parties are referred to as per their position in W.P.(C) 3214/2019.
2) Heard Mr. I.H. Saikia, learned counsel for the petitioner in W.P. (C) 3214/2019, Mrs. N. Saikia, learned counsel for the petitioner in W.P.(C) 4603/2020. Also heard Mr. R. Mazumdar, learned standing counsel for the Secondary Education Department and Mr. N.H. Borbhuiya, learned standing counsel for the National Council for Teacher Education. There was no representation from the respondent no. 7 and 8 in W.P.(C) 3214/2019 on call.
Prayers made in W.P.(C) 3214/2019:
3) By filing the said W.P.(C) 3214/2019 under Article 226 of the Constitution of India, the petitioner has prayed for (i) holding the B.Ed. Degrees of the respondent nos. 6, 7 and 8 be declared to be invalid as they do not have the approval/ recognition from the National Council for Teachers Education; (ii) to set aside and quash the selection of the respondent nos. 6, 7 and 8 for the post of Principal of Desha Bhakta Tarun Ram Phukan Higher Secondary School, Cachar, Silchar; (iii) to set aside and quash the appointment of the respondent no. 6 as the Principal of the said school; (iv) to direct the respondent authorities to select and appoint the petitioner as Principal of the said school.
Page No.# 6/28 Prayers made in W.P.(C) 4603/2020:
4) In W.P.(C) 4603/2020, filed by the respondent no. 6 in W.P.(C) 3214/2019, prayers have been made to (i) set aside and quash the order dated 19.10.2020 issued by the Director of Secondary Education, Assam; and (ii) to direct the respondent authorities to allow the petitioner to continue as the Principal of the herein before named school.
Facts in brief in W.P.(C) 3214/2019:
5) On 03.05.1994, the petitioner was appointed as subject teacher in Desha Bhakta Tarun Ram Phukan Higher Secondary School. On 16.06.2016, an advertisement was issued for filling up the post of regular Principal of the said school. Amongst others, the petitioner as well as the private respondents had applied for filling up the said post. The School Selection Committee had placed the names of the respondent nos. 6, 7 and 8 at serial no. 1. The petitioner submitted representations before the authorities wherein it was claimed that the B.Ed. degrees of the said respondents were invalid. However, the Director of Secondary Education, Assam by an order dated 13.09.2018, appointed the respondent no. 6 [i.e. petitioner in W.P.(C) 4603/2020] as the Principal of the said school. Hence, the aggrieved petitioner had filed the said writ petition. The B.Ed. degree of respondent nos. 7 and 8 is assailed on the ground that he had acquired the degree from Dr. Sashi Bhusan Institute of Education during 2001-02 prior to obtaining approval from NCTE and that they had obtained their B.Ed. degree while serving as subject teacher in Judhisthir Saha H.S. School, Bihara, Kalain without obtaining prior approval from the schools where they were serving and that as the distance between the two colleges is about 70 kms., it is humanly not possible to serve in school and Page No.# 7/28 pursue the course at the same time.
6) This Court by an order dated 28.05.2019, as an interim measure, had directed (i) the Commissioner and Secretary to the Government of Assam, Secondary Education Department, (ii) the Director of Secondary Education, Assam, and (iii) the Inspector of Schools, Cachar not to disburse the relevant scale of pay with grade pay that is payable to a Principal in provincialised secondary school of the State to the respondent no. 6 until further order of the Court.
7) By filing an interlocutory application, which was registered as I.A.(C) 2123/2019, it was projected by the respondent no. 6 that her salary was stopped. Accordingly, this Court by order dated 18.07.2019 passed in the said interlocutory application, clarified by directing the respondent authorities to disburse salary to the respondent no. 6, which she was enjoying just immediately prior to the appointment as Principal. Accordingly, the said interlocutory application was disposed of.
8) Thereafter, by filing an interlocutory application, which was registered as I.A.(C) 3045/2019, the petitioner had prayed for staying the operation of the order dated 13.09.2018, by the Director of Secondary Education, Assam, thereby appointing the respondent no. 6 as the Principal of the said school. However, no interim order was passed in the said application.
Facts in brief in W.P.(C) 4603/2020:
9) During the pendency of W.P.(C) 3214/2019, by an order dated Page No.# 8/28 19.10.2020, the Director of Secondary Education, Assam had removed the respondent no. 6 from the post of Principal. Alleging that the said order was passed without holding any enquiry. Accordingly, the said order was assailed in W.P.(C) 4603/2020. This Court, by order dated 24.11.2020, allowed the respondent no. 6 to continue as Principal of the said school with all accompanying benefits and further observed that the claim as to whether the B.Ed. degree is valid or not will be decided in the writ petition and that in the event it is decided against the petitioner, she will have to make way for others.
It was also clarified that the said order was not a modification of earlier interim order.
Submissions of the learned counsel for the petitioner:
10) The learned counsel for the petitioner has extensively referred to his written synopsis of argument, which is retained as a part of the record of W.P.(C) 3214/2019. It was submitted that as per the requirement of proviso to Section 14(1) of the National Council for Teacher's Education Act, 1993 (hereinafter referred to as "the NCTE Act"), which was notified on 01.07.1995, if an institution had applied for recognition within 6 (six) months from the appointed day, such institute would have been allowed to continue till the application is disposed of by the Regional Committee. Thus, it has been submitted that as Silchar College of Education, Silchar, which had applied for recognition only on 26.03.2002, it could not have validly continued its courses after 6 (six) months from the appointed date i.e. 01.07.1995 and that the degrees conferred by the said Silchar College of Education in respect of course conducted between 01.01.1996 till 11.08.2003, the date when recognition was granted, were invalid. The B.Ed. degree of respondent nos. 7 and 8 is assailed Page No.# 9/28 on the ground that he had acquired the degree from Dr. Sashi Bhusan Institute of B.Ed. during 2001-02 prior to obtaining approval from NCTE and that they had obtained their B.Ed. degree while serving as subject teacher in Judhisthir Saha H.S. School, Bihara, Kalain without obtaining prior approval from the schools where they were serving and that as the distance between the two colleges is about 70 kms., it is humanly not possible to serve in school and pursue the course at the same time. The learned counsel for the petitioner has heavily relied on the order dated 01.11.2018, passed by this Court in W.P.(C) 4674/2017, by which the degrees conferred by Silchar College of Education prior to 2003 were held to be invalid. It was submitted that the respondents were relying on a letter dated 29.07.1997 for extending time to the colleges/ institutes imparting teacher education to apply and in the said context, it has been submitted that the said letter was merely an offer to apply, but the mere issuance of the said letter would not amount to amendment of the provisions of Section 14(1) of the NCTE Act, or to validate the degrees conferred prior to the year 2003. In support of his submissions, reliance has been placed on the following, viz., (i) NCTE Act, 1993; (ii) Rajasthan State Industrial Development & Investment Corporation v. Subhash Sindhi Cooperative Housing Society & Ors., (2013) 5 SCC 427; (iii) National Council for Teacher Education & Anr. v.
Venus Public Education Society & Ors., (2013) 1 SCC 223; (iv) B. Premanand & Ors. v. Mohan Koikal & Ors., (2011) 4 SCC 266; (v) State of U.P. & Ors. v. Bhupendra Nath Tripathi & Ors. (2010) 13 SCC 203; (vi) State of Orissa & Ors. v. Prasana Kumar Sahoo, AIR 2007 SC 2588; (vii) D. Navtnchandra and Company, Bombay v. Union of India, (1987) 3 SCC 66; (viii) Undavilli Nagarathnam v. Reddi Satyanarayana Murthi, (1976) 4 SCC 20 (ix) Mukta Ram Deka & Ors. v. State of Assam & Ors., 2013 (4) GLT 528.
Page No.# 10/28 Submissions made by the learned standing counsel for the Higher Secondary Department:
11) The learned standing counsel for the Higher Education Department has submitted that the dispute is essentially amongst the petitioner, respondent no. 6 and the NCTE, where the Secondary Education has no role to play. Hence, it was submitted that they would abide by the directions finally issued by this Court.
Submissions of the learned counsel for the respondent no. 6:
12) The learned counsel for respondent no. 6 has also extensively referred to her written synopsis and has submitted that the NCTE was constituted vide gazette notification dated 29.12.1993 and the first meeting of the NCTE was held only on 03.11.1995. Their guidelines were issued to the Assam University on 07.12.1995, which the Silchar College of Education claimed to have not received. However, guidelines dated 31.07.1996 regarding recognition, permission, affiliation, etc. of colleges imparting B.Ed. degree was received by the said college on 22.08.1996 and thereafter, vide letter dated 19.11.1996 was written by the said college to the Member Secretary, NCTE, Eastern Regional Committee, Bhubaneswar for providing copy of Regulation under Section 14(1) of the NCTE Act and in reply, the Regional Director, NCTE, vide letter dated 30.04.1997 informed about the procedure for obtaining recognition. Thereafter, the application for recognition was submitted by the said College on 26.05.1997 before the Vice Chairman, NCTE, New Delhi. It was also submitted that as many colleges and institutions imparting teacher education course were not aware of the procedure, the NCTE, vide letter dated Page No.# 11/28 29.07.1997 informed the Vice Chancellor of Assam University that extension of time was granted till 18.08.1997 for colleges and institutions imparting Teacher Education to apply for recognition. Hence, it has been submitted that the degrees conferred by the said Silchar College of Education were all valid and there was no impediment for the respondent no. 6 to hold the post of Principal of the said school.
Submissions of the learned standing counsel for the NCTE (respondent no.5):
13) The learned standing counsel for the NCTE has referred to their affidavit-in-opposition and it was submitted that the NCTE had written to the Vice Chancellor of the Assam University on 31.07.1996 for the requirement of the institutions offering or intending to offer a course or training in teacher education to seek recognition informed, and in response the Vice Chancellor of the Assam University by his reply dated 22.08.1996 informed the NCTE that their circular dated 07.12.1995, referred to in the letter dated 31.07.1996 was not received by them. Thereafter, the NCTE by its letter dated 29.07.1997 informed the Registrar of the Assam University that the last date of receipt of applications by four Regional Committees of the Council had been extended upto 18.08.1997. Thereafter, on application submitted by the Silchar College of Education to the NCTE Eastern Regional Committee for recognition, notification dated 24.11.1998 was issued by NCTE allowing provisional intake of 60 students for the session 1999-2000, subject to certain compliances by 31.12.1999. The said provisional recognition was extended for the academic year 2000-2001 vide notification dated 13.01.2000, subject to removal of deficiencies by 31.08.2000.
Thereafter, vide notification dated 11.05.2001, recognition to Silchar College of Page No.# 12/28 Education was refused for reasons assigned therein. Thereafter, vide notification dated 11.08.2003, recognition was granted to the Silchar College of Education for one year from the academic session 2003-04 with an annual intake of 60 students.
14) By referring to the diametrically opposite stand taken by the NCTE in their affidavit-in-opposition filed by the NCTE in the proceeding of (i) W.P.(C) 4674/2017 - Sirazul Ambia v. The State of Assam & Ors., and (ii) in the proceedings of W.A. No. 354/2018 - Shelley Das Chowdhury (Smt.) v. Sirazul Ambia & Ors., to the effect that B.Ed. degree granted by the Silchar College of Education prior to 11.08.2003 was invalid, it was submitted that the said affidavit was based on an erroneous premise. In that regard, it was submitted that after NCTE letter dated 29.07.1997, by which last date of applying was extended till 18.08.1997, the Silchar College of Education had applied for recognition within the extended time and file no. AS-S/E-12/97 was created. Thereafter, the provisional recognition for the session 1999-2000 was granted by order dated 24.11.1998, which was later on extended for session 2000-2001. However, after the Silchar College of Education failed to meet the deficiencies, the NCTE had refused to grant recognition to the said college and the concerned file no. AS-S/E-12/97 was closed. Accordingly, it was submitted that as the said college was granted provisional recognition was granted till the academic session 2000-2001, the degree granted by Silchar College of Education till the year 2001 was valid. It was further submitted that after Silchar College of Education applied again for recognition, the said application was taken up by a different file bearing File no. APE00167 and after finding requisite compliance of all the deficiencies, recognition was granted for the session 2003-04, and that Page No.# 13/28 for all purpose, the case of Silchar College of Education was considered as a new recognition and all subsequent records were maintained in the said File no. APE00167. The previous file was not considered by the NCTE while filing their affidavit-in-opposition in the proceeding of (i) W.P.(C) 4674/2017 - Sirazul Ambia v. The State of Assam & Ors ., and (ii) in the proceedings of W.A. No. 354/2018 - Shelley Das Chowdhury (Smt.) v. Sirazul Ambia & Ors.
15) It was submitted that in para-6 of their affidavit-in-opposition, the deponent, who was the Regional Director, Eastern Regional Committee of the NCTE had sought for an unconditional apology for the inadvertent error of over-looking the previous file no. AS-S/E-12/97 which was closed and that the said affidavit was filed based on the record of subsequent File no. APE00167.
Stand of the respondent no. 8 in their affidavit-in-opposition:
16) The respondent no. 8 had filed their affidavit-in-opposition.
However, although the learned counsel for the respondent no. 8 was present when the learned counsel for the petitioner had concluded his submissions, but was absent on call when the respondents' side was heard. The stand in the affidavit-in-opposition was to the effect that as per Annexure-7 of the writ petition, Dr. Sashi Bhusan Institute of Education had have recognition during the relevant time when the respondent no. 8 had obtained B.Ed. degree. It was also stated that as the respondent no. 8 was serving as subject teacher in Judhisthir Saha H.S. School, Bihara, Kalain, he had taken permission from the Inspector of Schools, Hailakandi to pursue his B.Ed. course. It was stated that the distance between the two colleges is about 45 kms. passing through NH-37 and 154, it Page No.# 14/28 takes only about 1 to 11/2 hour to travel between the two places in own vehicle.
Directions contained in order dated 23.11.2021 in W.A. 191/2020:
17) The Division Bench of this Court closed the intra Court appeal without interfering with the interim order dated 24.11.2020 in W.P.(C) 4603/2020 and W.P.(C) 3214/2019 and these writ petitions were remanded for adjudication.
Reasons and decision:
18) The only point of determination is whether the B.Ed. Degrees of the respondent nos. 6, 7 and 8 is liable to be declared as invalid as they do not have the approval/ recognition from the National Council for Teachers Education? And what consequential reliefs the parties are entitled to?
A. Claim of the petitioner against the respondent nos. 7 and 8:
19) With the stand taken by the respondent no. 8 in his affidavit-in-
opposition, it appears that the respondent no. 7, although had not contested the writ petition, but would be similarly situated as the respondent no. 8. Therefore, as the Annexure-7 to the writ petition discloses that the institution from where the respondent nos. 7 and 8 had acquired their B.Ed. degree was a NCTE recognized institution, the B.Ed. Degree earned by the said respondents are beyond any question. Assuming for the time being that the respondent nos. 7 and 8 had obtained their degree without permission from their employer, they may have some explanation to be made to their employer, but the learned Page No.# 15/28 counsel for the petitioner has not been able to show any legal position which would render their B.Ed. degree as invalid. Therefore, the claim of the petitioner qua the respondent nos. 7 and 8 deserves to be and is accordingly, dismissed.
B. The decision of the NCTE to extend last date for applying upto 18.08.1997:
20) The National Council for Teachers Education, 2003 came into force on 01.07.1995, vide S.O. 620(E) dated 01.07.1995, published in the Gazette of India, Extraordinary, Pt. II, Sec. 3(ii), dated 10.07.1995. Under Rule 14(1) of the NCTE Rules, 1997 the NCTE is required to prepare once in every year its annual report in Form III appended to the said rules. It is seen from the Annual Report of NCTE for the year 1997-98, which was produced by the learned standing counsel for the NCTE that the second meeting of the Executive Body/Committee was held on 17.10.1997 and the third meeting of the General Council was held on 17.11.1997. As per the said report, in the second meeting of the Executive Committee, amongst others, it was decided that " The Regional Committees may take up for consideration applications of institutions, which were offering courses in teacher education before 17.08.1995, received after 18.08.1997, if they are satisfied that there are bona fide reasons for delay."
Thus, the NCTE has been able to demonstrate that the decision to extend the date for making application for recognition was extended by the Executive Committee of NCTE, which is a statutory body.
21) The stand of the NCTE to the effect that the last date for applying for recognition was extended till 18.08.1997 appears to be the consistent stand of the NCTE. This Court in the case of Pranita Sarma Vs. The Page No.# 16/28 State of Assam & Ors. In WP(C) 3289/2020 decided on 25.02.2021 , had observed that the prescribed period of 6 months provided in the proviso to Section 14(1) of the NCTE Act stood extended upto 18.08.1997. Thus, the stand of the NCTE in this case that the time to apply for recognition stood extended upto 18.08.1997 is not an isolated stand, which can be doubted.
22) It is not in dispute that the NCTE by its letter dated 29.07.1997 informed the Registrar of the Assam University that the last date of receipt of applications by four Regional Committees of the Council had been extended upto 18.08.1997. The Silchar College of Education had submitted its application for recognition on 26.05.1997 before the Vice Chairman, NCTE, New Delhi. Thereafter, the provisional recognition for session 1999-2000 was granted by order dated 24.11.1998, which was later on extended for the session 2000-01.
23) The question therefore arises whether it is permissible for the Court to interfere when the professionals, who are specialist in the field have taken a particular stand in the matter? In the opinion of the Court, the answer must lie in the negative. In the case of University of Mysore v. C.D. Govinda Rao & Anr., AIR 1965 SC 491, the University had appointed a Board of appointments to select candidates to the post of Reader. The recommendations made by the Board were accepted by the University and the appointments were accordingly made. These appointments were challenged before the Court under Article 226 of the Constitution of India on the ground that candidates did not possess the requisite qualification. The Supreme Court of India had held that Court should not interfere in such matters if there is no allegation of mala fides against persons who constituted the Board, and it was further observed that it will be Page No.# 17/28 wiser and safer for the Courts to leave the decision to the experts who are more familiar with the problems they face than the Court generally can be. The Court is also inclined to take note of the observations made by the Supreme Court of India in the case of M.P. Oil Extraction and Anr. v. State of Madhya Pradesh and Ors. (1997) 7 SCC 592, that the executive authority of the State must held to be within its competence to frame a policy for the administration of the State. Court cannot and should not out-step its limit, unless policy framed is absolutely capricious not being informed by any reason whatsoever or offends any constitutional provisions. Thus, in this case as the NCTE, being a statutory body has made assertion on oath by filing affidavit-in-opposition through the Regional Director, Eastern Regional Committee, NCTE, the Court would be a loath to take a contradictory view and to hold that the last date for applying for recognition was not extended till 18.08.1997.
24) Thus the Court is satisfied that the NCTE had extended the last date for applying till 18.08.1997.
C. Validity or otherwise of the degrees granted by the Silchar College of Education between 01.01.1996 till 11.08.2003:
25) The Silchar College of Education had submitted its application for recognition on 26.05.1997 before the Vice Chairman, NCTE, New Delhi.
Thereafter, the provisional recognition for session 1999-2000 was granted by order dated 24.11.1998, which was later on extended for the session 2000-01. In this regard, the provisions of Section 14(1) of the NCTE Act is quoted below:-
"14. Recognition of institutions offering course or training in teacher education. - (1) Every institutions offering or intending to offer a course or Page No.# 18/28 training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations:
Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee.
Provided further that such institutions, as may be specified by the Central Government by notification in the Official Gazette, which--
(i) are funded by the Central Government or the State Government or the Union Territory Administration;
(ii) have offered a course or training in teacher education on or after the appointed day till the academic year 2017-2018; and
(ii) fulfill the conditions specified under clause (a) of sub-section (3), shall be deemed to have been recognised by the Regional Committee."
26) Thus, as the NCTE had extended the time for applying for recognition, by virtue of the provisions of Section 14(1) of the NCTE Act, the degrees conferred by the said Silchar College of Education in respect of course conducted between 01.01.1996 till 11.08.2003, the date when recognition was granted cannot be held to be invalid.
D. Discussions on case laws cited at the Bar: 27) On the point that executive instructions without any statutory
force cannot override the law, the following cases were cited, viz., (i) Rajasthan State Industrial Development & Investment Corporation (supra) (para-27) , and
(ii) Prasana Kumar Sahoo(supra) (para-14) were cited. For the legal proposition that without recognition by NCTE, B.Ed. degree is not a valid degree and that on the basis of such invalid degree no one can derive any public employment, the Page No.# 19/28 case of (i) Venus Public Education Society & Ors. (supra) (para-35) , and (ii) Mukta Ram Deka (supra) (para 11 to 13) were cited. The case of D. Navtnchandra and Company (supra) (para-26) was cited to press the point that equity cannot be invoked in favour of beneficiaries of illegal action/ legislation. The case of Undavilli Nagarathnam (supra) (para-20) was cited on the point that ignorance of law cannot be pleaded. The case of B. Premanand & Ors. (supra) (para 9 and 13) was cited on the point that when there is conflict between law and equity, it is the law which is to prevail. The case of Bhupendra Nath Tripathi & Ors. (supra) (para 19) was cited on the point that once an application has been filed within the prescribed period of 6 (six) months from the appointed day, the institution is entitled to continue the course or training in teacher education till disposal of the application by the Regional Committees.
28) It may be stated herein that there is no quarrel with the ratio laid down by the Supreme Court in the herein before referred cases. Nonetheless, the said cases are not found to help the petitioner in any manner because the Court has already arrived at a finding of fact that the last date of applying for recognition as prescribed in Section 14(1) of the NCTE Act was extended till 18.08.1997 and that applicant had applied on 26.05.1997, i.e. prior to the extended last date. Thereafter, the provisional recognition for session 1999-2000 was granted by order dated 24.11.1998, which was later on extended for the session 2000-01. Accordingly, by virtue of the provisions of Section 14(1) of the NCTE Act, the degrees conferred by the said Silchar College of Education in respect of course conducted between 01.01.1996 till academic session 2000-2001, i.e. the period during which provisional recognition was granted cannot be held to be invalid. Thereafter, from 11.08.2003 after Page No.# 20/28 recognition was granted, the degree conferred thereafter for session commencing after 11.08.2003 cannot be held to be invalid.
E. Whether the decision to extend the date of application till 18.08.1997 is not in accordance with law:
29) In this case the respondent no. 6 in W.P.(C) 3214/2019 has been able to demonstrate that her degree as conferred by the Silchar College of Education was valid.
30) The petitioner in W.P.(C) 3214/2019 has not been able to show that the decision or action of the NCTE authorities can be held to be tainted with malice or was contrary to any public interest or was wholly unconstitutional. The decision of NCTE to extend the time for applying is upto 18.08.1997 was taken by the Executive Committee of NCTE. The constitution of the Executive Committee is provided for in Section 19(1) of the NCTE Act. The provisions of Section 19 is extracted below:-
"19. Executive Committee.- (1) The Council shall constitute a Committee, called the Executive Committee for discharging such functions as may be assigned to it by the Council or as may be determined by regulations.
(2) The Executive Committee shall consist of the following members, namely:-
(a) The Chairperson;
(b) The Vice-Chairperson;
(c) The Member-Secretary;
(d) The Secretary to the Government of India in the Department dealing with Education, ex officio;
(e) The Secretary, University Grants Commission, ex officio;
(f) The Director, National Council of Educational Research and Training, ex officio;
Page No.# 21/28
(g) The Financial Adviser to the Government of India in the Department dealing with Education, ex officio;
(h) Four experts in teacher education to be nominated by the Central Government;
(i) Four State representatives to be nominated by the Central Government in such manner as may be prescribed;
(j) The Chairperson of the Regional Committees.
(3) The Chairperson and the Member-Secretary of the Council shall respectively, function as the Chairperson and the Member-Secretary of the Executive Committee.
(4) The Chairperson or in his absence, the Vice-Chairperson of the Council shall preside at the meetings of the Executive Committee and in the absence of both the Chairperson and the Vice-chairperson, any other member chosen by the members present at the meeting shall preside at the meeting. (5) The quorum necessary for the transaction of business at the meetings of the Executive Committee shall be as laid down by regulations. (6) The Executive Committee may co-opt, in such manner and for such purposes, as may be determined by regulations, not more than two persons whose assistance and advice, it may desire in carrying out any of the functions assigned to the Executive Committee;
Provided that the persons co-opted by the Executive Committee for any purpose shall have a right to take part in the discussions relevant to that purpose, but shall not have a right to vote at a meeting of the Executive Committee, and shall not be a member for any other purpose.
(7) The Council may, if it considers necessary, establish such other committees, for such specific purpose as it may deem fit."
31) Thus, it is clear from the Annual Report of NCTE for the year 1997-98, which is prepared as per Rule 14(1) of the NCTE Rules, 1997 that the Executive Committee of the NCTE had taken a decision in its second meeting held on 17.10.1997, inter alia, to allow the Regional Committees to take up for consideration applications of institutions, which are offering courses before 17.08.1995, received after 18.08.1997, if they are satisfied that there are bona Page No.# 22/28 fide reasons for the delay. Having noted the constitution of the Executive Committee of NCTE, the Court would not brush aside and/or negate the decision of the said Executive Committee in a cavalier or off-hand manner and to hold that their decisions were not sustainable. Moreover, the said decision was not college specific or for any particular college, but the said decision had a general application, which is evident from the herein before referred case of Pranita Sarma (supra) as the college in reference in the said case was Dakhin Guwahati B.Ed. College, where this Court had observed that the last date for applying for recognition was extended till 18.08.1997. In view of the above discussion, the Court cannot question or doubt the decision of the Executive Committee of NCTE. The existence of decision by Executive Committee of 17.10.1997 and herein before referred letters and correspondences prima facie leads to a conclusion that those chain of events did take place as projected. In the said context this appears to be a fit case wherein the Court may presume under Section 114, Illustration (e) of the Evidence Act, 1872 that judicial and official acts have been regularly performed.
32) It does not appear that the grant of extension of time by NCTE to the Silchar College of Education to apply for recognition till 18.08.1997 was done without due care and attention on part of the NCTE. The said act of granting extension of time and thereafter, granting of the provisional recognition of the said Silchar College of Education by the NCTE cannot be held to be mala fide and therefore, in this case, such act is presumed to have been done in good faith, without any personal ill-will or malice.
33) It would be appropriate to refer to para 24 to 26 of the case of Page No.# 23/28 Rajasthan State Industrial Development & Investment Corporation (supra) , where the Supreme Court of India has observed as follows:-
24. The primary purpose of the writ is to protect and establish rights, and to impose a corresponding imperative duty existing in law. It is designed to promote justice, (ex debito justiceiae) and its grant or refusal is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or establish a legal right but, to enforce one that stood already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal. Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles.
Refusal of relief must be for reasons which would lead to injustice. The prime consideration for issuance of the writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether proper pleadings are being made. Further in order to maintain the writ of mandamus, the first and foremost requirement is that, the petition must not be frivolous and it is filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an officer having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand. [Vide: Commissioner of Police, Bombay v. Govardhandas Bhanji, AIR 1952 SC 16; Praga Tools Corporation v. Shri C.V. Imanual & Ors., (1969) 1 SCC 585: AIR 1969 SC 1306; Punjab Financial Corporation v. Garg Steel, (2010) 15 SCC 546; Union of India & Ors. v. Arulmozhi Iniarasu & Ors., (2011) 7 SCC 397: AIR 2011 SC 2731; and Khela Banerjee & Anr. v. City Montessori School & Ors., (2012) 7 SCC 261].
25. This Court in General Officer Commanding v. CBI & Anr., (2012) 6 SCC 228: AIR 2012 SC 1890, explained the phrase "good faith":
Page No.# 24/28 "70. Good faith has been defined in Section 3(22) of the General Clauses Act, 1897, to mean a thing which is, in fact, done honestly, whether it is done negligently or not. Anything done with due care and attention, which is not mala fide, is presumed to have been done in good faith. There should not be personal ill-will or malice, no intention to malign and scandalize. Good faith and public good are though the question of fact, it required to be...
71. In Brijendra Singh v. State of U.P. & Ors., (1981) 1 SCC 597: AIR 1981 SC 636, this Court while dealing with the issue held:
"18. In the popular sense, the phrase 'in good faith' simply means "honestly, without fraud, collusion, or deceit; really, actually, without pretence and without intent to assist or act in furtherance of a fraudulent or otherwise unlawful scheme"... it is a cardinal canon of construction that an expression which has no uniform, precisely fixed meaning, takes its colour, light and content from the context."
26. Thus, it is evident that a writ is not issued merely as is legal to do so. The court must exercise its discretion after examining pros and cons of the case ."
34) Moreover, the petitioner has only assailed the B.Ed. degree of the respondent nos. 6 to 8 as invalid. Nonetheless, although the respondent nos. 5 and 6 had pleaded that the NCTE had granted extension of time for the applications to be filed for recognition upto 18.08.1997 vide communication dated 29.07.1997 (Annexure-C to affidavit-in-opposition filed by the respondent no. 5), the said communication has not been assailed. Moreover, in the absence of any challenge to the decision taken by the Executive Committee of the NCTE in its second meeting held on 17.10.1997 to extend the date of making application for recognition, the Court is unable to hold that the decision of NCTE to extend the date for making application for recognition till 18.08.1997, which can be presumed to be a sort of post facto approval, cannot be said to be not in accordance with law. Once such communication dated 29.07.1997, was made to Page No.# 25/28 Assam University for circulation amongst concerned colleges, it would mean that the period of 6 (six) months provided in the proviso to Section 14(1) of NCTE Act stood extended till 18.08.1997.
F. Contrary affidavit filed by NCTE in previous proceedings, whether would preclude the NCTE from altering their stand in this case:
35) It is not in dispute that a contradictory stand of the NCTE was taken in their affidavits filed in the proceeding of (i) W.P.(C) 4674/2017 - Sirazul Ambia v. The State of Assam & Ors ., and (ii) in the proceedings of W.A. No. 354/2018 - Shelley Das Chowdhury (Smt.) v. Sirazul Ambia & Ors . In the said proceedings, the NCTE stand was to the effect that B.Ed. degree granted by the Silchar College of Education prior to 11.08.2003 was invalid.
36) In this case, the NCTE had given an explanation that on 11.05.2001, after the NCTE had refused to grant recognition to the said college, the concerned file no. AS-S/E-12/97 was closed. Thus, the degree obtained by students till the year 2001 was valid. It was further explained that after Silchar College of Education applied again for recognition, the said application was taken up by a different file bearing File no. APE00167 and after finding requisite compliance of all the deficiencies, recognition was granted for the session 2003-
04, and that for all purpose, the case of Silchar College of Education was considered as a new recognition and all subsequent records were maintained in the said File no. APE00167. It was stated that the previous file was not considered by NCTE while submitting their affidavit-in-opposition, for which the NCTE had tendered unconditional apology. The Court is unable to wholly discard said explanation as unbelievable because of the maxim " to err is human".
Page No.# 26/28
37) Thus, under the peculiar facts and circumstances of this case, the Court is inclined to accept the contention of the NCTE and their stand in this present case is held to be acceptable. However, the Court hastens to add that no comment is being made on the affidavit-in- opposition filed by NCTE in the previous two proceedings, nor any opinion whatsoever has been expressed in respect of the judgment and/or orders that were passed by this Court in the said two proceeding of (i) W.P.(C) 4674/2017 - Sirazul Ambia v. The State of Assam & Ors., and (ii) in the proceedings of W.A. No. 354/2018 - Shelley Das Chowdhury (Smt.) v. Sirazul Ambia & Ors. The present decision is rendered qua the petitioner and respondent no. 6, 7 and 8 in W.P.(C) 3214/2019.
38) Thus, the point of determination is answered in the negative and against the petitioner in W.P.(C) 3214/2019 by holding that the B.Ed. Degrees of the respondent nos. 6, 7 and 8 is not liable to be declared as invalid as the institutions conferring such degrees are found to have the approval/ recognition from the National Council for Teachers Education.
G. Reliefs to which the parties are entitled to in W.P.(C) 3214/2019 and 4603/2020:
39) The petitioner in W.P.(C) 3214/2019, namely, Swapan Kumar Singha is not found entitled to any relief. However, as the impugned order dated 19.10.2020 (Annexure-17 to WP(C) 4603/2020) by the Director of Secondary Education, Assam was based on interim order dated 28.05.2019 by this Court in W.P.(C) 3214/2019, with the dismissal of the said W.P.(C) 3214/2019, the prayer made by the petitioner in W.P.(C) 4603/2020, namely, Suparna Sinha deserves Page No.# 27/28 to be allowed.
Order:
40) As a result of the discussions above, in connection with W.P.(C) 3214/2019 the Court does not find this to be a fit case for holding that the concerned institutes offering B.Ed. degrees had no recognition for the relevant years when the respondent nos. 6 to 8 had been conferred with B.Ed. degree.
Resultantly, this is also not a fit case for holding that the B.Ed. degree earned by the respondent nos. 6, 7 and 8 were invalid. Consequently, no case has been made out by the petitioner for interfering with the selection of the respondent nos. 6 to 8 for the post of Principal of the Desha Bhakta Tarun Ram Phukan Higher Secondary School in the district of Cachar or for setting aside and quashing the appointment of the respondent no. 6 as the Principal of the said Desha Bhakta Tarun Ram Phukan Higher Secondary School in the district of Cachar. Consequently, the petitioner is not entitled for an order for directing the respondent authorities to select and appoint the petitioner as the Principal of the said school.
41) In connection with W.P.(C) 4603/2020, as the W.P.(C) No. 3214/2019 is dismissed, as a consequence thereof, the Court is inclined to set aside and quash order under Memo no. GB-EST/DSE/CC/68/2019/77 dated 19.10.2020, issued by the Director of Secondary Education, Assam.
42) Thus, W.P.(C) 3214/2019 (Swapan Kr. Singha v. The State of Assam & Ors.) stands dismissed and interim orders passed earlier stand vacated. W.P.(C) 4603/2020 (Suparna Sinha v. The State of Assam & Ors.) Page No.# 28/28 stands allowed to the extent as indicated above.
43) The two pending interlocutory applications in connection with both the two writ petitions, being I.A.(C) 2374/2021 and I.A.(C) 3045/2019 stands closed. However, the parties are left to bear their own cost.
JUDGE Comparing Assistant