Allahabad High Court
Central Women'S College Of Education ... vs State Of U.P.Thru.Alld.Chief ... on 20 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2233
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on: 25.07.2019
Delivered on: 20.11.2019
Court No. - 14
Case :- MISC. SINGLE No. - 33797 of 2018
Petitioner :- Central Women'S College Of Education Thru.Director & Another
Respondent :- State Of U.P.Thru.Alld.Chief Secy.Empowerment Of Persons&Ors
Counsel for Petitioner :- Laltaprasad Misra
Counsel for Respondent :- C.S.C.,Atul Kumar Dwivedi,O.P.M.Tripathi
Hon'ble Irshad Ali,J.
1) Heard Dr. L.P. Misra, learned Senior Advocate assisted by Sri Dipankar Kumar, learned counsel for the petitioners, Sri Manish Kumar, learned Senior Advocate assisted by Sri Atul Kumar Dwivedi, learned counsel for the respondent-University and Sri O.P.M. Tripathi, learned counsel for the respondent-N.C.T.E.
2) By means of the present writ petition, the petitioners are challenging the order dated 17.10.2018 (Anneuxre No.1 to the writ petition), whereby Dr. Shakuntala Misra National Rehabilitation University, Lucknow (for short, "University) has refused to accord affiliation to the petitioners' institution for the session 2018-19 for B.Ed. Course and B.Ed. Special Education (H.I. - Hearing Impairment) course with a prayer to issue direction in the nature of mandamus commanding the respondent Nos.3 and 4 to treat the affiliation as continuing for the academic Session 2018-19 with a further prayer to the respondents to allow the petitioners to run B.Ed. and B.Ed. Special Education (H.I.) courses in the petitioners' institution, to complete the studies of the students already enrolled / admitted in the previous academic session, to conduct the examination and to declare the result accordingly.
3) Factual matrix of the case is that there is a Society registered under the provisions of Societies Registration Act, 1860. The petitioner No.2 has established the petitioner No.1 as a minority institution, which runs and manages the aforesaid institution and is successfully running the B.Ed. course since year 2003. Dr. Shakuntala Misra National Rehabilitation University, Lucknow is empowered to grant affiliation to the institutions under the Act of 2009.
4) Rehabilitation Council of India (RCI) granted approval to the petitioners' institution vide order dated 26.04.2016 for running the Bachelor in Special Education (H.I.) course. The National Council for Teachers Education (NCTE) granted recognition to the petitioner's institution vide order dated 02.05.2016 for Bachelor of Education Course under the new Regulation of 2014 with the intake of 50 students. The University after due inspection, granted affiliation to the petitioner No.1 institution vide order dated 11.08.2016 for B.Ed. and B.Ed. Special Education (H.I.) courses with the approved intake of 50 and 25 seats respectively for the academic session 2016-2017.
5) During pendency of the writ petition, the name of the petitioner's institution was changed as Central Public School and the same was intimated to the National Council for Teachers Education (NCTE) and upon consideration of the application vide order dated 02.01.2019 ascent was granted by the NCTE to change the name accordingly by moving an application for amendment.
6) The fact in regard to change of name of the institution was brought on record and the application was allowed vide order dated 16.05.2019 with the permission to make necessary correction in the writ petition and accordingly, the correction was made in the writ petition.
7) By filing an affidavit, the petitioner has brought on record of the writ petition a copy of the order of approval of B.Ed. Special Education (H.I.) Course from the session 2019-20 issued by the Rehabilitation Council of India (RCI) dated 22.04.2016 as well as in regard to the fact by moving an application to the University for extension of affiliation for the academic session 2019-20 on 29.04.2019.
8) The RCI has extended the approval by Director of Special Education (H.I.) for the academic session 2018-19 vide certificate issued on 22.06.2018.
9) Vide letter dated 22.06.2018, the approval for B.Ed. Special Course was granted to the petitioner's institution by the RCI by pointing out certain shortcomings, which were complied with by the petitioner institution and communication in this regard was given to the RCI vide letter dated 25.06.2018 and no further objection was raised by the RCI in regard to shortcomings after submitting the required documents by the petitioner's institution.
10) It has further been pointed out that in paragraph No.4 of the supplementary affidavit that due to passing of impugned order, the institution of the petitioner has not taken even a single admission for academic session 2018-19 for first year of B.Ed. as well as a single admission for B.Ed. Special Education (H.I.) Course.
11) The list of approved institutions by the RCI dated 24.10.2018 has also been brought on record of the writ petition, wherein name of the petitioner's institution finds place at serial No.644.
12) The University, in exercise of power under the provisions of Statute 11-A.26, upon the undertaking/certificate from institution had extended the validity of the affiliation to the petitioner No.1 institution for the academic session 2017-18 and issued a brochure for grant of admission for the academic session 2018-19 showing the name of petitioner No.1 institution as a college affiliated to the University for taking admission in B.Ed. and B.Ed. (H.I.) courses.
13) The University conducted counselling on 06.08.2018 for the academic session 2018-19 allowing the petitioners' institution to participate in the counselling and the students appearing in the counselling also participated and applied for taking admission in the B.Ed. and B.Ed. Special Education (H.I.) course offered by the petitioner No.1 institution.
14) The University announced the result of the counselling on 04.09.2018 only with respect to the course run by the University but did not announced the result of the counselling with respect to the petitioner No.1 institution. The University constituted a penal to conduct the inspection on 06.09.2018 for extension of affiliation and issued the order of physical inspection of the petitioner No.1 institution and in pursuance thereof, an inspection was conducted on 10.09.2018.
15) After inspection of the institution, an order was passed on 17.10.2018, whereby extension of temporary affiliation to the petitioner's institution has been refused and thereafter, a letter was issued on 06.11.2018 by which the impugned order has been dispatched enclosing the deficiency refusing the extension of affiliation.
16) Assailing the order impugned in the present writ petition, learned Senior Counsel for the petitioner submitted that once the institution of the petitioner has been granted recognition and approval by the NCTE and RCI after adopting the due process of law and thereafter, the affiliation has been granted in accordance with the statute of the University, the impugned order refusing the affiliation to the petitioner's institution for the academic session 2018-19 would not have been passed.
17) He next submitted that after grant of recognition by the NCTE, the University is bound to accord affiliation by virtue of mandate contained under Section 14(6) of the NCTE Act and failure to grant the same stinks of arbitrariness and in violation of mandate contained in Article 14 of the Constitution of India.
18) He further submitted that once the NCTE and RCI by adopting due process of law have granted recognition and affiliation to the petitioner's institution in accordance with the statute of the University, the entitlement for affiliation for the academic session 2018-19 and to admit the students in the petitioner's institution cannot be refused.
19) He next submitted that cancellation of affiliation of the petitioner's institution is in contravention of the mandate contained under Section 17(3) of NCTE Act.
20) He further submitted that the impugned order has been passed in violation of principles of natural justice as no opportunity of hearing was afforded to the institution of the petitioner prior to passing of the impugned order intimating deficiency, if any, existing in the institution.
21) He next submitted that prior to passing of the impugned order, the deficiencies, which were in derogation with the condition of recognition or affiliation had never been communicated to the petitioner's institution with a view to obtain explanation from the petitioner's institution for making good the deficiencies. Under the Statute 11-A and 37, the University is bound to call upon the institution to take appropriate action within stipulated time before taking any action pertaining to refusal to grant affiliation to the institution. While passing the impugned order, no recourse, as referred above, was adopted by the University.
22) He further submitted that recognition was accorded under the provisions of Central Legislation and in pursuance thereof, affiliation was granted by the University, then the University is bound to report any deficiency / short coming to the central recognition body and in case the order of recognition is cancelled, then the refusal of affiliation can be made by the University.
23) His further submission is that the institution is recognized as minority institution, therefore, refusal of affiliation by the University is illegal and arbitrary.
24) He next submitted that the University included the petitioner No.1 institution in counselling for B.Ed. and B.Ed. Special Education (H.I.) courses for the academic session 2018-19 and the students opted the institution of the petitioner for academic session 2018-19 and if the affiliation is withdrawn from the petitioner's institution, the entire infrastructure created for the students shall be rendered useless.
25) He further submitted that State enactment or the execution action of the University has necessarily to yeild to NCTE Act and the regulation framed thereunder as the same is referable to Entry 66 of List I of the 7th Schedule of the Constitution.
26) Learned Senior counsel for the petitioners last submitted that exercise of power by the respondent University smacks from malicious intention by pointing out that the institution was initially affiliated with the Lucknow University who accorded affiliation to the petitioner's institution. In support of his submissions, he placed reliance upon certain judgments, which are as under:
i) State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others; 2006 (9) SCC 1, paragraph No.75.
ii) Chairman, Bhartia Education Society and another Vs. State of Himachal Pradesh and others; 2011 (4) SCC 527, paragraph No.15, 16 and 17.
iii) Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of U.P. and others; 2013 (2) SCC 617, Paragraph No.57.
iv) Rungta Engineering College, Bhilai and Another Vs. Chhatisgarh Swami Vivekanand Technical University and another; 2015 (11) SCC 291, paragraph Nos.24, 25 and 27.
v) Allahabad Radha Govind Maha Vidyalaya and another Vs. State of U.P. and others; 2010 (1) AWC 773, paragraph No.19 and 20.
vi) Sattar Memorial College of Education through its Principal Vs. State of Bihar and others; 2011 (2) Patna Law Journal Reports 622, paragraph Nos.5 to 9.
vii) Awadh Center of Education for Women, Sant Kabir Nagar and another Vs. State of U.P. and others; 2015 (10) ADJ 115, paragraph Nos.20 to 26.
viii) Committee of Management Babu Baijnath Singh Maha Vidyalaya and another Vs. State of U.P. and others; 2016 (5) AWC 4438, paragraph No.56.
ix) Committee of Management Chaudhary Mahavir Prasad Maha Vidyalaya and another Vs. State of U.P. and others; Writ -C No.59634 of 2010, interim order dated 01.10.2010.
x) Isabella Thouburn College and another Vs. State of U.P. and others; Writ Petition No.3039 (MB) of 2010, order dated 07.04.2010.
xi) Committee of Management Dr. M.C. Saxena College of Education and another Vs. State of U.P. and others, order dated 08.07.2019.
xii) Jaya Gokul Educational Trust Vs. Commissioner and Secretary to Government Higher Education Department and another; 2000 (5) SCC 231, paragraph Nos.8 and 28 to 31.
27) On the other hand, Sri Manish Kumar, learned Senior Counsel assisted by Sri Atul Kumar Dwivedi, learned counsel representing the respondent University submitted that while granting approval, the NCTE provided that the University may inspect the institution and take necessary action, in case the norms prescribed are not fulfilled by the institution.
28) He further submitted that in pursuance to the permission accorded by the NCTE and RCI, upon inspection, certain shortcomings were found and accordingly, the order of suspension of affiliation was passed against the institution of the petitioner.
29) He next submitted that the institution is running several other courses on the land, which was shown in taking recognition for B.Ed. and B.Ed. Special Education (H.I.) Courses, therefore, the land shown is not sufficient to run the different courses in the institution of the petitioner, therefore, the action taken is justified and the impugned order does not suffer from any infirmity or illegality. In support of his submissions, he placed reliance upon the judgments referred herein below:
i) Committee of Management, Anuragi Devi Degree College and another Vs. State of U.P. and another; 2016 (12) SCC 517, paragraph Nos.12 and 17.
ii) Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of U.P. and others; 2013 (2) SCC 617, paragraph Nos.68 to 70 and 77-78.
iii) Committee of Management Shri Sai Sansthan, Sri Sirdi Sai Baba Mandir, Agra and others Vs. Deputy Registrar, Firms, Societies and Chits, Agra and another; 2000 (3) HVD 493, paragraph No.10.
iv) Ashok Kumar Sonkar Vs. Union of India and others; 2007 (4) SCC 54, paragraph Nos.34 to 36.
v) National Council for Teacher Education and another Vs. Venus Public Education Society and others; 2013 (1) SCC 223, paragraph Nos.33 and 34.
vi) Sunil Oraon (Minor) Through Guardian and others Vs. CBSE and others; 2006 (13) SCC 673, paragraph No.23.
Vii) Nehru Gram Bharati University Vs. State of U.P.; 2018 SCC online SC 2119, paragraph Nos.5, 7, 11, 35 & 36.
viii) Sitapur Shiksha Sansthan Risora through Registrar Dr. Manoj sha. Vs. State of U.P. through Principal Secretary Higher Education and others; Misc. Single No.6582 of 2019, order dated 07.03.2019.
30) Sri O.P.M. Tripathi, learned counsel for the respondent - NCTE submitted that after grant of approval by the NCTE and RCI for B.Ed. and B.Ed. Special Education (H.I.) Course, the affiliating University is not competent to reagitate the requirement for grant of recognition while granting affiliation to the petitioner's institution. In case the University came to know about some shortcomings existing in the institution, it may submit a report to the NCTE and RCI for cancellation of recognition of the institution in question.
31) He further submitted that upon inspection, the apex body found certain short-coming which was pointed out and fulfilled by the institution subsequently, therefore, the University does not have jurisdiction to refuse the affiliation.
32) Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record and the law reports relied upon by learned counsel for the parties.
33) Learned Senior Counsel for the petitioners placed reliance upon certain judgments, relevant paragraphs of which are being quoted below:
i) State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others (Supra):
"75. In our opinion, the observations that the provisions of Sections 82 and 83 of the Maharashtra University Act are "null and void" could not be said to be correct. To us, it appears that what the High Court wanted to convey was that the provisions of Sections 82 and 83 would not apply to an institution covered by 1993 Act. As per the scheme of the Act, once recognition has been granted by NCTE under Section 14(6) of the Act , every university ('examining body') is obliged to grant affiliation to such institution and sections 82 and 83 of the University Act do not apply to such cases."
ii) Chairman, Bhartia Education Society and another Vs. State of Himachal Pradesh and others (Supra) :
"15. The purpose of `recognition' and `affiliation' are different. In the context of NCTE Act, `affiliation' enables and permits an institution to send its students to participate in the public examinations conducted by the Examining Body and secure the qualification in the nature of degrees, diplomas, certificates. On the other hand, `recognition' is the licence to the institution to offer a course or training in teacher education. Prior to NCTE Act, in the absence of an apex body to plan and co-ordinate development of teacher education system, respective regulation and proper maintenance of the norms and standards in the teacher education system, including grant of `recognition' were largely exercised by the State Government and Universities/Boards. After the enactment of NCTE Act, the functions of NCTE as `recognising authority' and the Examining Bodies as `affiliating authorities' became crystallized, though their functions overlap on several issues. NCTE Act recognizes the role of examining bodies in their sphere of activity.
16. Section 14 of the NCTE Act requires recognition of the institution by the NCTE, before the institute could offer any course or training in teacher education. Sub-section (4) of Section 14 provides that every order granting or refusing recognition to an Institution for a course or training in teacher education under sub-section (3) shall be published in the Official Gazette and communicated in writing for appropriate action to such institution and to the concerned examining body, the local authority or the State Government and the Central Government. Sub-section (6) of section 14 requires every Examining Body on receipt of the order under sub-section (4), grant affiliation to the institution, where recognition has been granted; or cancel the affiliation of the institution, where recognition has been refused. Section 16 of NCTE Act provides that notwithstanding anything contained in any other law for the time being in force, no examining body shall grant affiliation whether provisional or otherwise, to any institution, or hold examination for a course or training conducted by a recognized institution, unless the institution concerned has obtained recognition from the Regional Committee of NCTE under section 14 or permission for a course or training under section 15 of the Act.
17. Sub-section (6) of section 14 no doubt mandates every examining body to grant affiliation to the institution on receipt of the order of NCTE granting recognition to such institution. This only means that recognition is a condition precedent for affiliation and that the examining body does not have any discretion to refuse affiliation with reference to any of the factors which have been considered by the NCTE while granting recognition. For example, NCTE is required to satisfy itself about the adequate financial resources, accommodation, library, qualified staff, and laboratory required for proper functioning of an institution for a course or training in teacher education. Therefore, when recognition is granted by NCTE, it is implied that NCTE has satisfied itself on those aspects. Consequently, the examining body may not refuse affiliation on the ground that the institution does not have adequate financial resources, accommodation, library, qualified staff, or laboratory required for proper functioning of the institution. But this does not mean that the examining body cannot require compliance with its own requirements in regard to eligibility of candidates for admissions to courses or manner of admission of students or other areas falling within the sphere of the State government and/or the examining body. Even the order of recognition dated 17.7.2000 issued by NCTE specifically contemplates the need for the institution to comply with and fulfil the requirement of the affiliating body and state government, in addition to the conditions of NCTE. We extract below conditions 4, 5 & 6 of the order of recognition issued by NCTE in this behalf :
"4. The admission to the approved course shall be given only to those candidates who are eligible as per the regulations governing the course and in the manner laid down by the affiliating University/State Government.
5. Tuition fee and other fees will be charged from the students as per the norms of the affiliating University/State Government till such time NCTE regulations in respect of fee structure come into force.
6. Curriculum transaction, including practical work/activities, should be organized as per the NCTE norms and standards for the course and the requirements of the affiliating University/Examining body."
The examining body can therefore impose its own requirements in regard to eligibility of students for admission to a course in addition to those prescribed by NCTE. The state government and the examining body may also regulate the manner of admissions. As a consequence, if there is any irregularity in admissions or violation of the eligibility criteria prescribed by the examining body or any irregularity with reference to any of the matters regulated and governed by the examining body, the examining body may cancel the affiliation irrespective of the fact that the institution continues to enjoy the recognition of the NCTE. Sub-section (6) of section 14 cannot be interpreted in a manner so as to make the process of affiliation, an automatic rubber-stamping consequent upon recognition, without any kind of discretion in the examining body to examine whether the institution deserves affiliation or not, independent of the recognition. An institution requires the recognition of NCTE as well as affiliation with the examining body, before it can offer a course or training in teacher education or admit students to such course or training. Be that as it may. "
iii) Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of U.P. and others (Supra):
"57. Under Section 14 and particularly in terms of Section 14(3)(a) of the Act, the NCTE is required to grant or refuse recognition to an institute. It has been empowered to impose such conditions as it may consider fit and proper keeping in view the legislative intent and object in mind. In terms of Section 14(6) of the Act, the examining body shall grant affiliation to the institute where recognition has been granted. In other words, granting recognition is the basic requirement for grant of affiliation. It cannot be said that affiliation is insignificant or a mere formality on the part of the examining body. It is the requirement of law that affiliation should be granted by the affiliating body in accordance with the prescribed procedure and upon proper application of mind. Recognition and affiliation are expressions of distinct meaning and consequences. In the case of Chairman, Bhartia Education Society v. State of Himachal Pradesh & Ors. [(2011) 4 SCC 527], this Court held that the purpose of recognition and affiliation is different. In the context of the Act, affiliation enables and permits an institution to send its students to participate in public examinations conducted by the examining body and secure the qualification in the nature of degrees, diploma and certificates. On the other hand, recognition is the licence to the institution to offer a course or training in teaching education. The Court also emphasised that the affiliating body/examining body does not have any discretion to refuse affiliation with reference to any of the factors which have been considered by the NCTE while granting recognition. "
"24. The authority of the States and the Universities established by the States to regulate the establishment and running of institutions imparting technical education has been a subject matter of a long debate in various judgments of this Court. Educational institutions imparting technical education are amenable to the control of AICTE under the 1987 Act in certain aspects and the regulatory authority of the State, and Universities established by or under a legislation of the State, in certain other aspects.
25. This Court in State of T.N. and Another v. Adhiyaman Educational & Research Institute and Others, (1995) 4 SCC 104, after considering the constitutional scheme of various entries of List I and List III of the Seventh Schedule and the language of the 1987 Act and the Madras University Act concluded that the 1987 Act is referable to Entry 66 of List I. The field of "determination of standards in institutions for higher education, or research and scientific and technical institutions" is exclusive to the Parliament and any law made by the Parliament referable to the said field is paramount. The 1987 Act empowers the AICTE, a body constituted under the said Act "to evolve suitable performance appraisal systems incorporating norms and mechanisms for maintaining accountability of the technical institutions" and lay down "norms and standards for courses, curricula, staff pattern, staff qualifications, assessment and examinations, fixing norms and guidelines for charging tuition fee and other fees, granting approval for starting new technical institutions or introducing new courses or programmes". This Court categorically held "Thus, so far as these matters are concerned, in the case of the institutes imparting technical education, it is not the University Act and the University but it is the Central Act and the Council created under it which will have the jurisdiction". Consequently, this Court held "after coming into operation of the Central Act" the provisions of any other State law overlapping on the area covered by the Central Act "will be deemed to have become unenforceable...". The argument that the State legislature can stipulate norms of higher standards even in those areas which are covered by the AICTE is clearly rejected by this Court.
27. The question of the authority of a University to grant or decline affiliation squarely fell for consideration before this Court in Bhartia Education Society v. State of H.P., (2011) 4 SCC 527. The case arose under the National Council for Teachers Education Act, 1993 (hereinafter referred to as "NCTE Act") the scheme of which is also identical to the AICTE Act. This Court held as follows:-
"19. ... On the other hand, "recognition" is the licence to the institution to offer a course or training in teacher education. Prior to the NCTE Act, in the absence of an apex body to plan and coordinate maintenance of the norms and standards in the teacher education system, Government and universities/boards. After the enactment of the NCTE Act, the functions of NCTE as "recognising authority" and the examining bodies as "affiliating authorities" became crystallised, though their functions overlap on several issues. The NCTE Act recognises the role of examining bodies in their sphere of activity."
v) Allahabad Radha Govind Maha Vidyalaya and another Vs. State of U.P. and others (Supra):
"19. After hearing learned counsel for the parties and after perusal of the relevant record, it appear that on scrutiny of applications, N.C.T.E. has granted recognition to the institution. On the said basis, Chancellor of the University vide its order dated 30.1.2003 has granted affiliation for B.Ed course for the session 2004. It appears that somebody was having enmity with petitioners and made certain complaint as well as filed a Public Interest Litigation before the Court. The said writ petition was disposed of by this Court with a direction to the State Government and other relevant authorities to make proper inspection regarding complaint and to make an enquiry in accordance with law and to pass appropriate orders. It also appears from the record that Vice-Chancellor of the University directed the Registrar to proceed with the matter and Three Member Committee was constituted inquiring into th eallegation made against petitioners college. The Three member Committee submitted a report and a show cause notice was issued to petitioners. Petitioners submitted a reply and the order was passed for withdrawal of affiliation and the same was communicated by Vice-Chancellor vide its order dated 25.5.2007. Section 14(1) of the National Council for Teachers Education Act, 1993 provides regarding the recognition on the basis of certain norms provided under the Act. From perusal of the aforesaid provision it appears that where the college is recognised by N.C.T.E, unless and unti something is found otherwise, an affiliation is to be granted by the examining body. While considering the claim after recognition given by N.C.T.E., if the University is of the opinion that particular institution I snot fulfilling the norms, as provided, then Section 17 provides that on the basis of representation or suo-motu, recognition can be withdrawn. Under the State Universities Act, Sub-section (7) of Section 37 provides that Executive Council may direct affiliated college to inspect or to take action, if necessary, within a specific period and to give a notice to that effect and if direction of the Executive Council under Sub-section (7) is not fulfilled then action can be taken under Sub-section (8) of Section 37 of the Act. Section 37 itself provides regarding the procedure which is to be adopted by respondent-University while withdrawing affiliation of the college. Sub-section (70 of Section 37 provides that after inspection, if something is found lacking, Executive Council may direct an affiliated college to take necessary steps accordingly. Sub-section (8) provides that if the college fails to comply the direction of Executive Council, after obtaining the report from the management and with the prior sanction of the State Government, affiliation can e withdrawn. But form the record it appear that procedure prescribed has not been followed by respondents. The order impugned has been communicated by the Registrar only stating the fact that the decision has been taken by Executive Council to withdraw the affiliation. Further it has to be noted that the Division Bench of this Court while disposing of the writ petition has directed that the matter be enquired and a final decision in the matter in pursuance of the report of the Enquiry Committee dated 24.4.2006 and 19.5.2006 be taken expeditiously and to refer the matter for further action to the appropriate statutory authority. The contention of petitioners to this effect appears to be correct that intention of the Court was regarding reference to the authority under Section 17 of the National Council for Teachers Education Act, 1993 but it has not been done so and decision has been taken by respondent No.1. From the record, it doesn not appear that matter was referred to Executive Council for taking a decision in an appropriate manner. It also appears that from the office of the Governor, a letter was sent on 7th August, 2006 to the Registrar of the University to take action against petitioners institution under Section 17(8) of the Universities Act after making an inquiry. On that basis it appears that Registrar of the University sent a letter dated 28.10.2006 to the institution for submitting a reply. Reply was submitted by petitioners but in the meantime, on 14.11.2006, Registrar of the University has requested the Chancellor to cancel the affiliation of petitioners institution and it appears that on the basis of that recommendation, the order impugned has been passed and communicated to petitioners. There is nothing on record to show that decision on the basis of relevant report submitted by the Enquiry Committee was considered by Executive Council who is the relevant authority to pass the appropriate orders. From the perusal of Clause 8, it also appears that order can be passed withdrawing or curtailment with the previous sanction of Chancellor by the Executive Council in accordance with provisions of the statute. From the perusal of the order impugned it does not appear that proper procedure has been followed. Further the Apex Court judgment relied upon by petitioners in State of Maharashtra (supra) held that in case, recognition has been granted by N.C.T.E., the University was bound to grant affiliation whenever permission was granted under Section 14. The University authorities are bound to grant affiliation. The Apex Court has further held that once the recognition has been granted by N.C.T.E. Under Section 14(6) of the Act, every University (examining body) is obliged to grant affiliation to such institution.
20. In view of the aforesaid fact, I am of opinion that order impugned cannot be sustained as from the record it appears that Executive Council has not taken a decision in a proper manner as provided and if University authority on the basis of complaint and inspection has come to the conclusion that petitioners institution does not fulfil the cirteria, as required, after making inspection should have submitted a report to the National Council of Teachers Education for passing the appropriate orders. Once recognition has been given, affiliation nca be withdrawn in a proper manner provided under the statute. If it has not been adopted, the order passed by respondents will not be just and proper."
vi) Sattar Memorial College of Education through its Principal Vs. State of Bihar and others (Supra):
"5. After going through the judgment of the Apex Court, this Court finds that the law in this regard has bene authoritatively laid down therein. The Apex Court has considered the overriding effect of the NCTE Act and its provisions over any other State Legislation and, after referring to a large number of earlier pronounce-merits, it has clearly held that the examining body i.e. University has to grant affiliation to an institution the moment the order of the NCTE granting recognition is received with the University. The Apex Court has made it clear that any no objection certificate from the State required under Regulation 16 is only to enable the State Government to furnish facts and figures in respect of the institution to the NCTE for its consideration and , after NCTE Act came into force, the State Government has also no liberty to object or refuse no objection certificate to an institution which may have applied for recognition by the NCTE. In view of the law laid down by the Apex Court itself, this Court firnds that the Respondent University had no other option than to grant affiliation to the colleges in question after the Colleges received recognition from the NCTE.
6. However, the learned Counsel for the University submits that the recognition letter of the NCTE itself clearly mentioned that recognition was subject to fulfillment of certain conditions by the colleges which necessarily includes the guidelines of the University Grants Commission also. He submits that even if it is accepted that the University has to grant affiliation to a College which has received recognition from the NCTE, it can always take steps to ensure that the college fulfils all the other conditions for affiliation by the University as laid down in any other law in operation, in the field including the guidelines of the UGC.
7. This may be so and learned Counsel for the Petitioners also do not dispute this role of the University in the matter. But this is not disputed by the learned Counsel for the University also that, iven in case the University finds that the college in quetsion is not complying with any requirements of law or provisoins of any other law for permanent affiliation to the college or is not ocmplying with nay guide-lines of the UGC, the affiliation cannot be refused to the college or can be cancelled. He accepts that in such a case where the University find that, in spite of all the steps taken by the University, the College has not fulfilled the necessary requirements or is not complying with the requirements of any other law for the time being in force, the University has only an option to refer the matter to the NCTE for proper action or withdrawal of the same. But till then the affiliation has to continue.
8. This being the legal position and as accepted by learned Counsel for the parties, this Court has no other option than to direct the University to grant affiliation to the three colleges positively within one month from the date of receipt/production of a copy of this order till the time recognition of the NCTE is continuing in their favour. However, this will not come in the way of the University to issue necessary directions and instructions and to take such other steps in respect of the colleges which may be required for compliance of any other law for the time being in force or for fulfilling any other conditions laid down in any other law for such colleges.
9. The writ applications are allowed with the aforesaid observations and directions."
vii) Awadh Center of Education for Women, Sant Kabir Nagar and another Vs. State of U.P. and others (Supra):
"20. The recognition and affiliation of an institution or a course of study are conceptually two different things. The recognition has to be granted by the NCTE on fulfilment of the norms/conditions laid down by the NCTE Act as provided by Section 14/15 of the said Act or the Regulations framed and notified thereunder. The affiliation comes later on. Section 16 of the NCTE Act provides for the grant of affiliation by the State Government/Affiliating Body after recognition by the NCTE for the purposes of holding Examinations.
21. The recognition granted to the petitioner no. 1 to run the BTC course with the intake of 50 students per annum, as stated earlier was of a permanent nature and was not cancelled or revoked by the NCTE. Once its recognition continues, the State Government can not suo motu cancel its affiliation on the ground that it fails to fulfil the changed conditions prescribed by the NCTE. In the event the institution fails to comply with the changed conditions of recognition as prescribed by NCTE, it is upto the NCTE to first take action for withdrawal of recognition. This has not been done. The affiliation is based upon recognition. Therefore, when on account non fulfilment of revised conditions the NCTE had not taken any steps for withdrawing recognition of petitioner no. 1, the State Government is not competent to revoke the affiliation. In such a situation, the only course open to the State Government was to have written to the NCTE for necessary action and to have waited for it before cancelling the affiliation of petitioner no. 1.
22. Even if the new or revised norms and conditions as may be laid down are to be followed, the authorities are legally bound to issue notice to the institution concerned pointing out the change in the norms and conditions and to grant it sufficient time atleast a year as has been prescribed to abide by the same. However, neither from the record nor from the impugned office order it is clear that any such intimation/notice was given or any time was granted to the petitioner no. 1 to comply with the changed terms and conditions/norms of the recognition/grant of affiliation.
23. The instant office order has been passed in pursuance of the order of the High Court but only by giving opportunity of hearing to the petitioners but without giving notice of the changed norms and conditions and opportunity to comply with the new conditions.
24. In the case of absence of such a notice and opportunity to comply with the revised norms, on the doctrine of fair play and principle of natural justice, the affiliation of the institution certainly can not be cancelled.
25. In view of the aforesaid facts and circumstances, first for the reason that the recognition/affiliation which was granted to petitioner no. 1 earlier stood saved by Sub-clause 3 of Regulation 13 of the Regulations 2009; secondly, for the reason that before cancelling the affiliation, the petitioners were not given any notice or opportunity to comply with the revised norms and conditions as has been laid down by Regulations, 2009; and lastly, as the NCTE itself had not withdrawn the recognition, the State Government was not competent to revoke the affiliation, therefore, the impugned office order dated 6.6.2014 can not be sustained in law.
26. Accordingly, office order dated 6.6.2014 (anneure 17 to the petition) is quashed with the direction to respondent no. 1 to ensure that the revised norms as laid down by Regulations of 2009 are complied with by the petitioners in the shortest possible time. "
viii) Committee of Management Babu Baijnath Singh Maha Vidyalaya and another Vs. State of U.P. and others (Supra):
"56. Accordingly, I find that the principles established by the abovementioned decisions clearly indicate that in respect of infrastructure, land building, laboratory, library, etc. if the NCTE is satisfied and it grants recognition then the University cannot re-examine the same on the basis of its First Statutes or Government orders. Therefore, in my view, the NCTE has a last word on the issue of grant of recognition and it cannot be denuded of that authority on the ground that the State or the University has not given its NOC. If the University is satisfied that the college has secured the recognition from the NCTE by fraud or misrepresentation which is grave in nature, it can point out to the NCTE, which shall take appropriate decision after furnishing opportunity to the college. The University has no authority to hold a parallel enquiry and refuse the affiliation. The University has an important role in respect of admission and examination. The law laid down in the aforesaid cases can be culled out in the following terms:
(I) NCTE Act is a Central Act. Wherever the State laws are irreconcilable with the Central law, the State law must give way in favour of the Central law to the extent of repugnancy. This will show the supremacy of the Central law in relation to provisional education, including the teachers training programmes.
(II) Where the provisions of the State Act overlap and are in conflict with the provisions of the Central Act in various areas, the matters which are specifically covered under the Central Act shall prevail.
(III) The provisions of the Universities Act requiring the University to obtain merely the views of the State Government would not be characterised as requiring approval of the State Government.
(IV) The teachers' education and the matters connected therewith are fully covered and completely occupied by the NCTE Act, hence the State legislature can not encroach upon that field.
(V) The NCTE Act is referable to Schedule VII List I Entry 66. Hence, no law enacted by the State, which is in conflict with the Central law, can be permitted to be operative.
(VI) The examining body/University can impose conditions in relation to its own requirements regarding eligibility of students for admission, conduct of examinations, the manner in which the prescribed courses should be completed and to see that the conditions imposed by the NCTE are complied with by the institution.
(VII) If the NCTE grants recognition under Section 14, the affiliation by the University is not automatic. The University may insist to comply its requirements. In case it is held that the affiliation is automatic, it will erode the autonomy of the University. "
ix) Committee of Management Chaudhary Mahavir Prasad Maha Vidyalaya and another Vs. State of U.P. and others (Supra):
"Learned counsel for petitioners submits that recognition has already been granted by National Council for Teacher Education (NCTE). An order was passed by the State Government cancelling temporary affiliation then they challenge the said order before the Division Bench of this Court and Division Bench of this Court vide its order dated 26.7.2007 quashed the order and remanded the matter to authority concerned. Further a specific order was passed that temporary affiliation passed earlier shall continue. Now learned counsel for petitioners states that on the basis of direction issued by this Court, order impugned has been passed almost giving same reasoning and same grounds. No other specific ground has been taken. Petitioners have placed reliance upon a Division Bench Judgement of this Court who considered the issue and has placed reliance upon a particular paragraph of the observations made by the Court. The same is being quoted below:-
"He draws the attention of the Court towards the provisions of Section 2 (d) of the NCTE Act read with Section 14(3)(4) and (6) and also Section 37(2) as amended by the State University Act and submits that the State Government is only to grant prior sanction beyond and that it has no power to cancel affiliation or grant affiliation which has to be done by the Examining Body, namely, the University which action would again depend upon the order of the NCTE in terms of the aforesaid provisions. He further says that institution once has been granted recognition and also affiliation, then for the irregularity and illegality committed by the institution the matter should be reported to the NCTE which may cancel recognition and consequently affiliation will be cancelled by the Examining Body and not by the State Government and that the examining body also cannot curtail the tenure of recognition by giving affiliation peace meal. He has also relied upon the case of State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others (2006) 9 Supreme court Cases 1 in support of his plea, that once recognition has been granted by the NCTE, the examining body has to grant the affiliation."
In such circumstances, learned counsel for petitioners submits that once affilation has been granted and that has not been cancelled by National Council for Teacher Education (NCTE), recognition cannot be withdrawn on the ground of some irregularity committed by the institution and if something comes in the knowledge of affiliating authority, matter has to be reported to the National Council for Teacher Education (NCTE). Further learned counsel for petitioners has submitted that permanent affiliation cannot be refused only on the ground of act done by petitioners' institution in the academic year 2007-08.
In such circumstances, I am of opinion that petitioners ae entitled for interim relief. "
x) Isabella Thouburn College and another Vs. State of U.P. and others (Supra):
"Section 38 of the State Universities Act does not prescribe any time bound association unlike the amended Section of 37(2) wherein sub-clause 10 has been introduced for grant of temporary affiliation and also in view of the division bench judgment of this court passed in Writ Petition No. 5881 (M/B) /2002 (Committee of Management vs. Chancellor) either the permanent affiliation was to be granted or the application should have been rejected but no temporary affiliation could have been granted. The division bench at that time was considering the unamended statute which is analogous to provisions of Section 38 of the Act. However, after amendment a specific provision has been made for granting temporary affiliation under Section 37(2) whereas no such corresponding amendment has been made in Section 38 of the Act.
The argument of learned counsel for the petitioner is that the 'Association' granted, need to be taken as permanent 'association'.
We are prima facie satisfied that only permanent permission could have been granted to the college for running these courses and, therefore, provide as an interim measure that the petitioner college shall be allowed to run the course of M.Sc. ( Bio-technology) and M.A. (Economics) respectively, till further orders of the court.
However, without prejudice to the claim of either parties with respect to interpretation of Section 38 and consequence thereof we provide further that in the meantime the second inspection shall be made by the university which we expect shall be done within a period of four weeks from today and the necessary recommendation same shall be forwarded to the State Government for necessary consideration who shall take a decision within a maximum period of two weeks from the date of receipt of the said recommendation. "
xi) Committee of Management Dr. M.C. Saxena College of Education and another Vs. State of U.P. and others (Supra):
"3. Thus, this Court found that the association for B.Ed. course to the petitioner institution was without any stipulation and institution was fully eligible to admit students. Despite the said condition, the University did not withdraw the condition of the temporary association from the petitioner institution. Thereafter, petitioner filed a Contempt Petition No.2804 (C) of 2014 which is pending till date. Despite the aforesaid order dated 02.07.2013, the University, finding certain deficiencies in the institution and treating the institution to be temporarily associated, refused to send its name for registration and for counselling.
4. It was put to learned counsel for the University to place before this Court the provisions by which University can grant a temporary association.
5. Learned counsel for the University could not place any such provisions before the Court. Time was granted to the respondent University by order dated 03.07.2019 to take decision on the issue as to whether temporary association could be given to the petitioner or the same should be treated to be a permanent association. Despite the aforesaid order, the University has not instructed the counsel on the said issue till date. Even otherwise the entire controversy was concluded by judgment and order dated 02.07.2013 passed in earlier Writ Petition No.4125 (M/S) of 2013 which was never challenged by the university.
6. Thus, I find that the petitioner institution is an associated institution of the University and shall remain associated with the University till University withdraws the association as per the procedure provided under Section 38(7) of the State Universities Act.
7. Admittedly, in the present case, no procedure has been adopted with regard to disassociation of the petitioner institution. Hence, petitioner institution is declared to be an associated institution of the respondent University. The said status shall continue till University passes appropriate orders under Section 38(7) of the State Universities Act. "
"8. The following points arise for consideration :
(1) Whether in view of the judgment of this Court in State of Tamil Nadu & Another v. Adhiyaman Educational & Research Institute & Others, [1995] 4 SCC 104, the provisions of the AICTE Act, 1987 occupied the field and it was not necessary to obtain the further approval of the Government or other authority? Whether any statute in the State of Kerala if it required such approval, would be void?
(2) Whether the orders of rejection passed by the State Government were valid on merits and whether the University should have granted further orders to continue the affiliation solely on the basis of the AICTE permission?
28. Admittedly, the University's inspection report was in favour of the appellant. This is clear from the appellant's letter dated 31.5.95 to the State Government. The only requirement as per the statute 9(7) was for the University to obtain the "views" of the State Government. Obtaining the 'views' of the State Government, as already stated, did not amount to obtaining its 'approval'. Procedure and conditions for affiliation could not be inconsistent with the provisions of the Central Act, in particular section 10(k) of the Regulation, and the University could not seek approval of Government. The University was also one of the agencies consulted by the council of the AICTE under Regulation 8. Once that was over, and approval was granted by the AICTE, if there was any default on the part of the College in compliance with the conditions of approval, the only remedy for the Univer-sity was to bring those facts to the notice of the AICTE so that the latter could take appropriate action.
29. Reliance for the respondent was placed upon the subsequent report of the Syndicate dated 7.8.97. This report no doubt pointed out that the appellant had not complied with certain conditions mentioned in the approval dated 30.4.95 granted by the AICTE. Assuming certain fresh facts had come to the notice of the University, it could only place the said facts before the AICTE.
30. Thus, the University ought to have considered the grant of final or further affiliation without waiting for any approval from the State Govern-ment and should have acted on the basis of the permission granted by AICTE and other relevant factors in the University Act or statutes, which are not inconsistent with the AICTE Act or its Regulations.
31. For the aforesaid reasons, we set aside the judgment of the Division Bench of the High Court and uphold the reasoning of the learned Single Judge in his judgment in OP - 4612/96 dated 14.1.1997. We hold that the approval of the AICTE was sufficient, we do not also think that it was necessary for the learned Single Judge to direct the State Government to reconsider its decision. The learned Single Judge's order quashing the letter of the State Government dated 16.8.96 is upheld. The direction to the Mahatama Gandhi University to consider the application of the appellant for final affiliation or continuance of affiliation is confirmed and this is to be done on the basis of the approval granted by the AICTE dated 30.4.95, or any other relevant factors in the University Act or its statutes, which are not inconsistent with the AICTE Act or its Regulations. "
34. In support the submissions advanced, Sri Manish Kumar, learned Senior Counsel for the respondent - University relied upon certain judgments, which are as under:
i) Committee of Management, Anuragi Devi Degree College and another Vs. State of U.P. and another; 2016 (12) SCC 517, paragraph Nos.12 and 17.
"12. And again: (Maa Vaishno Devi Mahila Mahavidyalaya case, SCC p. 653, paras 67-69)
67. In the present case, we are concerned with the provisions of the NCTE Act which is a Central legislation referable to Schedule VII List I Entry 66. Thus, no law enacted by the State, which is in conflict with the Central law, can be permitted to be operative.
68. Now, let us examine the conflict that arises in the present cases. In terms of the provisions of the Act, the Regional Committee is required to entertain the application, consider State opinion, cause inspection to be conducted by an expert team and then to grant or refuse recognition in terms of the provisions of the Act. Once a recognition is granted and before an institution can be permitted to commence the course, it is required to take affiliation from the affiliating body, which is the university.
69. Thus, grant of recognition or affiliation to an institute is a condition precedent to running of the courses by the institute. If either of them is not granted to the institute, it would not be in a position to commence the relevant academic courses. There is a possibility of some conflict between a University Act or Ordinance relating to affiliation with the provisions of the Central Act. In such cases, the matter is squarely answered in Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya where the Court stated that after coming into operation of the Central Act, the operation of the University Act would be deemed to have become unenforceable in case of technical colleges. It also observed that provision of the Universities Act regarding affiliation of technical colleges and conditions for grant of continuation of such affiliation of technical colleges and conditions for grant of continuation of such affiliation by the university would remain operative but the conditions that are prescribed by the university for grant and continuation of affiliation must be in confirmity with the norms and guidelines prescribed by NCTE.
17. The controversy does not end here. The stand of the University is that the appellant College has admitted students without having the necessary affiliation for the academic session 2015-2016. This kind of conduct has become a disease, and when the conduct becomes a disaster, it is a disastrous phenomenon. While dealing with admissions without affiliation from CBSE, the Court in Sunil Oraon v. CBSE referred to earlier decisions and was constrained to state thus: (SCC p. 682, para 23) "23. Time and again, therefore, this Court had deprecated the practice of educational institution admitting the students without requisite recognition or affiliation. In all such cases the usual plea is the career of innocent children who have fallen in the hands of the mischievous designated school authorities. As the factual scenario delineated against goes to show the school has shown scant regards to the requirements for affiliation and as rightly highlighted by learned counsel for the CBSE, the infraction was of very serious nature. Though the ultimate victims are innocent students that cannot be a ground for granting relief to the appellant."
ii) Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of U.P. and others (Supra):
"68. Now, let us examine the conflict that arises in the present cases. In terms of the provisions of the Act, the Regional Committee is required to entertain the application, consider State opinion, cause inspection to be conducted by an expert team and then to grant or refuse recognition in terms of the provisions of the Act. Once a recognition is granted and before an Institution can be permitted to commence the course, it is required to take affiliation from the affiliating body, which is the University.
69. Thus, grant of recognition or affiliation to an institute is a condition precedent to running of the courses by the Institute. If either of them is not granted to the institute, it would not be in a position to commence the relevant academic courses. There is a possibility of some conflict between a University Act or Ordinance relating to affiliation with the provisions of the Central Act. In such cases, the matter is squarely answered in the case of Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra) where the Court stated that after coming into operation of the Central Act, the operation of the University Act would be deemed to have become unenforceable in case of technical colleges. It also observed that provision of the Universities Act regarding affiliation of technical colleges and conditions for grant of continuation of such affiliation by university would remain operative but the conditions that are prescribed by the university for grant and continuation of affiliation must be in conformity with the norms and guidelines prescribed by the NCTE.
70. Under Section 14 and particularly in terms of Section 14(3)(a) of the Act, the NCTE is required to grant or refuse recognition to an institute. It has been empowered to impose such conditions as it may consider fit and proper keeping in view the legislative intent and object in mind. In terms of Section 14(6) of the Act, the examining body shall grant affiliation to the institute where recognition has been granted. In other words, granting recognition is the basic requirement for grant of affiliation. It cannot be said that affiliation is insignificant or a mere formality on the part of the examining body. It is the requirement of law that affiliation should be granted by the affiliating body in accordance with the prescribed procedure and upon proper application of mind. Recognition and affiliation are expressions of distinct meaning and consequences. In Bhartia Education Society v. State of Himachal Pradesh this Court held that: (SCC p.534, para 19) "19. the purpose of recognition and affiliation is different. In the context of the Act, affiliation enables and permits an institution to send its students to participate in public examinations conducted by the examining body and secure the qualification in the nature of degrees, diploma and certificates. On the other hand, recognition is the licence to the institution to offer a course or training in teaching education."
The Court also emphasised that the affiliating body/examining body does not have any discretion to refuse affiliation with reference to any of the factors which have been considered by the NCTE while granting recognition.
77.. The fields which are sought to be covered under the provisions of Section 37 of the Universities Act and the Statutes of various universities are clearly common to the aspects which are squarely covered by the specific language under the Act. That being so, all State laws in regard to affiliation in so far as they are covered by the Act must give way to the operation of the provisions of the Act. To put it simply, the requirements which have been examined and the conditions which have been imposed by the NCTE shall prevail and cannot be altered, re-examined or infringed under the garb of the State Law. The affiliating/examining body and the State Government must abide by the proficiency and command of the NCTE's directions. To give an example, existence of building, library, qualified staff, financial stability of the institution, accommodation, etc. are the subjects which are specifically covered under Section 14(3)(b) of the Act. Thus, they would not be open to re-examination by the State and the University. If the recognition itself was conditional and those conditions have not been satisfied, in such circumstances, within the ambit and scope of Sections 46 and 16 of the Act, the affiliating body may not give affiliation and inform the NCTE forthwith of the shortcomings and non- compliance of the conditions. In such situation, both the Central and the State body should act in tandem and, with due coordination, come to a final conclusion as to the steps which are required to be taken in regard to both recognition and affiliation. But certainly, the State Government and the University cannot act in derogation to the NCTE.
78. Now, we may deal with another aspect of this very facet of the case. It is a very pertinent issue as to what the role of the State should be after the affiliation is granted by the affiliating body. We have already discussed that the State opinion, as contemplated under Section 37 of the University Act, to the extent it admits to overreach, is reconcilable and its results are not in its orientation to the directives of the NCTE are void and inoperative to the extent they can be resolved in which case clear precedence is to be given to the directives of the NCTE during such resolution. The opinion of the State, therefore, has to be read and construed to mean that it would keep the factors determined by the NCTE intact and then examine the matter for grant of affiliation. The role of the State Government is minimised at this stage which, in fact, is a second stage. It should primarily be for the University to determine the grant or refusal of affiliation and role of the State should be bare, minimum non- interfering and non-infringing."
iii) Committee of Management Shri Sai Sansthan, Sri Sirdi Sai Baba Mandir, Agra and others Vs. Deputy Registrar, Firms, Societies and Chits, Agra and another (Supra):
"10. Nevertheless in the light of the subsequent developments which had taken place, I do not intend to interfere with the impugned order by invoking extraordinary jurisdiction under Article 226 of the Constitution; for the simple reasons that the Society which was constituted for the laudable cause has been reduced to a farce; its funds were squandered; account books and statements were not properly maintained and the democratic functioning of the Society was throtled by not convening the regular annual and general meetings. Those persons who were required to take active part in the running of the Society were kept at bay from the affairs of the society. A handful of persons grabbed the funds and the properties of the Society. The adhyaksh of the Society found it difficult to control its unbidled members or office bearers and sore, as she was, ultimately relinquished the office. The present writ petition has been filed to espouse the cause of the wrongdoers who have virtually denatured, denigrated or ruined the Society. This Court, therefore, feels reluctant to grant relief to those persons who themselves are wrongdoers. Moreover, pursuant to the impugned order of Dy. Registrar respondent no.1 a new elected body has come into existence of which Sasrva Sri R.D. Agarwal, Pawan Goyal and Navneet Bansal are respectively the Pesident, Secretary and Treasurer. With the help of the executive authorities they have come in the effective control of the affairs of the temple and its properties on 28.11.2000. The affairs of the Society are now being managed by the newly elected body. The impugned order dated 13.11.2000 stands exhausted. In view of the election of the new body, the advisory committee which was granted recognition and validity by the Dy. Registrar has ceased to function."
iv) Ashok Kumar Sonkar Vs. Union of India and others (Supra):
"34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity.
35. We have noticed hereinbefore that in making appointment of the appellant, the provisions of Articles 14 and 16 of the Constitution and statutory rules were not complied with. The appointment, therefore, was illegal and in that view of the matter, it would be wholly improper for us to invoke our equity jurisdiction.
36. Mr. Shekhar is also not correct in contending that the University had supported the case of the appellant. It was categorically stated by the University in its counter affidavit that the writ petition being devoid of any merit should be dismissed. In any event, we have ourselves taken into consideration the merit of the matter and in that view of the matter the stand of the University either before the Visitor or in the writ proceedings initiated by Respondent No. 4 is wholly irrelevant."
v) National Council for Teacher Education and another Vs. Venus Public Education Society and others (Supra):
"33. Now, to the last plank of submission of the learned counsel for the appellant. It is urged by him that the NCTE had procrastinated its decision at every stage and such delay was deliberate and, therefore, the society was compelled to admit the students and impart education, regard being had to the fact that there were really no deficiencies. As has been laid down in many a pronouncement of this Court that without recognition from the NCTE and affiliation from the university/examining body, the educational institution cannot admit the students. An educational institution is expected to be aware of the law. The students who take admission are not young in age. They are graduates. They are expected to enquire whether the institution has recognition and affiliation. If we allow ourselves to say so, the institution had given admission in a nonchalant manner. Possibly, its functionaries harboured the idea that they had incomparable fertile mind. The students who had taken admission possibly immersed with the idea that ignorance is a bliss. It is also necessary to state that the institution had the anxious enthusiasm to commercialize education and earn money forgetting the factum that such an attitude leads to a disaster. The students exhibited tremendous anxiety to get a degree without bothering for a moment whether their effort, if any, had the sanctity of law. Such attitudes only bring nemesis. It would not be wrong to say that this is not a case which put the institution or the students to choose between Scylla and charybdis. On the contrary, both of them were expected to be Argus-eyed. The basic motto should have been "transparency". Unfortunately, the institution betrayed the trust of the students and the students, in a way, atrophied their intelligence. The institution decidedly exhibited characteristics of carelessness. It seems that they had forgotten that they are accountable to law. The students, while thinking "vision of hope", chose to play possum. The law does not countenance either of the ideas. Hence, the plea propounded with anxiety, vehemence and desperation on behalf of the appellant is not acceptable and, accordingly we unhesitatingly repel the same.
34. Before parting with the case, we are obliged to state that the NCTE should have acted in quite promptitude, for a statutory authority which is conferred with the power, is required to act within the parameters of law and the directions given by the court and further not to create a feeling among the educational institutions that they are harassed. This Court expects that the NCTE shall function with propriety regard being had to the statutory responsibility bestowed on it by the Parliament. Its actions neither should show arbitrariness nor should it reflect any indulgence. Objectivity, reliability and trust are to be the motto of the NCTE and the committees working under it. We say no more on this score."
vi) Sunil Oraon (Minor) Through Guardian and others Vs. CBSE and others (Supra):
"23. Time and again, therefore, this Court had deprecated the practice of educational institution admitting the students without requisite recognition or affiliation. In all such cases the usual plea is the career of innocent children who have fallen in the hands of the mischievous designated school authorities. As the factual scenario delineated against goes to show the school has shown scant regards to the requirements for affiliation and as rightly highlighted by learned counsel for the CBSE, the infraction was of very serious nature. Though the ultimate victims are innocent students that cannot be a ground for granting relief to the appellant. Even after filing the undertakings the School non-challantly continued the violations. "
Vii) Nehru Gram Bharati University Vs. State of U.P. (Supra):
"5) These writ petitions were dismissed by the single Judge of the High Court. Thereagainst, intra-court appeals were filed. The Division Bench, under the impugned judgment dated March 31, 2017, has dismissed the Special Appeals holding that the Deemed University was not legally authorised to start the BTC Course for the Academic Session 2008-09 and 2009-10 respectively in the absence of strict compliance of the letter of recognition dated August 16, 2005 as also in view of it having itself asked for recognition from the examining body, i.e. State/SCERT and recognition, in fact, was granted under the letter dated May 29, 2013 for the Academic Session 2012-13. However, the Division Bench took into account the plight of the students caused due to negligence on the part of the Deemed University and, therefore, directed that each respondent-student be paid Rs.50,000/- by the Deemed University in addition to refund of the entire fee which was paid for the two years BTC Course in 2008-09 and 2009-10 respectively. The Division Bench also directed that the money be paid through account payee cheque within two months from the date of the judgment. "
7) It so happened that the Central Government vide notification dated June 27, 2008 declared the Post Graduate College as a Deemed University with the change of name as Nehru Gram Bharati Deemed University. The College was deaffiliated from the Kanpur University. The Deemed University made a request to the North Regional Committee to change the name of the institution as mentioned in the permission letter dated August 16, 2005. Such change in name was granted by the North Regional Committee and communicated to the Deemed University vide its letter dated December 02, 2008. The Deemed University is stated to have published an advertisement inviting applications for admission to two years BTC Course for the Academic Session 2008-09 and similarly issued advertisement for the Academic Session 2009-10.
11) On behalf of the students, the basic contention raised before the Court was that once permission was granted under Section 15(3) of the NCTE Act in favour of the Post Graduate College which was subsequently converted into a Deemed University for starting of the two years BTC Course, the issue of seeking affiliation/recognition from the examining body became redundant after issuance of the notification dated June 27, 2008 whereby the Post Graduate College was declared as a Deemed University. It was contended that the Deemed University has a right to conduct its own examination, therefore, no approval is required from any authority for conduct the examinations in respect of two years BTC Course offered by the Deemed University subsequent to the notification dated June 27, 2008 and in view of the law laid down by this Court in the case of State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors. 1 as also in view of the Division Bench judgment of the High Court of Judicature at Allahabad in Special Appeal No. 1639 of 2007 (State of U.P. & Ors. v. Dau Dayal Mahila P.G. College & Ors.) decided on July 31, 2009 and in the case of State of U.P. & Ors. v. Furqan Ali & Ors.2.
35) We also do not agree with the contention of Mr. Dwivedi that since the policy of fulfilling the conditions was set aside by the single Judge of the High Court vide judgment dated May 8, 2007 and this decision was affirmed by the Division Bench on July 31, 2009, it no more remained an obligation upon Deemed University to fulfill those conditions. On this very aspect, the High Court in the impugned judgment had rightly pointed out that in the aforesaid judgment dated July 31, 2009 rendered by the Division Bench of the High Court, a direction was issued requiring the State Government to formulate a policy and not to create any impediment of running a BTC Course by private institutions also, who fulfill the norms prescribed by NCTE. Thus, fulfillment of norms prescribed by NCTE was necessary. The impugned judgment also points out that the Division Bench in the aforesaid judgment dated July 31, 2009 has clarified that mere grant of permission by NCTE does not amount to automatic affiliation for running the BTC Course, until and unless the institution fulfills the norms which are prescribed by the NCTE. This Deemed University had also admitted in its counter affidavit filed before the High Court that the State Government, in terms of the Division Bench judgment dated July 31, 2009, took a policy decision to grant recognition/affiliations to private institutions also for imparting training of BTC Course under Government order dated January 15, 2010. As a corollary, it follows that there was no question of granting recognition to the private institutions upto January 15, 2010 for BTC Course in the State of Uttar Pradesh. As this was the legal position prevailing, coupled with the fact that the Deemed University approached the NCTE/SCERT for recognition of BTC Course and is given the said recognition only from the year 2012 onwards, the admission of students in BTC Course for the Academic Sessions i.e. 2008-09 and 2009-10 was not permissible and such degrees cannot be treated as validly recognised. It may be harsh for the students who took admission in the Academic Sessions 2008-09 and 2009-10. However, the Court cannot countenance the position where the unrecognised course is given imprimatur of validity only on the ground of equity. Because of this reason itself, the High Court has awarded compensation to the students. Therefore, we find it difficult to agree to the submissions advanced by Mr. Parekh on behalf of the students as well.
36) In view of the aforesaid discussion, it is not possible to accede to the request of the Deemed University to waive the order of compensation made by the High Court. As a result, all these appeals are bereft of any merit and are accordingly dismissed.
viii) Sitapur Shiksha Sansthan Risora through Registrar Dr. Manoj sha. Vs. State of U.P. through Principal Secretary Higher Education and others (Supra):
"So far as the submission raised by the learned counsel for the petitioner regarding delay which has occurred at the end of the University authorities in taking steps such as approval of the faculty members etc is concerned. if the petitioner-institution had any grievance, it would have approached the appropriate authority or even this Court by instituting appropriate proceedings against the University, however, at this juncture, such a complaint by the petitioner-institution against the authorities of the University will not regularize the admission of 28 students who have been admitted without the petitioner-institution having been affiliated by the University.
The Court may also take note of Clause-6 of the letter dated 30.05.2016 issued to the petitioner-institution by the Registrar of the University, which is extracted herein below:
"विश्विद्यालय द्वारा सम्बंधित पाठ्यक्रम में सम्बद्धता आदेश प्रदान करने एवं सीट्स आवंटन तथा कक्षा सञ्चालन की अनुमति के पश्चात ही प्रवेश सुनिश्चित किया जायेगा"
The provision contained in the afore-quoted clause-6 of the letter dated 30.05.2016 clearly provides that the petitioner-institution shall make any admission only once the order of affiliation is granted and seats are allotted and permission to run the classes is also given. It is not that the petitioner was not aware of the legal position that the petitioner-institution could not have admitted the students without being admitted to the privileges of affiliation of the University. It was very well made known to the petitioner-institution by the University by means of letter dated 30.05.2016 that it shall not admit any student unless it is affiliated by the University. The petitioner-institution has admitted 28 students in B.Sc. (Biology) course knowing fully well that it would be legally impermissible and the same would not confer any right on the petitioner-institution or even upon the students to take examination to be conducted by the University concerned.
In view of the aforesaid facts, I am not inclined to interfere in this petition, which is hereby dismissed.
As observed above, the petitioner-institution has knowingly admitted these 28 students in their B.Sc. (Biology) course without the institution being affiliated with the University.
As noted in the preceding paragraphs of this order, it is not that the petitioner-institution was not aware that it could not admit any student unless affiliation is accorded to the course in question of the institution. Registrar of the University in its letter dated 30.05.2016, which has been annexed as Annexure No.1 to the writ petition, has made it more than clear to the petitioner-institution that no admission shall be made by it unless the course and the institution are admitted to the privileges of affiliation of the University. Thus, despite being aware and knowing that any admission made by the petitioner-institution without affiliation shall be rendered illegal, admissions have been made and in such a situation, this Court will be failing in its duty if it does not provide requiring the management of the institution to refund the entire fee paid by these 28 students within six weeks from today. The fee to be refunded by the management of the institution will not only including the tuition fee but the ancillary fee, if any, paid by the students to the management of the institution.
Apart from the aforesaid, the facts of this case make it abundantly clear that valuable time of the students has been wasted and their career has been ruined on account of such illegal act, as described above, on the part of the management of the institution and accordingly for wasting one academic year of these students, the management of the institution is also saddled with damages to be paid to each student which this Court quantifies to be Rs. 25,000/- per student. The said amount shall also be paid to the students within six weeks from today. In case amount as directed by this Court by this order is not paid to the students, the District Magistrate, Sitapur shall recover the said amount as arrears of land revenue and after recovery, the same shall be disbursed to the students. "
(35) I have considered the submissions advanced by the learned counsel for the parties as well as the judgments relied upon in support of the submissions advanced by learned counsel for the parties.
(36) Dr. Shakuntala Misra National Rehabilitation University, Lucknow was granted affiliation to the petitioner's institution vide order dated 11.8.2016. The institution was initially affiliated to the Lucknow University in the academic year 2003 after granting recognition by the NCTE vide order dated 1.10.2003 which was revised in view of Regulations of 2014 by the NCTE and in this regard, an order was passed on 2.5.2016.
(37) Likewise, Rehabilitation Council of India (RCI) accorded approval under the order dated 26.4.2016 for running B.Ed. Special Education (H.I.- Hearing Impairment) and in pursuance thereof, the institution was affiliated to Dr. Shakuntala Misra National Rehabilitation University, Lucknow.
(38) The RCI extended the approval for the academic session 2018-19 vide certificate issued on 22.6.2018 by pointing out certain short-comings which were complied with by the institution of the petitioner and communication in this regard was given to the RCI vide letter dated 25.06.2018 and no further objection was raised by the RCI in regard to short-comings after submitting the required documents by the institution of the petitioner.
(39) The University, in exercise of power under the provisions of Statute 11-A.26, upon undertaking/ certificate from institution had extended the validity of the affiliation to the institution for the academic session 2017-18 and issued a brochure for grant of admission for the academic session 2018-19 and the name of the institution was shown in the list of affiliated colleges to the University for taking admission in B.Ed. and B.Ed. (H.I.) courses. The counselling was conducted by the University on 6.8.2018 for the academic session 2018-19 allowing the students of the institution of the petitioners to participate in the counselling and the students appearing in the counselling also participated and applied for taking admission in the B.Ed. And B.Ed. Special Education (H.I.) course offered by the institution of the petitioners.
(40) The University announced the result of the counselling on 04.09.2018 with respect to the course run by the University but did not announced the result of the counselling with respect to the institution of the petitioners. The University constituted a penal to conduct the inspection on 06.09.2018 for extension of affiliation and issued order of phyiscal inspection of the institution of the petitioners and conducted inspection on 10.9.2018. After inspection, an order was passed on 17.10.2018 whereby extension of affiliation to the institution of the petitioners has been refused which has been impugned in the present writ petition.
(41) In the judgments referred and relied upon by learned counsel for the petitioners' institution, this Court as well as Hon'ble Supreme Court, while dealing with the issue of grant of recognition by N.C.T.E. and affiliation by the concerned University, have held that the purpose of recognition and affiliation are different. In the context of N.C.T.E. Act, affiliation enables and permits an institution to send its students to participate in the public examinations conducted by the Examining Body and to secure the qualification in the nature of degrees, diplomas, certificates. The recognition is the licence to the institution to offer a course or training in teacher education. Prior to the NCTE Act, in the absence of an apex body to plan and co-ordinate development of teacher education system, respective regulation and proper maintenance of the norms and standards in the teacher education system, including grant of recognition were largely exercised by the State Government and Universities/ Boards. After the enactment of NCTE Act, the functions of NCTE as 'recognising authority' and the Examining Bodies as 'affiliating authorities' became crystallized, though their functions overlap on several issues. NCTE Act recognizes the role of examining bodies in their sphere of activity.
(42) Section 14 of the NCTE Act requires recognition of the institution by the NCTE, before the institute could offer any course or training in teacher education. Sub-section (4) of Section 14 provides that every order granting or refusing recognition to an Institution for a course or training in teacher education under sub-section (3) shall be published in the Official Gazette and communicated in writing for appropriate action to such institution and to the concerned examining body, the local authority or the State Government and the Central Government.
(43) Sub-section (6) of section 14 requires every Examining Body on receipt of the order under sub-section (4), grant affiliation to the institution, where recognition has been granted; or cancel the affiliation of the institution, where recognition has been refused. Section 16 of NCTE Act provides that notwithstanding anything contained in any other law for the time being in force, no examining body shall grant affiliation whether provisional or otherwise, to any institution, or hold examination for a course or training conducted by a recognized institution, unless the institution concerned has obtained recognition from the Regional Committee of NCTE under Section 14 or permission for a course or training under Section 15 of the Act.
(44) Sub-section (6) of Section 14 no doubt mandates every examining body to grant affiliation to the institution on receipt of the order of NCTE granting recognition to such institution. This only means that recognition is a condition precedent for affiliation and that the examining body does not have any discretion to refuse affiliation with reference to any of the factors which have been considered by the NCTE while granting recognition.
(45) NCTE is required to satisfy itself about the adequate financial resources, accommodation, library, qualified staff, and laboratory required for proper functioning of an institution for a course or training in teacher education. Therefore, when recognition is granted by NCTE, it is implied that NCTE has satisfied itself on those aspects. Consequently, the examining body may not refuse affiliation on the ground that the institution does not have adequate financial resources accommodation, library, qualified staff, or laboratory required for proper functioning of the institution.
(46) The examining body can examine in regard to requirement of eligibility of candidates for admissions to course or manner of admission of students or other areas falling within the sphere of the State Government and/or the examining body.
(47) In the case, in hand, the NCTE and RCI have granted recognition/ approval to the institution of the petitioners after satisfying the requirement of adequate financial resources accommodation, library, qualified staff, or laboratory. Thereafter, the examining body i.e. the University was entrusted no power to examine the correctness in regard to above-referred ingredients required for grant of recognition. The examining body, after inspection of the institution of the petitioners, has proceeded to refuse to grant affiliation on the short-comings of infrastructure i.e. sufficient adequate financial resources accommodation, library, qualified staff, or laboratory.
(48) In the opinion of this Court, the examining body, if comes to the conclusion that there is short-coming in the institution in regard to infrastructure required while taking into consideration the grant of recognition, then it should have been informed to the NCTE and RCI for taking necessary action against the Institution. The University was empowered to examine that whether the students who have applied for grant of admission in B.Ed. and B.Ed. Special (H.I.) course are eligible and are having requisite qualification for grant of admission and if not would have refused the affiliation to the institution.
(49) Here, in the present case, the refusal of affiliation is not on the ground that the students who have applied for grant of admission, are having no requisite qualification for grant of admission. The refusal to grant affiliation is that the institution of the petitioner does not have sufficient adequate financial resources accommodation, library, qualified staff, or laboratory and is running different other courses on the same land. In case the University found certain inefficiency in regard to non-fulfillment of required land or staffs, then it should have been informed to the NCTE and RCI for taking necessary action for withdrawal of the recognition granted by the University.
(50) The NCTE is the apex body and Parliament has enacted an act in regard to grant of recognition to the training institute of teachers for appointment in the institution. The power given by the Parliament to the regional committee of NCTE cannot be usurped by the examining body while granting affiliation to the institution.
(51) The institution in question has been accorded recognition by the NCTE and RCI, after examining the infrastructure required for grant of affiliation. Therefore, the respondent-University, taking shelter of non-fulfillment of requirement of requisite requirement for grant of recognition, cannot refuse to grant affiliation to the institution of the petitioners. The affiliating University can examine only to the extent that whether the students who have opted for grant of admission in the recognized course, are eligible for grant of admission or not. Whether there are some malpractices on the part of the institute in grant of admission or not. It is not amenable to the examining body to reopen the recourse which was fulfilled by the institute at the time of recognition by the NCTE and RCI.
(52) The judgments relied upon by learned counsel for the parties are to the extent that once the recognition has been granted by the NCTE and RCI, the affiliating University can examine that whether the students who have been applied for grant of admission, are having requisite qualification for grant of admission in the courses recognized by the competent authority.
(53) The main submission of Sri Manish Kumar, learned Senior Counsel appearing for the respondents is that under order of recognition by the NCTE at page 56 of the writ petition, the affiliating University was permitted to refuse to grant affiliation in case it is found that the discrepancies pointed out in the order of recognition is not completed.
(54) In this regard, the petitioners has brought on record that the discrepancies pointed out were met out and in this regard, proper information was sent to the NCTE who does not raise objection, inasmuch as he pointed out that the University itself, on the basis of approval, granted affiliation for two sessions. Therefore, at this juncture, refusal to accord affiliation on the said ground cannot be justified in law.
(55) In view of the observations made above, the submission advanced by Sri OPM Tripathi, learned counsel for the respondent-NCTE has substance that after grant of approval of NCTE and RCI for B.Ed. and B.Ed. Special (H.I.) course the affiliating University is not competent to re-agitate the requirement for grant of recognition while granting affiliation to the institution. In case the University came to the conclusion about some short-comings existing in the institution, he may submit a report to the NCTE or RCI for cancellation of recognition of the institution.
(56) On overall consideration of the judgments relied upon by learned counsel for the parties and the material on record, this Court is of the opinion that the respondent-University has committed manifest error of law in refusing to grant of affiliation to the institution of the petitioners. Thus, the impugned orders cannot be sustained.
(57) Accordingly, order dated 17.10.2018 is hereby set aside and the writ petition succeeds and is hereby allowed. However, the respondent-University is directed to pass appropriate order for grant of affiliation to the institution of the petitioners within a period of six weeks from the date of production of a certified copy of this order and further permit admission of students in the aforesaid courses in the next session in the light of the recognition granted by the National Council for Teachers Education and Rehabilitation Council of India.
Order Date :- 20/11/2019 Adarsh K Singh/GK Sinha [Irshad Ali, J.]