Madras High Court
Evva Memorial Teacher Training ... vs The Regional Director on 23 January, 2008
Author: N. Paul Vasanthakumar
Bench: S.J.Mukhopadhaya, N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 23-1-2008 Coram The Honourable Mr.Justice S.J.MUKHOPADHAYA and The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.A.Nos.82, 83 & 234 of 2007 W.P.Nos.624, 14729 & 18967 of 2007 W.A.No.82 of 2007 Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Udumalaipet Taluk, Coimbatore District. ... Appellant Vs. 1. The Regional Director, National Council for Teacher Education, Southern Regional Committee, 1st Floor, CSD Building, HMT Post, Bangalore - 560 031. 2. The Director of Teacher Education, Research and Training, College Road, Chennai -6. 3. The Principal, District Institute of Education and Training, Thirumurthy Nagar, Coimbatore. ... Respondents This Writ appeal is preferred under Clause 15 of the Letters Patent, against the order dated 16.12.2006 made in W.P.No.27148 of 2006. W.A.No.83 of 2007 Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Udumalaipet Taluk, Coimbatore District. ... Appellant Vs. 1. The Director of Teacher Education, Research and Training, College Road, Chennai - 6. 2. The Director of Government Examinations, College Road, Chennai - 6. 3. The Principal, District Institute of Education and Training, Thirumurthy Nagar, Coimbatore. ... Respondents This Writ appeal is preferred under Clause 15 of the Letters Patent, against the order dated 16.12.2006 made in W.P.No.46406 of 2006. W.A.No.234 of 2007 K. Ravi ... Appellant Vs. 1. Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Madathukulam, Udumalaipet Taluk, Coimbatore District. 2. The Regional Director, National Council for Teacher Education, HMT Post, Jalahalli, Bangalore - 560 031. 3. The Director of Teacher Education Research & Training, College Road, Chennai - 600 006. 4. The Principal, District Institute of Educational and Training, Tirumurthy Nagar, Coimbatore. ... Respondents This Writ appeal is preferred under Clause 15 of the Letters Patent, against the order dated 16.12.2006 made in W.P.No.27148 of 2006. W.P.No.624 of 2007 Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Madathukulam, Udumalaipet Taluk, Coimbatore District. ... Petitioner Vs. 1. The Regional Director, National Council for Teacher Education, HMT Post, Jalahalli, Bangalore - 560 031. 2. The Director of Teacher Education, Research and Training, College Road, Chennai - 6. ... Respondents This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records of the first respondent in code: APSO 1103F.SRO/NCTE/2006-07 dated 4.12.2006 and quash the same and further direct the first respondent to approve the shifting of the petitioner Teacher Training Institute from Thippampatty, Pollachi Taluk, Coimbatore District. W.P.No.14729 of 2007 Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Madathukulam, Udumalaipet Taluk, Coimbatore District. ... Petitioner Vs. 1. The Director of Teacher Education Research & Training, College Road, Chennai - 600 006. 2. The Principal, District Institute of Educational and Training, Tirumurthy Nagar, Coimbatore. ... Respondents This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of mandamus directing the respondents to depute the 2005-2006 batch students of the Petitioner Institute for Teaching Practice and Commission Work and publish the first year result of the examination held on 18.12.2006 so as to enable them to complete the second year examinations. W.P.No.18967 of 2007 Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Madathukulam, Udumalaipet Taluk, Coimbatore District. ... Petitioner Vs. 1. The Director of Teacher Education Research & Training, College Road, Chennai - 600 006. 2. The Principal, District Institute of Educational and Training, Tirumurthy Nagar, Coimbatore. ... Respondents This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of mandamus directing the respondents to include the petitioner institute viz. Evva Memorial Teacher Training Institute, Vanjipuram, Kaniyur Post, Udumalaipet Taluk, Coimbatore District in the list of recognised Teacher Training Institute. For Appellant in WA.82, 83/2007, : Mr.Vijay Narayan, Petitioner in WP.624, 14729 & Senior Counsel 18967/2007 & R-1 in WA.234/2007 for Mr.S.Kamadevan Mr.T.V.Badrinarayan For Appellant in WA.234/2007 : Mr.K.Sridhar For NCTE/R1 in WA.82/2007, : Mr.P.R.Gopinath WP.624/2007 and R2 in WA.83/2007 For DTE/R1 in WA.83/2007,WP.14729/07: Ms.Dakshayani Reddy, WP.18967/2007; R2 in WA.82/2007 & Government Advocate WP.624/2007; R3 in WA.234/2007 COMMON JUDGMENT
N. PAUL VASANTHAKUMAR, J.
W.A.Nos.82, 83 and 234 of 2007 arise from the common order made in W.P.Nos.27148, 46406 and 27148 of 2006 respectively. W.A.Nos.82 and 83 of 2007 are filed by one S.Jayaparvathi, claiming herself as correspondent of Evaa Memorial Teacher Training Institute. W.A.No234 of 2007 is preferred by one K.Ravi, who is the Agreement Holder of Evaa Memorial Teachers Training Institute.
2. W.P.No.624 of 2007 is filed by the S.Jayaparvathi, claiming herself as Correspondent of Evva Memorial Teacher Training Institute, wherein the order of the Regional Director Southern Regional committee, NCTE, dated 4.12.2006 in which the request for shifting the location of Teachers Training Institute was rejected with a consequential direction to approve the shifting of the Teacher Training Institute from Thippampatti, Pollachi Taluk, Coimbatore District to Annai Sathya Nagar, Madathukulam, Udumalapet Taluk, Coimbatore District.
3. W.P.No.14729 of 2007 is also filed by the said S.Jayaparvathi for issuing a writ of mandamus directing the Director of Teacher Education Research and Training and the Principal, DIET, Tirumurthi Nagar, Coimbatore, to depute 2005-2006 batch of students of her Institute for teaching practice and commission work and publish the first year results of the examinations held from 18.12.2006, so as to enable them to complete the second year examination.
4. W.P.No.18967 of 2007 is filed by the said S.Jayaparvathi, for issuing a writ of mandamus directing the Director of Teacher Education, Research and Training, Chennai-6, and the Principal, DIET , Tirumurthi Nagar, Coimbatore to include her institute in the list of recognised Teacher Training Institute.
5. The issue involved in all the writ appeals and the writ petitions are one and the same and hence all the cases are disposed of by this common Judgment.
6. The brief facts necessary for disposal of the writ appeals and the writ petitions are as follows:
(a) A Teacher Training Institution was said to have been established by an Educational Trust called Evva Memorial Educational Trust and the same is said to have been registered under the Tamil Nadu Societies Registration Act, in the year 1992. The said Institute obtained recognition from the competent authority of the State of Tamil Nadu in August, 1992. The said recognition was cancelled along with the recognition granted to several other similar Teacher Training Institutes, pursuant to the order passed by the Division Bench of this Court in the year 1994 in W.P.No.9494 of 1994.
(b) The National Council for Teacher Education Act, 1993, came into force from August, 1994, pursuant to which the Evva Memorial Teacher Training Institute having its office at Sathya Nagar, Madathukulam, Udumalapet Taluk, Coimbatore District, applied for No Objection Certificate from the State Government for submitting application for recognition before the Southern Regional Committee of the NCTE under Section 14 of the NCTE Act. The State Government by order dated 13.9.2004 granted NOC for establishing Teacher Training Institute (Elementary) to the said Trust on certain conditions.
(c) Condition No.6 states that the Institution will be permanently located at Thungavai Village and the NOC was granted on the ground of having land measuring five acres shown at S.No.351/1 and 351/B, Udumalapet Taluk. Condition No.9 states that the Institution should be located temporarily in a rented building and should be shifted to its own building in its own land, within three years from the grant of recognition by the NCTE.
(d) The said Trust applied for recognition before the NCTE for the grant of recognition under section 14 of the NCTE Act, 1993. The Southern Regional Committee of NCTE having not taken any steps to consider the application for recognition, the Institute filed writ petition before this Court and obtained an order on 4.8.2004 for a direction to the NCTE to consider the application and pass orders on merits. When the application for recognition was pending before the NCTE, the Institute entered into an unregistered lease agreement on 29.11.2004 with one K.Ravi, who is the appellant in W.A.No.234 of 2007 for taking portion of the building owned by him at Thippampatti, where he is already running a Matriculation school.
(e) The NCTE granted recognition to the Institute by order dated 27.1.2005 for offering two year teacher Training Course (Elementary) from the academic session 2004-2005. The recognition order states that the recognition is granted to Evva Memorial Teacher Training Institute, Vanchipuram, Kaniyur, Coimbatore District and it was communicated to the Thippampatti address, where the building was taken on lease from the said K.Ravi on 29.11.2004. The said order of recognition further states that the Institute will ensure that permanent building is constructed within a period of three years on acquiring of land with a further condition to get approval of staff list from the Director of Teacher Education, Research and Training, Chennai. The Director of Teacher Education Research and Training by order dated 19.8.2005, granted the staff approval.
(f) Before the grant of staff approval, the Correspondent and the other representatives of the Institute entered into an unregistered agreement on 12.4.2005 with the said K.Ravi by stating that recognition granted to Evva Memorial Teacher Training Institute by the NCTE on 27.1.2005 and the No Objection Certificate granted by the State of Tamil Nadu is agreed to be transferred in the name of the said K.Ravi for a sum of Rs.15 lakhs and the parties agreed that from the date of agreement the said K.Ravi viz., the Agreement Holder shall administer the institution and no other person is entitled to administer the same and claim any right. It was further agreed that three seats in the Institute for 2005-2006 shall be filled up by the candidates suggested by the promoters.
(g) The Correspondent/promoters received a cheque for Rs.9 lakhs from the Agreement Holder viz., K.Ravi and the same was encashed. They also received two post-dated cheques, each for a sum of Rs.3.00 lakhs. However, one of the post-dated cheque got dishonoured on the ground that the promoters did not come forward to sign necessary applications for effecting the transfer.
(h) The promoters contend that as per the agreement, if any of the conditions of the agreement is contravened, the entire agreement will be treated as cancelled. On the basis of the said agreement, the promoters as well as the Agreement Holder started admitting the students for Teacher Training Education Course and the results of the examinations written by the students were not declared. 48 students joined together and filed W.P.No.18967 of 2006 and prayed for direction to publish their results. In the said writ petition both the promoters as well as the Agreement Holder got themselves impleaded as owners of the Institution. By order dated 25.7.2006 this Court gave a direction to publish the results of the said students, leaving the dispute relating to the transfer of the institution undecided.
(i) The promoters of the Institute applied to the DTERT for permission to shift the Institution to Annai Sathya Nagar, Madathukulam, Udumalapet Taluk. However, they were directed to get approval from the NCTE for shifting. The promoters filed W.P.No.25244 of 2006 claiming that they have applied before the NCTE on 29.10.2005 for permission to shift, in which the NCTE took a stand that for changing the site, prior approval is necessary and the application must accompany a demand draft for Rs.40,000/-. The said writ petition was disposed of by order dated 10.5.2006 by allowing the promoters to apply to the NCTE for approval in the prescribed form along with necessary documents, with further direction to the NCTE to inspect the site and pass orders according to law.
(j) On 14.8.2006, the promoters submitted an application to the NCTE along with demand draft for Rs.40,000/-. On 9.8.2006, DTERT passed an order prohibiting admission of students by the promoters for the academic year 2006-2007 until the rival claims of the ownership of the Institute is lawfully resolved. The said order of the DTERT dated 9.8.2006 was challenged by the promoters in W.P.No.27148 of 2006 and while admitting the writ petition, interim stay of the order was granted and a further interim direction was issued directing the NCTE to inspect the premises at Annai Sathya Nagar, Madathukulam and pass orders within three weeks. In the said writ petition, the Agreement Holder viz., K.Ravi got himself impleaded. The NCTE Inspected the premises of Annai Sathya Nagar, Madathukulam on 11.10.2006 and rejected the request for shifting the institution by order dated 4.12.2006, which is challenged in W.P.No.624 of 2007.
(k) On 19.1.2006 the promoters submitted a list of students to the DTERT for approval and the same having not been processed, the promoters filed W.P.No.46403 of 2006 and prayed for direction to approve the students list submitted by them for the academic year 2005-2006 and permit them to sit for examination scheduled to commence from 18.12.2006. The said K.Ravi, who is the Agreement Holder also filed W.P.No.47860 of 2006 for issuing writ of mandamus directing the Director of Government Examinations to issue Hall Tickets to 48 students admitted by him in the rented premises to appear for examinations scheduled to commence from 18.12.2006.
(l) The said writ petition 27148, 46403 and 47860 of 2006 were heard by the learned Single Judge and by a Common Order dated 16.12.2006 held that the certificate of recognition is sold by the promoters as a tradable commodity to the Agreement Holder viz., K.Ravi and the same is impermissible as it is in violation of section 23 of the Indian Contract Act, 1872. The agreement dated 12.4.2005 is void since both the parties are guilty of violating the provisions of the NCTE Act, 1993. The learned single Judge also held that the right to establish and administer Educational Institution, even though guaranteed under Article 19(1)(g) of the Constitution of India, the Supreme Court has made it clear that Education cannot be treated as a trade or business, but should be treated only as an occupation, as per the Judgment of the Supreme Court made in TMA Pai Foundations and others Vs. State of Karnataka, (2002) 8 SCC 461 and P.A.Inamdar and others Vs. State of Maharashtra, (2005) 6 SCC 537.
(m) The learned single Judge also found that there is no provision under the NCTE Act enabling the management to transfer a Teacher Training Institute and in the absence of any provision under the NCTE Act, the transfer of management could be made under section 8 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, which only provides transfer of the entire management and not transfer of recognition alone. Hence the learned Judge held that the order passed by the DTERT prohibiting admission of students is valid and the students admitted by the promoters of Institute numbering 48 (admitted in 2005-2006 batch) including 23 students admitted by the Government through single Window Selection shall be admitted in a Government Teacher Training Institute for the second year course. The students admitted by the agreement holder viz. K.Ravi even though is not entitled to get any relief, taking note of the interest of the students, a direction was issued to the Special Government Pleader (Education) to find out whether they could be accommodated in other institution for undergoing second year. In paragraph 43, the learned Judge passed the following order,
43. Under the above circumstances, all the three writ petitions are disposed of with the following directions:-
(a) The prayer made in W.P.No.27148 of 2006 for setting aside the order of the Director dated 9.8.2006 is rejected.
(b) In so far as the prayer made by the promoters of the institute in W.P.No.46403 of 2006 and the prayer made by the students in W.P.No.47860 of 2006 are concerned, the Director of Teacher Education Research and Training shall permit all those students admitted for the academic year 2005-2006 by both parties, to write the examinations scheduled to be held from 18.12.2006.
(c) After the completion of the examinations, the entire batch of students admitted by the promoters and the agreement holder K.Ravi as well as those admitted under the Single Window System for the academic year 2005-2006, shall be reallotted by the Director of Teacher Education Research and Training to other recognised or Government Teacher Training Institutions, for continuing the second year of the Diploma Course.
(d) The Director of Teacher Education Research and Training shall also send a proposal to the NCTE for the approval of the additional intake, to the institutions to which these students are reallotted, within a month from the date of receipt or production of a copy of this order.
(e) The Southern Regional Committee of NCTE shall consider the request of the Director of Teacher Education Research and Training for approval of the additional intake for those institutions to which these students are reallotted and pass appropriate orders, within one month of submission of the request by the Director of Teacher Education Research and Training.
(f) The students admitted by the promoters for the year 2006-2007 cannot continue the course, since they could have been admitted only after the interim stay order granted on 22.8.2006 in W.P.No.27148 of 2006. Therefore, the petitioner in W.P.No.27148 of 2006 shall return to those students, all the original certificates submitted by them, together with the entire amount of fees and other charges collected from those students, within a period of two weeks from the date of receipt or production of a copy of this order. Since these students could have been admitted only after 22.8.2006 and that too by virtue of an interim order of this Court, to the first year of the two year Diploma Course, these students may not be entitled to the rehabilitation, prescribed under clauses (c) to (e) above, along with the students admitted for the year 2005-2006. Therefore these students admitted for the academic year 2006-2007 will have to work out their remedies only against the persons who granted admission to them and they cannot seek approval of their admission.
(g) The petitioners in W.P.No.27148 of 2006 and 46403 of 2006 as well as the agreement holder K.Ravi, who is the petitioner in M.P.Nos.3 and 4 of 2006 in W.P.No.27148 of 2006, shall deposit with the Director of Teacher Education Research and Training, the entire amount of fees and other charges collected by them from the entire batch of 2005-2006 candidates, within two weeks from the date of receipt or production of a copy of this order.
(h) The amount so deposited shall be utilised by the Director for the purpose of making payment of fees and other charges on behalf of these students, when they are reallotted to other institutions. While making payment, if any short fall arises, the Director shall be entitled to collect the same also from the promoters and K.Ravi, in proportion to the number of students admitted by them. If the amount deposited by the promoters and the agreement holder is in excess of the tuition fee and other charges payable by the rehabilitated students to the reallotted institutions, the same shall be refunded to the students proportionately.
(i) The National Council for Teacher Education is directed to initiate action against the institute under Section 17 of the NCTE Act, within two weeks from the date of receipt or production of a copy of this order.
(j) Henceforth NCTE shall not merely issue the order of recognition in the name of the proposed institute. NCTE shall enclose to every order of recognition granted by them, a format of particulars containing the details relating to the name and address of the Educational Agency to which recognition is granted, (apart from the name of the Institute) the nature of the Educational Agency as to whether it is a Trust, a Society or a Company, the Registration Number of the Trust, Society or Company, the address in respect of which the institution was granted recognition to locate its institute. The NCTE shall also make it mandatory for the institutes to publish both the order of recognition as well as the enclosed format of particulars with the above details, in the prospectus inviting applications for admission, so that the students know the actual persons who run run the Educational Agency and their background and the students are thereby prevented from being taken for a ride and also prevented from claiming ignorance."
As against the said order, both the promoters as well as Agreement Holder filed the above writ appeals.
7. Mr.Vijay Narayan, learned Senior Counsel appearing for the appellants in W.A.No.82 and 83 of 2007 filed by the promoters, contended that the promoters have not violated any provisions of the law while entering into the agreement to transfer the recognition order as well as No Objection Certificate obtained from the State Government to the said K.Ravi as it is permissible under Section 8 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, and post approval of transfer of management is permissible and therefore there is no illegality in entering into the said agreement. He further contended that in fact, the agreement holder, only breached the terms contained in the agreement by not honouring the cheque issued by him for a sum of Rs.3.00 lakhs and as per the terms in the said agreement, the agreement stands terminated due to non-performance of part of the agreement. The promoters having got a right to shift the Institution, have applied before the NCTE and the same is rejected on untenable grounds and therefore the writ petition filed in W.P.No.624 of 2007 challenging the order of rejection dated 4.2.2006 is to be allowed. The learned Senior Counsel further submitted that this Court, while admitting the writ appeals granted interim stay and the students admitted in the year 2005-2006 continued their second year course through the Institute of the promoters and this Court also granted interim order on 4.10.2007 to write the second year examinations to 27 students, scheduled to be held from 8.10.2007 however their results are yet to be published and the practical examination and teaching practice shall be arranged to them. The learned senior counsel further submitted that the said K.Ravi, who is the Agreement Holder, who is also appellant in W.A.No.234 of 2007 is no longer running Teacher Training Institute and by granting permission to shift the Teacher Training Institute by the NCTE, no prejudice would be caused to anyone and the claim of the said Ravi can be decided in the suit filed by him in O.S.No.373 of 2006 before the District Munsif Court, Udumalpet and subject to the result of the suit, direction can be given for the continuance of the Institution by admitting students.
8. The learned counsel appearing for the appellant in W.A.No.234 of 2007 contended that the promoters having entered into an agreement on 12.4.2005 are bound to sign and submit the proposal for approving the transfer of management and on refusal to sign the necessary papers one of the cheque issued by the Agreement Holder was not honoured and therefore he has rightly filed O.S.No.373 of 2006 before the District Munsif Court, Udumalpet, seeking a decree of mandatory injunction directing the defendants therein to co-operate with the plaintiff in transferring the suit institution, authorisations and rights in the name of the plaintiff and for a permanent injunction restraining the defendants from in any way interfering, obstructing, objecting the plaintiff's right and day-to-day affairs and management in all aspects of the suit institution and the same is pending. The learned counsel further submitted that the administration of the Institute was handed over on the date of agreement and therefore as the Agreement Holder, he has got every right to continue the management of the Teacher Training Institute and also admit students. The learned counsel further submitted that the promoters have also filed two civil suits in O.S.No.39 of 2006 and O.S.230 of 2006 before the District Munsif Court, Udumalapet, as against the agreement holder and the said suits are pending.
9. The learned counsel for the NCTE submitted that the agreement entered into between promoters and the Agreement Holder is not valid as no permission or approval is obtained from the NCTE and now by virtue of the agreement, there is a management dispute and two parallel institutions are being run by two different persons on the strength of one recognition order, which is impermissible.
10. The learned Government Advocate submitted that in view of the dispute in the management, the DTERT issued a prohibitory order prohibiting admission of students and this Court having ordered to transfer the students of the promoters and they having not been transferred, they are not entitled to get their results of the examinations declared and they are also not entitled to get practical examination and teaching practice. The learned Government Advocate further submitted that the promoters have admitted the students for this year 2007-2008 in spite of the order of the learned single Judge and the Government is willing to transfer the first year students to any other Government Teacher Training Institute. The second year students are to be re-admitted in the second year Course in the recognised TTI/DIET and they have to undergo the second year course afresh. On the basis of the counter affidavit filed in these writ appeals the learned Government Advocate submitted that the promoters and agreement holder have admitted students and attempted to run parallel institution on the basis of single recognition order.
11. In the light of the above submissions, the following questions arise for consideration in these cases:
(1) Whether the promoters are justified in transferring the recognition granted by the NCTE and NOC issued by the State Government for the establishment of Evva Memorial Teacher Training Institute, to the Agreement Holder and whether the same is permissible in law ?
(2) Whether a direction can be issued to the students admitted in Evva Memorial Teacher Training Institute, to conduct practical examination and for teaching practice and whether their results could be ordered to be published ?
(3) Whether the students admitted during 2007-2008 in the first year in Evva memorial Teacher Training Institute, by the promoters can continue their course in the very same Teacher Training Institute, or can be ordered to be accommodated in other recognised TTI or Government Teacher Training Institute by DTERT ?
12. The undisputed facts in these cases are that Evva Memorial Teacher Training Institute was granted NOC by the State Government by the order of the School Education Department letter No.29860/U1/2004-1, dated 13.9.2004 for submitting an application for recognition before the NCTE to conduct Diploma course in Teacher Education (Elementary). The NCTE also granted recognition to conduct DTE course to Evva Memorial Teacher Training Institute, Vanjipuram, Kaniyur from the Academic Session 2004-2005 under section 14(1) of the NCTE Act, 1993 with a condition that the Institution will ensure that a permanent building will be constructed within a period of three years in the acquired land and the Institution has to select Principal and five teachers for the said course and the staff list is to be approved by the DTERT. On 19.8.2005 the Director of Teacher Education, Research and Training, Chennai, approved the staff list of Evva Memorial Teacher Training Institute. Thus there is a valid Teacher Training Institute, recognised by the NCTE. Therefore, admission of students by the promoters till the prohibitory order is issued by DTERT cannot be found fault with.
13. (a) The issue as to whether recognition order issued by the NCTE and the No Objection Certificate issued by the State Government could be sold like a tradable commodity and the agreement holder could be permitted to administer the Teacher Training Institute without the approval of the competent authority and whether the same is permissible in view of Section 23 of the Indian Contract Act, 1872 is to be ascertained. Section 23 of the Indian Contract Act clearly states that every agreement, of which, the object or consideration is unlawful, is void. As per Section 23, the consideration or object of an agreement, is unlawful, if (1) It is forbidden by law;
(2) Is of such a nature that, if permitted, it would defeat the provisions of any law;
(3) Is fraudulent;
(4) Involves or implies injury to the person or property of another;
(5) The Court regards it as immoral;
(6) Opposed to public policy.
(b) The Memorandum of Agreement dated 12.4.2005 entered into between the promoters and the agreement holder namely, K.Ravi is in respect of recognition granted to parties 1,2,3 and 4 (Evva Memorial Teacher Training Institute) for running the Teacher Training Institute Tamil Medium under NCTE/2004-05 Code APSO 1103 dated 27.1.2005 and Tamil Nadu Government NOC.No.29860/U1/04 dated 13.9.2004, is agreed to be transferred to the party of the fifth part, in his name or in the name of any Trust to which he belongs, in consideration of the payment of a sum of Rs.15 lakhs. From a perusal of the said clause in the agreement it is evident that the recognition granted by NCTE and the No Objection Certificate issued by the State Government are sold as tradable commodities. A perusal of the National Council for Teacher Education Act, 1993 and the Regulations framed thereunder, there is no provision to transfer the recognition or even the transfer of management. However, in the absence of any specific provision made in the National Council for Teacher Education Act, 1993, we could trace the power of the transfer of management from the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, which was governing the establishment and administration of the Teacher Training Institutes prior to the enactment of NCTE Act, 1993.
(c) Whether the parties in these writ appeals are entitled to enter into the said agreement in running Teachers Training Institute like a trade or business was considered by the Supreme Court in the decision reported in (2002) 8 SCC 461 (T.M.A. PAI FOUNDATION AND OTHERS vs. STATE OF KARNATAKA AND OTHERS), the Supreme Court held as follows:-
"Education is per se regarded as an activity that is charitable in nature (see State of Bombay vs. R.M.D. CHAMARBAUGWALA (AIR 1957 SC 699). Education has so far not been regarded as a trade or business where profit is the motive. Even if there is any doubt about whether education is a profession or not, it does appear that education will fall within the meaning of the expression "occupation"."
Again, the Supreme Court in P.A.INAMDAR AND OTHERS vs. STATE OF MAHARASHTRA AND OTHERS ((2005) 6 SCC 537) held as follows:-
"89. Education, accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does not cease to be a service to society. And even though an occupation, it cannot be equated to a trade or a business."
(d) Section 23 of the Indian Contract Act, which is referred above clearly states that if any agreement is forbidden by law or is opposed to public policy, the same is void. Whether the agreement is opposed to public policy or forbidden by law is to be considered on the facts and circumstances of each case as held by the Supreme Court in the decision reported in AIR 1986 S.C. 1571 (CENTRAL INLAND WATER TRNSPORT CORPORATION LTD. v. BROJO NATH) = 1986 (3) S.C.C. 156. In paragraph 92, the Supreme Court held thus:
"92. The Indian Contract Act does not define the expression public policy or opposed to public policy. From the very nature of things, the expressions public policy, opposed to public policy, or contrary to public policy are incapable of precise definition. Public policy, however, is not the policy of a particular government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the courts and similarly where there has been a well recognized head of public policy, the courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy. There are two schools of thought the narrow view school and the broad view school. According to the former, courts cannot create new heads of public policy whereas the latter countenances judicial law-making in this area. The adherents of the narrow view school would not invalidate a contract on the ground of public policy unless that particular ground had been well-established by authorities. Hardly ever has the voice of the timorous spoken more clearly and loudly than in these words of Lord Davey in Janson v. Driefontein Consolidated Gold Mines Ltd. 636 : Public policy is always an unsafe and treacherous ground for legal decision. That was in the year 1902. Seventy-eight years earlier, Burrough, J., in Richardson v. Mellish 737 described public policy as a very unruly horse, and when once you get astride it you never know where it will carry you. The Master of the Rolls, Lord Denning, however, was not a man to shy away from unmanageable horses and in words which conjure up before our eyes the picture of the young Alexander the Great taming Bucephalus, he said in Enderby Town Football Club Ltd. v. Football Assn. Ltd. 838 : With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles. Had the timorous always held the field, not only the doctrine of public policy but even the common law or the principles of Equity would never have evolved. Sir William Holdsworth in his History of English Law Vol. III, p.55, has said:
In fact, a body of law like the common law, which has grown up gradually with the growth of the nation, necessarily acquires some fixed principles, and if it is to maintain these principles it must be able, on the ground of public policy or some other like ground, to suppress practices which, under ever new disguises, seek to weaken or negative them. It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution."
(e) An issue as to whether a mining lease granted in favour of a person, contrary to the provisions of the Mines and Minerals (Regulation and Development Act), 1948, and the Mineral Concession Rules, 1949, are valid or void was considered by the Supreme Court in the decision reported in AIR 1974 SC 1892 (KUJU COLLIERIES v. JHARKHAND MINES), wherein the Supreme Court held as follows:-
"The Mineral Concession Rules came into force on 25.10.1949. As the lease came into force on September 7, 950 and money was paid on that date, the fact that there was an earlier unregistered contract does not make any difference to the question at issue. Section 4 of the Mines and Minerals (Regulation and Development) Act, 1948 provides "no mining lease shall be granted after the commencement of this Act and any mining lease granted contrary to the provisions of sub-section (1) shall be void and of no effect. Under Rule 45 of the Mineral Concession Rules, 1949 "no prospecting license or mining lease shall be granted except to a person holding a certificate or approval from the Provincial Government having jurisdiction over the land in respect of which the concession is required. The plaintiff had no certificate of approval from the State Government. Under Rule 49 "no grantor of a prospecting license or a mining lease shall charge any premium in addition to or in lieu of the prospecting fee, surface fee, surface rent, dead rent or royalty specified in such license or lease". There was a stipulation for payment of a premium under the lease deed in favour of the plaintiff. Therefore, clearly the lease in favour of the plaintiff was contrary to the provisions of the Mines and Minerals (Regulation and Development) Act, 1948 and the Mineral Concession Rules, 1949 and as such void."
14. On the basis of the above judgments we have to analyse whether the agreement is hit by Section 23 of the Indian Contract Act, particularly whether it is forbidden by law or opposed to public policy. As stated supra, the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, and Rules, 1974, enables the parties to transfer the Management of the Schools/Teacher Training Institute, but the certificate of recognition and the No Objection Certificate alone cannot be transferred.
15. (a) The contract/agreement opposed to Public Policy was dealt with by the Supreme Court in the decision reported in 2006 AIR SCW 5470 (India Financial Association, Seventh Day Adventists v. M.A.Unneerikutty) in paragraphs 18 to 22, which read thus, "18. Section 23 of the Contract Act lays down that the object of an agreement becomes unlawful if it was of such a nature that, if permitted, it would defeat the provisions of any law.
19. The term 'public policy' has an entirely different and more extensive meaning from the policy of the law. Winfield defined it as a principle of judicial legislation or interpretation founded on the current needs of the community. It does not remain static in any given community and varies from generation to generation. Judges, as trusted interpreters of the law, have to interpret it. While doing so precedents will also guide them to a substantial extent.
20. The following passage from Maxwell "Interpretation of Statutes", may also be quoted to advantage here:-
"Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Where there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only or whether it is an Act which is intended as a matter of public policy ..."
21. The doctrine of public policy may be summarized thus: Public policy or the policy of the law is an illusive concept: it has been described as "untrustworthy guide", "variable quality", "uncertain one", "unruly house", etc., the primary duty of a Court of a law is to enforce a promise which the parties have made and to uphold the sanctity of contract which form the basis of society, but in certain cases, the Court may relieve them of their duty on a rule founded on what is called the public policy, but the doctrine is extended not only to harmful cases but also to harmful tendencies. This doctrine of public policy is only a branch of common law, and just like any other branch of common law it is governed by precedents. The principles have been crystallized under different heads and though it is permissible for Courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public.
22. Section 24 provides that if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void."
(b) A Division Bench of the Allahabad High Court in the decision reported in AIR 1989 Allahabad 214 (Abhai Singh V. Sanjay Singh) considered the agreement opposed to Public Policy in handing over the management of a School to a Society, which was found as opposed to public policy on the ground that interest of students and that of their guardian have crept in.
(c) The Division Bench of the Andhra Pradesh High Court in the decision reported in 1987 (1) ALT 33 (Popuri Ramabrahma Nancharayya v. Pidikiti Srirama Murthy and others) considered an agreement of transfer or assignment of licence for exhibiting film except in the licenced premises without prior clearance of the Government and held that the said agreement is opposed to public policy. In paragraph 12, the Division Bench held as follows:
"12. The conspectus of the provisions of the Act in conjunction with rules made thereunder indicating prohibition of the transaction in the interest of the public at large is the criteria for considering whether the infraction of the provisions is illegal and opposed to public policy. It is firmly settled that mere illegality of the transaction cannot be labelled with taint of prohibition unless the adherence to the conditions embodied in the provisions of the statute is visualised for the protection of the public. The levy of penalty or vulnerability to commission of offence is a strong indication of the intention of forbid the contravention and the absence of penalising by itself is not a conclusive factor and the object and essence of the provisions of the Act constitute the base for attracting Sec.23 of the Contract Act. Public policy is the prime mover for prohibiting or for prohibiting or forbidding the transaction and the consideration should be whether the provisions are enacted in furtherance of or conducive to public policy deduced from scanning the provisions of the statute. Public policy is a reflection of the current pattern of life and springs from the needs and aspirations of the society and takes colour from the prevailing political, economic and social values. Public policy has to be in tune with contemporaneous atmosphere and should not be imprisoned within rigid contoms and archives of by-gone values. Public policy evolved or gain currency at a particular point of time may not hold good for all the time and it has to be necessarily fashioned to the changing pattern of life. The films, television and radio have become powerful and swift media for dissemination of knowledge and transmission of information and also contributes to shaping and influencing the mental make up of the people. The silver screen seeks to mirror the social values, political propensities, ethical considerations current customs and superstitutions and diverse facets of life. It is patent from the provisions of Cinematograph Act and the conditions of license that the grant of license and diverse forms of transfer of the said license are brought under the direct focus of the Government. Conditions No.12 of the licence unequivocally prohibits transfer or assignment of licence and permitting any other person to exhibit films in the licensed premises except with the prior clearance of the Government. The contravention of the conditions runs the risk of cancellation of licence coupled with penalising. It is obvious that the provisions of the Cinematographic Act and the conditions of licence are envisioned in the interests of the public. The learned counsel for the appellant contended that there is no total embargo and the transfer can be effected with prior permission and the contravention thereof entails cancellation of licence. We are unable to appreciate this contention. Ex.A-1 the agreement between plaintiff and defendant enabled the defendants to exhibit the films and admittedly there is no permission of the Licensing Authority and therefore the agreement is in teeth of condition No.12 of the licence and therefore opposed to public policy."
16. Insofar as the contention of the learned Senior Counsel appearing for the appellant that transfer of management is permissible under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, we are of the view that transfer of management is permissible under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, which deals with approval of transfer of management. Section 2(7) of the Act deals with 'Private School', which includes Teacher Training Institute also, which reads as follows:
"2(7) "private school" means a pre-primary, primary, middle or high school or higher secondary school or teacher training institution imparting education or training, whether receiving grant from the Government or not, established and administered or maintained by any person or body of persons, and recognised by the competent authority under this Act but does not include a school or an institution-
(a) imparting technical or professional education;
(b) established and administered or maintained by the Central Government or the State Government or any local authority;
(c) maintained or approved by, or affiliated to, any University established by law; or
(d) giving, providing or imparting religious instruction alone, but not any other instruction"
Section 8 of the Tamil Nadu Recognised Private schools (Regulation) Act, 1973, deals with transfer of management of schools. It reads as follows:
"8. Approval of transfer of permission. - (1) (a) Whenever there is any change in the constitution of the educational agency that agency shall apply to the competent authority for approval of such change.
(b) Whenever the management of any private school is proposed to be transferred, the educational agency and the person, to whom the management is proposed to be transferred may, before such transfer, apply jointly to the competent authority for approval of the transfer.
(c) On any transfer of the management of private school, without approval having been obtained for such transfer under clause (b), the tranferee shall, if he desires to run it as such, apply to the competent authority within three months of the date of the transfer, for approval of the transfer.
(d) An application under clause (a), clause (b) or clause (c) shall be in such form and contain such particulars as may be prescribed.
(2) On receipt of an application under sub-section (1), the competent authority shall-
(a) if it is satisfied, after making such inquiry as it deems fit, that the educational agency will continue to maintain and manage or, as the case may be, that the transferee will maintain and manage, the private school, in accordance with the provisions of this Act and the rules made thereunder, approve the change or, as the case may be, the transfer, subject to such conditions as it may impose; and
(b) communicate its decision to the applicant within a period of three months from the date of such receipt."
In Rule 7(3) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, it is stated that application for approval of transfer of management of any Private School or for approval of such transfer where the transfer was made without approval having been obtained for such transfer, shall be in Form-IV. Form-IV clearly deals with transfer of management with teachers, liability for non-payment of salary and a declaration is to be furnished by the transferor and transferee, for handing over the school, etc.
17. (a) Thus, it is beyond doubt that certificate of recognition and No Objection Certificate alone could not be transferred as in the present case. The intention of the promoters is also clear from the agreement that the promoters are transferring the recognition and No Objection Certificate for a consideration of Rs.15 lakhs in respect of expenses incurred by the promoters and the promoters reserved their right to admit three students for the academic year 2005-2006. Hence the transfer of recognition and No Objection Certificate by the promoters for a sum of Rs.15 lakhs of which Rs.12 lakhs was retained towards the expenses met for the grant of recognition and No Objection Certificate, is not sustainable.
(b) The said agreement entered for selling the recognition and No Objection Certificate by the promoters to the agreement holder is to be treated as opposed to public policy as the Educational Institution is granted recognition for the benefit of the public. The right conferred to run an institution by way of certificate of recognition and no objection if sold like a tradable commodity, and authorising the agreement holder to run the institution from the date of the agreement without the approval of the competent authority is definitely an act opposed to public policy. Further, by admitting students by both promoters and agreement holder, establishes the dispute over the institute and the welfare of the innocent students and their parents are also involved.
18. The promoters having parted with the right of recognition and admittedly having received Rs.12,00,000/- out of Rs.15,00,000/- as sale price fixed, and the lis between the promoters and agreement holder being pending in three suits, no one is entitled to admit any student. It is not the case of the promoters that the amount received is repaid and the agreement stands terminated and the dispute still subsists and admittedly pending before the Civil Court, the promoters are not entitled to admit students or conduct Teacher Training course based on the recognition granted by the NCTE. Similarly the agreement holder is not entitled to admit students as no approval is granted by the competent authority for the transfer of management. The dispute is admittedly pending and both parties having admitted students by stating one reason or the other, the rights of the students are very much affected. Hence the DTERT was justified in issuing a prohibitory order by not permitting both parties in admitting students. The said order will be in force till the dispute is settled. The interim order obtained by the promoters from the civil court is without reference to the order passed by this Court. Since the prohibitory order passed by DTERT is upheld, the promoters are not entitled to admit students.
19. As the promoters have no right to conduct Teacher Training course as of now, the permission sought for to shift the institution from Vanjipuram, Kaniyur, Coimbatore District to Annai Sathya Nagar, Madathukulam, Udumalaipet Taluk, Coimbatore District, is not entitled to be granted by the NCTE. Hence rejection of request by the NCTE though on different reasons, requires no interference by us. The promoters can apply for the approval of shifting after the dispute between the promoters and the agreement holder is over and if the same is sought for the NCTE is bound to consider the same on merits and in accordance with law.
20. Insofar as the continuance of second year students by the promoters are concerned, this Court granted interim stay of the learned single Judge's order, pursuant to which the said students were not transferred to other recognised Teacher Training Institute or to Government Teacher Training Institute. The staff list submitted by the promoters having been approved by the DTERT as stated supra and the classes having been conducted by the promoters, the students are entitled to get their results declared and they are also entitled to undergo practical examinations and Teaching practice through the Government Teacher Training Institute/DIET.
21. It is informed by the learned Senior Counsel for the appellant in W.A.No.82 and 83 of 2007 that for the year 2006-2007 also students are admitted in the Teacher Training Institute by the promoters. Since the said admissions are made during pendency of the writ appeals and writ petitions, we are of the view that the said first year students shall also be accommodated in a nearby Government Teacher Training Institute within a period of two weeks from the date of receipt of copy of this order and necessary proposal is directed to be submitted by the DTERT to NCTE for the increase of strength to that extend.
22. The Director of Government Examinations, Chennai-6, is directed to arrange for the conduct of Practical examinations to the students of the promoters Institution, who had written the Government examinations and the DTERT is directed to conduct teaching practice through the DIET, Coimbatore and after conducting the same publish their results. The said practical examinations and Teaching Practice shall be conducted and their results shall be published within eight weeks from the date of receipt of copy of this order.
23. W.A.No.82 of 2007, W.A.No.83 of 2007 and W.P.No.624 of 2007, W.P.No.14929 of 2007 are disposed of with the above directions. The order of the learned single Judge stands modified to the above extend. W.A.No.234 of 2007 and W.P.No.18967 of 2007 are dismissed. Connected miscellaneous petitions are closed. No costs.
Index : Yes/No. (S.J.M.,J.) (N.P.V.,J.) Website : Yes/No. 23-1-2008 vr To 1. The Regional Director, National Council for Teacher Education, Southern Regional Committee, 1st Floor, CSD Building, HMT Post, Bangalore - 560 031. 2. The Director of Teacher Education, Research and Training, College Road, Chennai -6. S.J.MUKHOPADHAYA, J. and N.PAUL VASANTHAKUMAR, J. vr/ Pre-Delivery Common Judgment in W.A.No.234, 82 & 83/2007 & W.P.Nos.624, 14729 & 18967/2007 23-1-2008