Allahabad High Court
Alka Tripathi D/O Naresh Prashad ... vs State Of U.P. Through Its Secretary, ... on 11 May, 2007
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. In all these writ petitions the facts and legal issues involved are same, hence as agreed by learned Counsel for the parties, have been heard together and are being decided by a common judgment.
2. The facts, in brief, giving rise to these petitions are that the State Council of Education Research and Training (hereinafter referred as 'SCERT') issued a notification on 22.2.2004, pursuant to the State Government order's dated 23/24/1.2004 inviting applications from the candidates possessing B.Ed./LT./, B.P.Ed/D.P.Ed. qualification as institutional candidates from the college/training colleges duly recognized and approved by National Council of Teachers Education (hereinafter referred to as 'NCTE') for admission to "Special B.T.C. Course-2004". The petitioners in all these writ petitions have passed one year's Diploma in Physical Education (in short 'D.P.Ed') from Sri Narheji Mahavidyalay, Ballia (hereinafter referred to as 'the College') between 1996-97 to 2001-02 and applied for admission to the said course. The candidature of the petitioners however has been rejected for the reason that D.P.Ed course conducted by the College was never approved by NCTE and therefore, the petitioners did not possess valid requisite qualification entitling admission to Special BTC Course 2004. Hence these petitions.
3. Before entering the rival submissions and legal niceties of the matter, it would be appropriate to have a few more facts.
4. Prior to 1st July 1995, various courses of teachers training were being conducted by the Universities and colleges affiliated with the respective Universities. With an object to standardize; Teachers' Training Education, the Parliament enacted National Council for Teachers Education Act, 1993 (hereinafter referred to as 'the Act') published in gazette of India dated 30.12.1993 and came into force on 1.7.1995.
5. It would be appropriate to have a bird eye view of the Act and history preceding its enactment. The Government of India set up a body namely National Council of Teachers in 1973 by a resolution with the objective to act as a National Executive body to advise Central and State Governments on all matters pertaining to teacher's education. Its role and status was purely advisory, having no statutory backing and therefore in the next two decades it was realized that it had a very little impact on the standard of teacher training institutions in the country and its growth. The national policy on education, thereafter provided that the NCTE should be armed with necessary resources and capability to accredit institutions of teacher education and provide guidance regarding curricula and methods. Ultimately Parliament enacted the Act which received Presidential assent on 29.12.1993. Sub-section (1) of Section 3 of the Act provides that the Act shall come into force from such date as notified in the official Gazette, by the Central Government. If is not disputed that the Act has come into force on 1.7.95. Section 2(a) defines 'appointed day'; (d) defines 'examining body'; (e) defines 'institutions'; (i) defines 'recognised institution', (k) defines 'regulations' (I) defines 'teacher education'; (m) defines 'teacher education qualification' and (n) defines 'University', which are reproduced as under:
2. Definitions.-in this Act, unless the context otherwise requires,--
(a) "appointed day" means the date of establishment of the National Council for Teacher Education under Sub-section (1) of Section 3;
(d) "examining body" means a University, agency or authority to which an institution is affiliated for conducting examinations in teacher education qualifications;
(e) "institution" means an institution which offers courses or training in teacher education;
(i) "recognised institution" means an institution recognised by the Council under Section 14;
(k) "regulations" means regulations made under Section 32;
(l) "teacher education" means prograqmmes of education, research or training of persons for equipping them to reach at pre-primary, primary, secondary and senior secondary stages in schools, and includes non-formal education, part-time education, adult education and correspondence education;
(m) "teacher education qualification" means a degree, diploma or certificate in teacher education awarded by a University or examining body in accordance with the provisions of this Act;
(n) University" means a University defined under Clause (f) of Section 2 of the University Grants Commission Act, 1956 and includes an institution deemed to be a University under Section 3 of that Act;
6. Section 3(1) provides for establishment of the Council i.e., National Council for Teacher Education, which reads as under-
3. Establishment of the Council.--(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint there shall be established a Council to be called the National Council for Teacher Education.
7. Section 12 provides Functions of the Council, which includes laying down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognized institutions; norms for any specified category of courses or trainings in teacher education including the minimum eligibility criteria for admission thereof, the method of selection of candidates, duration of the course, course contents and mode of curriculum; guidelines for compliance by recognized institutions, for starting new courses or training and for providing physical and instructional facilities, staffing pattern and staffs' qualifications; standard in respect of examinations leading to teacher's education qualifications, criteria for admission to such examinations and schemes of courses of training; guidelines regarding tuition fees and other fees chargeable by recognized institutions etc. Section 13 confers power upon the Council to inspect recognized institutions for the purpose whether they are functioning in accordance with provisions of law and in such manner as prescribed under the law and regulation framed thereunder. Section 14 provides for recognition of institutions offering course or training in teacher education. Section 15 applies for new courses. Section 16 provides that no examining body on or after the appointed day shall hold any examination in a course or training conducted by recognized institutions unless recognition has been granted by: the Council. Section 17 provides consequences of contravention of the provisions of the Act. Sections 14, 15, 16 and 17 readasunder-
14. Recognition of institutions offering course or training in teacher education-(1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations;
Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee.
(2) The fee to be paid along with the application under Sub-section (1) shall be such as may be prescribed.
(3) On receipt of an application by the Regional Committee from any institution under Sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall,-
(a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfills such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or
(b) if it is of the opinion that such institution does not fulfill the requirements laid down in Sub-clause (a), pass an order refusing recognition to such institution for reasons to be recorded in writing;
Provided that before passing an order under Sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a written representation.
(4) 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 (5) Every institution, in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under Clause (b) of Sub-section (3).
(6) Every examining body shall, on receipt of the order under Sub-section (4)-
(a) grant affiliation to the institution, where recognition has been granted; or
(b) cancel the affiliation of the institution, where recognition has been refused.
15. Permission for a new course or training by recognized institution- (1) Where any recognized institution intends to start any new course or training in teacher education, it may make an application to seek permission therefore to the Regional Committee concerned in such form and in such manner as may be determined by regulations.
(2) The fees to be paid along with the. application under Sub-section (1), shall be such as may be prescribed.
(3) On receipt of an application from an institution under Sub-section (1), and after obtaining from the recognized institution such other particulars as may be considered necessary, the Regional Committee shall-
(a) if it is satisfied that such recognized institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfills such other conditions required for proper conduct of the new course or training in teacher education, as may be determined by regulations, pass an order granting permission, subject to such conditions as may be determined by regulation; or
(b) if it is of the opinion that such institution does not fulfill the requirements laid down in Sub-clause (a), pass an order refusing permission to such institution, for reasons to be recorded in writing;
Provided that before passing an order refusing permission under Sub-clause (b) the Regional Committee shall provide a reasonable opportunity to the institution concerned for making a written representation.
(4) Every order granting or refusing permission to a recognized institution for a new 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 recognized institution and to the concerned examining body, the local authority the State Government and the Central Government.
16-Affiliating body to grant affiliation after recognition or permission by the Council-Notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day-
(a) grant affiliation, whether provisional or otherwise, to any institution; or
(b) hold examination, whether provisional or other wise, for a course or training conducted by a recognized institution.
unless the institution concerned has obtained recognition from the Regional Committee concerned, under Section 14 or permission for a course or training under Section 15.
17-Contravention of provisions of the Act and consequences thereof- (1) Where the Regional Committee is, on its own motion or on any representation received from any person, satisfied that a recognized institution has contravened any of the provisions of this Act, or the rules regulations orders made or issued thereunder, or any condition subject to which recognition under Sub-section (3) of Section 14 or permission under Sub-section (3) of Section 15 was granted, it may withdraw recognition of such recognized institution for reasons to be recorded in writing;
Provided further that no such order withdrawing or refusing recognition passed by the Regional Committee shall come into force only with effect from the end of the academic session next following the date of communication of such order.
(2) A copy of every order passed by the Regional Committee under Sub-section (1)-
(a) shall be communicated to the recognised institution concerned and a copy thereof shall also be forwarded simultaneously to the University or the. examining body to which such institution was affiliated for cancelling affiliation; and
(b) shall be published in the Official Gazette for general information.
(3) Once the recognition of a recognized institution is withdrawn under Sub-section (1), such institution shall discontinue the course or training in teacher education, and the concerned University or the examining body shall cancel affiliation of the institution in accordance with the order passed under Sub-section (1), with effect from the end of the academic session next following the date of communication of the said order.
(4) If an institution offers any course or training in teacher education after the coming into force of the order withdrawing recognition under Sub-section (1), or where an institution offering a course or training in teacher education immediately before the appointed day fails or neglects to obtain recognition or permission under this Act, the qualification in teacher education obtained pursuant to such course or training or after under taking a course or training in such institution, shall not be treated as a valid qualification for purposes of employment under the Central Government, any State Government or University, or in any school, college or other educational body aided by the Central Government or any State Government.
8. Thus in short the Act provides that all institutions imparting education in teachers' training shall apply for recognition to NCTE by the appointed date which was notified as 17.8.1995. It also prohibits any new course to be started by any institution without obtaining recognition from NCTE. It further prohibits any University or institution to recognize, approve, impart or hold examination in a teachers training course unless it is approved or recognized by NCTE.
9. In order to decentralize the functioning of the Council, Section 20 provides for establishment of Regional Committee which shall function as assigned by the Council or may be determined by the Regulations. Section 31 confers power upon the Central Government to make rules and besides the general power, under Sub-section 2 (f) of Section 31 it can also make rule in respect of fees payable on application for obtaining recognition under Sub-section (2) of Sections 14 and 15. Section 32 confers power upon the Council to make regulations. The relevant parts of Sections 31 and 32 are as under:
31. Power to make rules- (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely-
(f) the fees payable on application for obtaining recognition under Sub-section (2) of Section 14 and for obtaining permission under Sub-section (2) of Section 15.
32. Power to make regulation (1) The Council may by notification in the Official Gazette, make regulations not inconsistent with the provisions of this Act and the rules made thereunder, generally to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:
(d) the norms, guidelines and standards in respect of-
(i) the minimum qualifications for a person to be employed as a teacher under Clause (d) of Section 12;
(ii) the specified category of courses or training in teacher education under Clause (e) of Section 12;
(iii) starting of new courses or training in recognised institutions under Clause (f) of Section 12;
(iv) standards in respect of examinations leading to teacher education qualifications referred to in Clause (g) of Section 12;
(v) the tuition fees and other fees chargeable by institutions under Clause (h) of Section 12;
(vi) the schemes for various levels of teachers education; and identification of institutions for offering teacher development programmes under Clause (1) of Section 12;
(e) the form and the manner in which an application for recognition is to be submitted under Sub-section (1) of Section 14;
(f) conditions required for the proper functioning of the institution and conditions for granting recognition under Clause (a) of Section 14;
10. The case of the petitioners is that the D.P.Ed. Course of the College was duly recognized by Vir Bahadur Singh Purvanchal University (hereinafter referred to as "the University") and various examinations were conducted by the University. It is an University established under U.P. State Universities Act, 1973 (hereinafter referred to as "1973 Act") and is a State University. Since the State University was conducting examination, and has represented throughout that the College was running a valid course, therefore, the petitioners took admission in various years between 1996-97 to 2001-2002 and passed D.P.Ed. course from the said institution for which examination was conducted by the University. They were also awarded provisional certificate of 'pass' and marksheet by the University. In 2004 when SCERT notified for admission in Special B.T.C. Course 2004, the petitioners possessing valid qualification of D.P.Ed, applied for the same but their candidature has been cancelled on the ground that D.P.Ed. Course of the aforesaid institution is not recognized by NCTE. Neither NCTE nor any other responsible authority at any point of time informed the petitioner that the said course was not valid. Therefore, cancellation of petitioners' candidature on the ground that D.P.Ed, course undergone by them is not valid, is illegal and has caused injustice and hardships to them for certain reason over which neither they had any control nor are responsible.
11. NCTE has filed its counter affidavit stating that the Act was made operative from 1.7.1995. NCTE was established on 17.8.1995. Regional Committee was established under Section 20(1) of the Act on 3.11.1995 and notification was published in the official Gazette on 6.1.1996. The Regulations under Section 32(1) were framed by NCTE on 29.12.1995. All the existing institutions running teacher education courses were liable to seek recognition from NCTE from the session 1996-97 and onwards. In the result any new institution from 1996-97 and onwards could not have run a teacher's training course, imparting teaching and training without obtaining recognition from NCTE. Even the University was not competent to grant recognition and hold examination unless recognition is granted by NCTE. The College in the present case submitted for the first time application on 22.11.1997 to NCTE seeking recognition for running D.P.Ed course but the application did not fulfil all the requirements as was necessary under the Regulations, namely no objection certificate (in short 'NOC') from State Government was not submitted though it was essential under regulations. The College was granted several opportunities to submit NOC and lastly vide letter dated 23.9.1999 the college was directed to submit NOC by 5.10.1999, failing which its application was liable to be cancelled and no further correspondence would be entertained in future. The College still failed to submit requisite certificate and consequently the Regional Committee in its meeting dated 8.10.1999 resolved to reject application of the college which was communicated vide letter dated 19.11.1999, also commanding the college not to allow any admission in the aforesaid course. The order dated 19.11.1999 attained finality since neither any appeal was filed by the college nor any other proceeding was initiated for review of the aforesaid order. Therefore, the D.P.Ed course run by the college throughout is wholly illegal, violative of Sections 14 and 17(4) of the, hence petitioners' candidature has rightly been rejected by SCERT.
12. A Counter affidavit has also been filed on behalf of State of U.P., respondent No. 1 stating that the college is an unaided, self financed educational institution, established in the year 1991 and was granted affiliation with the University in 1993 to run B.A., B.Com., B.Sc. and B.Ed. Affiliation was also granted to run Postgraduate classes of Sociology, History, Geography and Sanskrit. Vide letter dated 23.9.96, the Deputy Registrar of the University informed the college that Vice Chancellor has permitted the College to start classes for D.P.Ed. from 1996-97 with a maximum 120 seats. No evidence is available on record to show that affiliation was granted for 1997-98. Vide letter dated 13/14.9.99 recognition was granted for D.P.Ed. course for 1999-2000 and vide letter dated 5.2.03 the University permitted 470 seats for the session 2001-2002 in D.P.Ed. course. However, as informed by the College vide letter dated 2.3.2005 to the Director (Higher Education), Allahabad, it appears that it admitted students in D.P.Ed. course between 1996-97 to 2001-02 every year and those students appeared in the examination conducted by and University. The details are given as under-
Year Number of Failed Passed
admitted
students
in D.P.Ed.
1996-97 120 33 87
1997-98 120 03 117
1998-99 250 04 246
1999-2000 220 12 208
2000-01 320 05 315
2001-02 448 25 417
13. The University in its counter affidavit has said that the Executive council of the University resoived to permit affiliated colleges of the University to run self financed employment oriented Diploma Course w.e.f. session 1990. Pursuant to the aforesaid decision, a number of institutions applied for running D.P.Ed. Courses. Post Graduate College, Ghazipur and Sri Narheji Mahaviddyalay, Narhi Rasra, Bailia applied for the sessions 1995-96 and 1996-97 to 2001-02 respectively. The University passed a resolution on 22.8.2001 that the colleges imparting D.P.Ed. course would be inspected by four member committee constituted by Executive Council. On the basis of the report of such committee, the Council would decide whether the colleges running D.P.Ed. courses be further recognized by the technical body. The college also applied for NOC to the State Government, but the request of the college was rejected on the ground that Diploma courses are not to be run by the colleges. Thereafter the University issued letter dated 25/27.9.2002 informing all the colleges not to take admission in D.P.Ed. courses for the session 2002-2003 and onwards.
14. Sri Ashok Khare, Senior Advocate, assisted by Sri K.C. Shukla, appearing for the petitioners vehemently contended that the course was conducted by the college under affiliation granted by the University. The petitioners were never informed that it is not a recognized and valid course. Under Section 14 of the Act once the application for recognition submitted and is pending for consideration before NCTE, the college was entitled to continue to run its course till NCTE takes a final decision on the said application. Admittedly the order was passed by NCTE on 19.11.1999 and therefore in view of Section 14 of the Act, at least the D.P.Ed. course run by the college till the next session i.e. 1999-2000 was valid and cannot be treated unrecognized. Thus rejection of candidature of the petitioners who have passed the aforesaid course upto 1999-2000 is apparently erroneous. He further contended that the Act has been amended by The National Council for Teacher Education (Amendment and Validation) Ordinance, 2006 (hereinafter referred to as "Ordinance 2006") published in the Gazette of India dated 11.9.2006, whereby Sections 17A, 18A, 18B, 18C, 18D, 18E, 18F, 18G and 30A have been inserted which permit various institutions running training in teachers education courses before the specified date to apply under Sub-section (1) of Section 18A of the amended Act by the specified date and pursuant to the said amendment, an application has already been submitted by the college on 19.11.2006 before the Regional Director, NCTE, Jaipur for recognition of D.P.Ed. course for the Sessions 1996-97 to 2001-02. The said application is pending for consideration. So long as this application is pending, the petitioners cannot be treated to be unqualified inasmuch as if the recognition is granted, the legal fiction under Section 18A of the amended Act provides that the courses run in the past shall be deemed to be valid and by virtue of legal fiction the petitioners D.P.Ed. course would stand validated.
15. Shri Rajiv Joshi, learned Counsel for NCTE, Shri Amit Tiwari, Advocate appearing for University and the learned Standing Counsel appearing for State of U.P. and SCERT opposed all these writ petitions as per the stand taken in their respective counter affidavits. Shri Sudhakar Pandey, Advocate, who has appeared on behalf of the College supported the case of the petitioners and adopted the arguments of Shri Khare.
16. During the course of argument, this Court also directed Sri Rajiv Joshi, learned Counsel appearing for NCTE to place before the Court original record of NCTE showing correspondence, if any, entered by it with the College in order to show whether NCTE took any steps restraining the College from running D.P.Ed. Course 1996-97 till 1999 when it had applied for recognition and approval and the matter was pending before NCTE. The original record was produced before the Court and has been perused.
17. This bunch of petitions involve career of large number of persons who have passed D.P.Ed. course from the College which was recognized by an University established under 1973 Act. The Court is conscious of the fact that the petitioners are not guilty of any suppression of fact or misrepresentation or fraud but have acted upon a representation of the College and the University that D.P.Ed. Course is being validly run and believing the same to be correct, have not only paid fees towards academic courses, examination and other to the College and the University but have also devoted full one year's time, laboured to pass out the course and now are faced to a wholly unwarranted, unexpected and strange obstacle in the shape of legality of the course depriving them the very right to get admission in Special BTC course which is a necessary qualification for appointment as Assistant teacher in a Primary school in U.P.. It is said that law is good but justice is better and therefore, the Court may consider this problem from the angle of doing justice to the people at large bereft of legal niceties but in my view justice in accordance with law is best and the only way this Court should adopt since rule of law must prevail.
18. Certain facts which emerge from the pleadings and other documents annexed thereto as also the original record produced by NCTE are as follows. The College was established in 1991 and was granted affiliation with the University. It was running various undergraduate courses but not D.P.Ed. Course. On the appointed date, i.e., 17.8.1995 admittedly, it was not running or imparting education in the concerned Teachers' Training Course, namely, D.P.Ed. However, it sought to commence its D.P.Ed. Course from Session 1996-97 with 60 seats for which it applied to the University seeking its permission. The University vide its letter dated 28.9.1996 permitted and authorised the College to start D.P.Ed. Course for the Session 1996-97 with 120 seats. Without seeking any approval/recognition from NCTE, the College commenced DP.Ed. Course from 1996-97 and examination was conducted by the University. For the first time, College submitted application dated 26.6.1997 to NCTE for the Session 1997-98 for 120 seats in D.P.Ed. The form it submitted before NCTE, original copy whereof has been placed by the NCTE before this Court, shows that the College declared itself to be an existing institution and sought recognition as if it was an old institution running the aforesaid course since before the notified date i.e., 1.7.1995. Columns 1, 2 and 3 of the application form filled in by the College are reproduced as under:
1. RECOGNITION OF INSTITUTION: EXISTING NEW
2. ARE YOU APPLYING FOR:
a. RECOGNITION OF OLD INSTITUTION YES NO
b. PERMISSION TO START NEW COURSE(S) YES NO
c. ADDITIONAL INTAKE YES NO
3. EXISTING COURSE(S): PLEASE WRIT NAME OT COURSE(S)
Teacher Education Duration in Seats Additional
Course(s) Year(s) proposed Seats
a. D.P.Ed. One year 60 120
b. .... .... .... ....
c. .... .... .... ....
19. The application form was appended with an undertaking signed by Dr. Shiv Swarup Sahai, Principal of the College. Though the application form signed on 26.6.1997 but in fact sent to NCTE by registered post vide receipt No. 1103 dated 18.12.1997 which was acknowledged at Regional Centre Jaipur on 22.12.1997. Vide letter dated 19.2.1998 NCTE informed the College that in respect to the institutions where teachers' training course was existing on 17th August 1995, for them, the last date for submission of application seeking recognition was 18.8.1997 and the information was published in various newspapers of the country. However, the application sent by the College was received on 22.12.1997, therefore, the same could not be considered for the Session 1997-98. For the purpose of considering application for subsequent Session, it required following documents from the College:
1. Copy of certificate issued by the State Government recognizing the aforesaid course;
2. Affiliation certificate issued by the University; and
3. Information as to since when the aforesaid course is running in the College.
20. The Principal of the College vide letter dated 30.3.1998 informed NCTE that as per National Education policy recognised by the State Government, the College was granted recognition by the University for the aforesaid course. It also appended letter dated 23.9.1996 sent by the University granting permission for running D.P.Ed. Course. It further said that it-is running D.P.Ed. Course pursuant to the recognition granted by the University since academic session 1996-97. The aforesaid letter was received by NCTE on 20.4.1998. Thereafter vide letter dated 18.4.1998, NCTE required the College to furnish NOC of the State Government. It appears that the Special Officer on duty, Higher Education, Government of U.P. sent a letter No. 701/70-6-98-2(35)/93 T.C. dated 25.5.1998 to the Manager of the College stating that as per policy of the Government the affiliation for D.P.Ed. is not to be sanctioned by the Government/Chancellor and, therefore, NOC should be demanded from the authority who has granted affiliation. The College, however, continued with impunity to run D.P.Ed. Course and the University also did not care as to whether the provisions of the Act had been complied or not and instead, went on holding regular examinations and issuing certificates/degrees to the candidates who passed the aforesaid course from the College. The action of the College and the University was ex facie contrary to the provisions of the Act. Moreover, in view of Regulation 5(e) of the Act, NOC from the State Government was necessary and in absence thereof the application of the College seeking approval of recognition for D.P.Ed. Course was liable to be rejected. It is not disputed that requisite NOC was never submitted by the College to NCTE despite repeated opportunities whereafter NCTE vide letter dated 19.11.1999 rejected application seeking approval/recognition of D.P.Ed. Course. The validity or sanctity of D.P.Ed. Course run by the College from Session 1996-97 and onwards in the light of the provisions of the Act, therefore, if analysed, would make it abundantly clear that the College as well as University have acted in the teeth of the provisions of the Act.
21. A combined reading of the various provisions of the Act makes it clear that on or after the appointed day, the institution offering or intending to offer any course or training of teacher's education may make an application to the Regional Committee for grant of recognition under the Act in the manner as determined by Regulation. Such an institution where the course is continuing before the appointed day, shall continue to run such course for a period of six months and shall continue to run the course thereafter until disposal of the application by the Regional Committee. Where the recognition is refused the institution which is continuing to run such course, it was offering before the appointed day and continued by virtue of provision of Section 14(1) of 1993 Act, shall discontinue such course and training from the end of academic session next following the date of receipt of the order refusing recognition. Sub-section (6) of Section 14 obligates the Examining body to grant affiliation to the institution, where recognition has been granted, or cancel the affiliation of the institution where recognition has been refused. Section 16 further makes it obligatory upon the affiliating body not to grant any affiliation, whether provisional or otherwise, or hold examination, whether provisional or otherwise, for a course or training conducted by the institution unless it has obtained recognition under Section 14 of 1993 Act from the Regional Committee. Section 16 starts with non obstente clause and therefore has overriding effect upon any other law having contrary provisions for the time being enforce. Thus even the University i.e. the examining and affiliating body is prohibited and is incompetent to grant sanction/affiliation to an institution to offer a course or training in teacher's education unless recognized under Section 14 of the Act. The qualification obtained in contravention of the provisions of the Act shall not be treated to be a valid qualification for the purposes of employment in Central Government or State Government, University, school or any educational body added by the Central Government or State Government by virtue of Section 17(4) of 1993 Act..
22. It is not disputed that the course of D.P.Ed. was not being run by the college before the appointed day i.e. 17.8.95 and therefore, the college could not have started the said course unless recognition is granted under the Act. It is also not disputed that in exercise of the power under Section 32 of the Act the Council trained regulations for teacher's education, namely National Council For Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standard for recognition of teacher education programmes and permission to start new course or training) Regulations 1995 (hereinafter refened as '1995 Regulations'). Regulation 5 deals manner for teacher's education and Regulation 8 deals with the condition of recognition. Regulation 5 (e) and (f) and 8 read as under:
5. (e) Every institution intending to offer a course or training in teacher education but was not functioning immediately before 17.8.1995, shall submit application for recognition with a no-objection certificate from the State or Union Territory in which the institution is located,
(f) Application for permission to start new course or training and/or to increase intake by recognised institutions under Regulation 4 above shall be submitted to the Regional Committee concerned with no-objection certificate from the State or Union Territory in which the institution is located.
********************************** (8) Condition for recognition -(a) Regional Committee shall satisfy itself on the basis of scrutiny and verification of facts as contained in the application for recognition and/or recognition of the institution where considered necessary or any other manner deemed fit, that the institutions nave adequate financial resources, accommodation, library, qualified staff, laboratory and such other conditions required for the proper functioning of the institutions for the course of training in teacher education which are being offered or intending to offer.
(b) Regional committee shall ensure that every institution applying for recognition fulfils he conditions given in Appendix III.
23. The Act enacted by the Parliament is referable to Entry 66 of List 1 of Schedule VII of the Constitution. Entry 66 of the Constitution of India is about Co-ordination and determination of standards in institutions for Higher Education or Research and Scientific and Technical Institutions. The said subject is exclusively governed by Entry 66, List 1, Schedule VII of the Constitution. The State thus has no power to encroach upon the said legislative power and has no role in the matter governed by the Parliament enactment. The affiliation and recognition granted by the University under the 1973 Act would not have overriding effect over the Act. In State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Ors. , the Apex Court held-
The law appears to be very well settled. So far as co-ordination and determination of standards for higher education or research in scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List 1 of Schedule VII to the Constitution and State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as Sate Legislatures and appropriate Act can be by the State Legislature subject to limitations and restrictions under the Constitution...Para-47
24. In St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education and Anr. , it was held;
the regulation framed by the council under Section 32 has to be observed strictly and an application submitted without complying requirements under the Act and Regulation framed thereunder would not be a valid application.
25. Considering the vires of Section 17(4) of the Act, in Union of India and Ors. v. Shah Goverdhan L. Kabra Teachers' College , the Court held -
The consequences of conducting of an unrecognized course prohibiting employment is not a matter relating to the State but it pith and substance would follow. It is legislative of a parliament to enact 1993 Act covering the consequences of its contravention otherwise the enactment itself would be teeth-less.
In para 8 of the judgment the Court held:
Bearing in mind the aforesaid principles of rule of construction, if the provisions of the impugned statute, namely, the National Council for Teacher Education Act, 1993 are examined and more particularly Section 17(4) thereof which we have already extracted, the conclusion is irresistible that the statute is one squarely dealing with coordination and determination of standards in institutions for higher education within the meaning of Entry 66 of List 1 of the Seventh Schedule. Both Entries 65 and 66 of List 1 empower the Central Legislature to secure the standards of research and the standards of higher education, the object behind them being that the same standards are not lowered at the hands of the particular State or States to the detriment of the national progress and the power of the State Legislature must be so exercised as not to directly encroach upon power of the Union under Entry 66. The power to coordinate does not mean merely the power to evaluate but it means to harmonies or secure relationship for concerted action. A legislation made for the purpose of coordination of standards of higher education is essentially a legislation by the Central Legislature in exercise of its competence under Entry 66 of List 1 of the Seven the Schedule and Sub-section (4) of Section 17 merely provides the consequences if an institution offers a course or training in teacher education in contravention of the Act though the ultimate consequences under Sub-section (4) of Section 17 may be that an unqualified teacher will not be entitled to get an employment under the State or Central Government or in a university or in a college. But by no stretch of imagination can the said provision be construed to mean a law dealing with employment as has been held by the High Court in the impugned judgment....Para 8.
26. The effect of imparting Teacher's Training of a course not recognized under the Act especially came up for consideration in Rajesh Kumar Gupta and Ors. v. State of U.P. and Ors. , wherein the Special BTC course sought to be conducted by State of U.P. in the year 2001 without obtaining recognition under the Act was considered. Upholding the view taken by this Court, it was held, since it was an unrecognized teacher's training course, the State Government was not competent to declare the said course of teacher's education as equivalent qualification for appointment to the post of Assistant teachers in primary schools.
27. Thus, it is no doubt true that the provisions of the Act with reference to Sections 14, 15 and 17 have been held to be mandatory, but it would be appropriate to scrutinize the aforesaid provisions as they would operate in various institutions. Section 14(1) requires an institution which is offering '' or intending to offer a course or training in teacher's education on or after the appointed date, for grant of recognition under the Act to submit application to the Regional Committee concerned in such manner as may be determined by regulations. Proviso thereof permits an institution offering the course or training immediately before appointed day, to continue to run such course for a period of six months and if it has made an application for recognition within the said period it may run its course until disposal of the application by the Regional Committee. The Act is silent as to whether an institution which is not running the course before appointed date but intends or offers such course after appointed date and if it has submitted an application for recognition whether during the pendency of such an application the institution can run the course or not. To me it appears that if an application in the prescribed form had been submitted, then during the pendency of such application, the institution may run such course. This is fortified from the fact that Sub-section (5) of Section 14 provides that every institution in respect of which recognition has been refused shall discontinue the course or training in teacher's education from the end of the academic session next following the date of receipt of the order refusing recognition passed under Clause (b) of Sub-section (3). The words "every institution" are not confined only to the "institution" covered by Sub-section (1) of Section 14 but is wide enough to include every institution which was running the course before appointed day or running the course after the appointed day. The Act, therefore, provides the consequences of refusal of approval of the institution by stopping the courses from the end of the academic session next following the date of receipt of the order refusing recognition passed under Clause (b) of Sub-section (3) of Section 14. Till such a refusal is conveyed to the institution, in my view, it would be entitled and eligible to run the course provided the University has recognized and granted affiliation and is conducting examination. I am strengthened in taking the aforesaid view by reading Sub-section (6) of Section 14 which provides that every examining body on receipt of order under Sub-section (4) shall cancel the affiliation of the institution where recognition has been refused. Sub-section (6) of Section 14 makes it obligatory for the examining body to cancel the affiliation of the institution where recognition has been refused and not prior thereto. Provisions 14 and 15 of the Act thus are mandatory since consequences have been provided under Section 17 of the Act. However, even this does not help the petitioners since the College did not submit application in accordance with Rules. Therefore, it could not have been entitled to run the course during pendency of such application.
28. The matter does not rest here itself. This Court is at great pains to find that for the illegal act of the College, equally responsible are statutory bodies like, University and even educational authorities of the State Government who are mainly responsible to ensure that scrupulous and illegal institutions do not run in the State defrauding innocent and poor citizens. They have failed in their duty to check the aforesaid illegal activities on the part of the College in collusion with the University. I gave full opportunity to the College as well as University to explain as to under what circumstances they have indulged in running the aforesaid course without any approval/recognition from NCTE but no reply or explanation whatsoever came forth. On behalf of the College only this much has been stated that pursuant to the amendment of the Act vide Ordinance, 2006 a fresh application has been submitted by the College to NCTE on 19.11.2006. In my view the College is guilty of running illegal and unauthorised course of D.P.Ed. From 1996-97 onwards and the University is equally guilty of permitting the College to run such a course though it was not authorised under the Act. The approach and conduct of the College and University as well as educational authorities of the State Government is reprehensible, deplorable and has to be deprecated in strongest words. All of them have acted with sheer negligence towards unlawful activities with a blind eye. It is also surprising that such activity has continued unabated for long period of 6-7 years and in the meantime, the petitioners and similarly placed other persons who have spent their valuable time in pursuing the aforesaid course besides spending their parents' hard earned money towards fee and other charges, have suffered for no fault of theirs. Admittedly they are not guilty of any kind of fraud or misrepresentation on their part but sheer victim of dispassionate or active collusion of the authorities including the University in permitting the College to run such unauthorised course. The Court can understand that the College being privately managed institution would have been interested in earning more money than showing concern for observance of law but it is surprising that the University as well as educational authorities have also permitted continuance of the aforesaid course to go on for almost 6-7 years despite clear instructions from NCTE not to admit students in the aforesaid course.
29. At this stage, this Court also cannot absolve NCTE from any liability for the reason that it had come to its notice from the application form of the Colelge that it was running D.P.Ed. Course from 1996-97 without having any approval or recognition from NCTE and the University is conducting examination of the said course, yet it did not take any action-against the University for illegally permitting to conduct examination of the the aforesaid course which was not recognised by NCTE. Learned Counsel for NCTE stated that the Act does not give sufficient teeth to NCTE for taking any punitive action against the College or University if they are running a course or conducting an examination in violation of the the provisions of the Act. In my view, the responsibility of NCTE is much more severe and broader. Whenever it comes to its knowledge that any College or University is running a course illegally, by way of advertisement it ought to have made this fact known to public at large that the College is running an illegal course and the University is conducting examinations unauthorisedly and illegally so that innocent citizens may be protected. Except the letter dated 19.2.1998 sent by NCTE to the College in question the record placed before the Court does not show that similar intimation was sent by NCTE to the University or educational authorities of the State also directing them to take appropriate steps prohibiting perpetuation of such illegality by the College. NCTE is also guilty of not taking effective steps by restraining the College from continuing the aforesaid course or the University from conducting examination of the said course or referring the matter to the State Government for taking appropriate legal action against the College or University as the case may be. Even the order dated 19.11.1999 issued by NCTE rejecting application of the College, I am not shown that the same was notified in Official Gazette as required under Section 14(4) of 1993 Act, which would have caused a presumption of knowledge to all regarding such order.
30. Whether all these laches on the part of the respondents would have some bearing or despite all kinds of laches, omissions, laxities etc on the part of all the respondents it is only the petitioners who can be made victim of these activities. The poor and helpless citizens who themselves are victim of the action/inaction on the part of the State or its instrumentality are crying for justice from this Court. Can the Court permit the helpless citizen to suffer for bona fide believing the dictum that all transactions which also involve statutory body or authorities must have been performed in the manner prescribed in law and have validly been executed unless shown otherwise. As students, the petitioners did what ever possible at their level to know about the validity of the course. The University established under a Legislative Enactment was the examining body of the course and had permitted the College to run the said course. The State Government, and its authorities never pointed out in any manner that either the College or University is not acting validly to run the aforesaid course. The application of the College seeking NOC was before the State Government i.e. respondent No. 1, and thus it cannot be said that it was not aware of the fact that the College is running D.P.Ed, course and examination is being conducted by the University though approval/recognition matter under the Act is pending consideration before NCTE. In these circumstances I find it difficult to hold that the petitioners are guilty of anything in undergoing the aforesaid course, yet the course as such cannot be said to be a valid one. This is really unfortunate.
31. The discussion as aforesaid makes two things very clear: (1) D.P.Ed. Course of the College for the sessions in question was unauthorised and illegal. (2) The petitioners were not guilty of any fraud, misrepresentation or other kind of illegal act on their part but they are victims of the unlawful act of the College, University, the State Government and its authorities. Be that as it may, despite the fact that this Court is shaken by the illegality committed on the part of the College, University and other respondents, it find it difficult to confer validity on the course which has undergone by the petitioners. Since there is no relief sought by the petitioners against the College or University, etc., therefore, the hands of the Courts are tight in passing any order in respect to damages etc. against the College or University. The petitioners are at liberty to take such action as permissible in law for the said purpose. However, since the course undergone by the petitioners is not a valid and legal Teachers' Education Course, this Court cannot direct SCERT to treat the petitioners qualified for admission to Special B.T.C. Course.
32. At this stage, learned Counsel for the petitioners contended that even if the course of D.P.Ed. was not recognised by the NCTE, that would not prevent the petitioners from getting their candidature considered for educational course like Special B.T.C. 2004 inasmuch as, Section 17 of the Act would not have any application at this stage and cannot cause any hindrance.
33. Sub-section (1) of Section 17 provides NCTE or its Regional Committee to withdraw recognition of such institution for which it is SatiSfied that it has contravened any provisions of the Act, or rules regulations, orders made or issued thereunder. The provision uses the word 'may' and therefore, Sub-section (1) confers a discretionary power upon NCTE regarding withdrawal of recognition of the institution if it has contravened any rules or regulation made thereunder. The NCTE even if is satisfied of such violation, is not under an obligation to do so. Sub-section (4) of Section 17 declares that the qualification of the teacher's education which has been obtained from an institution which has failed or neglected to obtain recognition or permission under the Act such, qualification shall not be treated to be valid qualification for the purpose of employment under Central Government, any State Government or University, or in any school, college or other educational body aided by the Central Government or any State Government. The invalidity is attached to employment in the Central Government, State Government or University, or in any school, college or other educational body aided by the Central Government or any State Government. Such a qualification, however, has not been invalidated for employment in private Sector or schools and colleges or educational institutions which are not aided by the State Government or Central Government. Moreover, such qualification has not been invalidated for the purpose of receiving any other qualifications but the bar is only in respect of employment. In the case in hand the D.P.Ed. course is a qualification required for the purpose of giving admission in Special BTC course -2004 which is also a teacher's education course and cannot be said to be an employment under the Central Government or State Government or any educational institution as provided under Sub-section (4) of Section 17 of the Act. Thus bar under Section 17 in taking admission for Special BTC Course-2004 is not extended. It is true thus far but no more. Non-application of Section 17 of the Act by itself would not help the petitioners for the reason that an educational qualification which is not valid, this Court will not come to rescue'of a person possessing such unlawful qualification to claim any benefit thereof whether it is an admission in Special BTC 2004 or any other benefit. This would be against all canons of justice. Moreover, the advertisement dated 22.2.200-1 published by respondent No. 2 also shows that it had invited applications from all the applicants having obtained B.P.Ed./D.P.Ed./C.P.Ed. etc. qualification from any institution recognized by NCTE/Universities and have undergone courses from the colleges as a regular students duly affiliated by respective Universities. The prescribed qualifications required for admission to Special BTC Course is reproduced as under:
Nirdharit Yogyata- Rashtriya Adhyapak Shiksha Parishad Dwara Manyata Prapt Sarkar Dwara Sanchalit/Sthapit Vishwavidyalayon; Manyata Prapt Mahavidyalayon/Prashikshan Mahavidyalayon Se Sansthagat B.P.Ed./D.P.Ed/C.P.Ed./Prashikshit Snatak Yogyatadhari.
34. Similar matter has been considered recently by another Hon'ble Single Judge in Civil Misc. Writ Petition No. 17664 of 2005 Rajiv Kumar and Ors. v. State of U.P. and Anr. decided on 26th March 2007 and it has been held that neither on compassion nor equity nor otherwise, the candidates who had undergone an education qualification which is not approved or recognised by NCTE and is in violation of provisions of the Act would be entitled to claim admission in Special BTC course 2004. I entirely agree.
35. Learned Counsel for the petitioners contended that since they are not responsible or guilty, they should not be made to suffer for the fault of others and placed reliance on State of U.P. v. Reena Singhal (2000) 9 SCC 391 and Prof. Yashpal and Anr. v. State of Chhatisgarh and Ors. 2005 (2) ESC 129.
36. In Reena Singhal (supra), the candidate was granted admission in the department of Gynecology though the said course was not recognized by Medical Council of India. Neither at the time of counseling when a seat of the aforesaid course was offered to another candidate she was made aware that the cours was not recogenized nor it was disclosed either in the prospectus or brochure of the college and therefore, the candidate was misled on account of misrepresentation of the authority including the State Government. It was seriously deprecated by this Court as well as the Apex Court and a direction was issued to the State Government to grant admission to such candidate in another duly recognized course of specialty which direction was confirmed by the Apex Court. The aforesaid authority is not applicable in the present case inasmuch as, there, a combined competitive test was conducted by the State of U.P. in pursuance whereto admission was given to the concerned students, and therefore, direction was issued to grant admission to such candidates in another duly recognized course of specialty. This Court did not allow or recognize admission or course which was not recognized by the Medical Council of India but instead the candidates were permitted to undergo a recognised course.
37. In Prof. Yashpal and Anr. (supra), the Court while declaring Sections 5 and 6 of Chhattisgarh Niji Kshetra Vishwavidyalaya Adhiniyam, 2002 ultra vires quashed notification constituting University under the State Act. In order to protect interest of students undergoing education in such private University, it directed the State Government to take appropriate measure for such institutions for affiliation with already existing State Universities provided they fulfil norms and standards for the said purposes. The aforesaid judgment is also wholly inapplicable for totally different facts and circumstances involved therein. This Court find'that the Apex Court did not validate any unauthorized or illegal course.
38. Lastly the learned Counsel for the petitioners contended in view of the amendment brought by the Ordinance 2006, and the fact that the college has submitted application, the matter needs to be deferred and if the recognition, it granted by NCTE the legal friction provided that the D.P.Ed. course of the petitioners would be deemed to have validated. Though at the first flush the argument appears to be attractive but has to be rejected for the reason that from the various provision of the relevant Act as well as in the light of various decision of the Apex Court and this Court also, these provisions are not applicable to the College in question in the facts and circumstances of the case. The very first obstruction in the way of the College in question would be that admittedly it has stopped D.P.Ed. Course from the Session 2002-03 and onwards. Section 18-B is applicable to only such institutions where the course or training is being offered before the specified date and the institution has failed to make an application under Section 17(4) of 1993 Act, but the examining body granted affiliation and had held examination for such course. In the case in hand the application was submitted by the college which was rejected by NCTE in 1999 and no appeal preferred under Section 18 of the Act. The order rejecting application attained finality. Even an appeal could have been preferred under Section 10 of the Act as amended by Ordinance 2006 against the order rejecting recognition but in this case no such appeal has been filed and instead the College has chosen to file an application under Section 18-B. In my view the petitioners can not get any advantage under Ordinance 2006.
39. In the result, the relief sought by the petitioners cannot be granted. The writ petitions, therefore, lack merit and are accordingly dismissed. There shall be no order as to costs.