Madhya Pradesh High Court
Pt. Ramswaroop Gautam Memorial ... vs The National Council For Teacher ... on 13 March, 2018
Bench: Sanjay Yadav, Ashok Kumar Joshi
1 WP.5176.2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
Hon'ble Shri Justice Sanjay Yadav
&
Hon'ble Shri Justice Ashok Kumar Joshi
WRIT PETITION NO.5176 OF 2016
Pt. Ramswaroop Gautam Memorial Educational and Social
Welfare Society, Dabra, District Gwalior (M.P.) (Running
Institution in the Name of Gautam College, Mandi Road,
Dabra, District Gwalior),
through its Secretary Mukesh Kumar Gautam
Vs.
The National Council for Teacher Education (NCTE) & Ors
******************
Shri K.N. Gupta, learned Senior Counsel with Shri R.S.
Dhakad, learned counsel for the petitioner.
Shri R.P. Singh, learned counsel for respondents No.1 & 2.
********************
Whether approved for reporting: Yes/No
ORDER
(13/03/2018) Per Justice Sanjay Yadav:
Challenge is to an order dated 10.02.2016 and 04/07/2016, passed by the National Council for Teacher Education, Western Regional Committee withdrawing the recognition for B.Ed. course and its affirmation by the NCTE.
(2) Recognition was granted to the petitioner for B.Ed.
(Co-Ed.) course of one year vide order dated 04.02.2008 2 WP.5176.2016 by the NCTE Western Regional Committee in exercise of its powers vested under Section 14(3)(a) of the NCTE Act, 1993, with an annual intake of 100 (SEC) students under Clause 7(8) of National Council for Teacher Education (Recognition, Norms and Procedure) Regulation 2009, subject to the fulfillment of the condition that the Institution shall, within one month of the receipt of recognition order, convert the endowment fund account into a joint account to be operated along with an official of the Western Regional Committee. And the institution shall comply with the various other norms and standards prescribed in the NCTE Regulations, as amended from time to time. And fulfillment of all such other requirements as may be prescribed by the other regulatory bodies like UGC and the State Government.
(3) The NCTE in exercise of the powers conferred by sub-section (2) of Section 32 of the Act 1993 and in super-session of the NCTE (Recognition, Norms and Procedure) Regulation 2009 framed NCTE (Recognition, Norms and Procedure) Regulations, 2014 vide Notification No.F.51-1/2014-NCTE (N&S) dated 28/11/2014. Clause 5 of Appendix-4 whereof provided for the following staff pattern:
"5. Staff.
5.1 Academic Faculty.
For an intake of two basic units of 50 students each, that is total students strength of 200, there shall 16 full- time faculty members.
The distribution of faculty across different curricular areas shall be as under:
1. Principal/HoD One
2. Perspectives in Education Four 3 WP.5176.2016
3. Pedagogy subjects Eight (Maths, Science, Social Science, Language)
4. Health and Physical Education One
5. Fine Arts One
6. Performing Arts (Music/Dance/Theatre) One Note: (i) The faculty positions listed under different subject categories may teach course (s) in the Teacher Education Programme across curricular areas specified, and can cater to both foundation and pedagogy course(s). If the students' strength for two years is one hundred (with one basic unit) only, the number of faculty shall be reduced to
8.
(ii) Faculty can be utilised for teaching in flexible manner so as to optimize academic expertise available.
5.2 Qualifications The faculty shall possess the following qualifications:
A. Principal/HoD
(i) Postgraduate decree in Arts/Sciences/Social
Sciences/Humanities/Commerce with minimum 55%
marks; and
(ii) M.Ed. with minimum 55% marks; and
(iii) Ph.D. in Education or in any pedagogic subject offered in the institution; and
(iv) Eight years of teaching experience in a secondary Teacher Education Institution.
Desirable: Diploma/degree in Educational Administration or Educational Leadership.
B. Perspectives in Education or Foundation Courses
(i) Postgraduate decree in Social Sciences with minimum 55% marks; and
(ii) M.Ed. degree from a recognized university with minimum 55% marks.
OR
(i) Postgraduate (MA) degree in Education with minimum 55% marks; and
(ii) B.Ed./B.El.Ed. degree with 55% marks.
4 WP.5176.2016
C. Curriculum and Pedagogic Courses
(i) Postgraduate degree in
Sciences/Mathematics/Social Sciences/Languages with
minimum 55% marks, and
(ii) M.Ed. degree with minimum 55% marks. Desirable PhD degree in Education with subject specializations.
[Note: In case of B and C put together, for two faculty positions, a postgraduate degree in Sociology/Psychology/Philosophy with 55% marks, and B.Ed./B.El.Ed. with 55% marks and three years of teaching experience in a secondary school shall be considered].
D. Specialised Courses Physical Education
(i) Master of Physical Education (M.P.Ed.) with minimum 55% marks. (Training/qualification in yoga education shall be desirable).
Visual Arts
(i) Post graduate degree in Fine Arts (MFA) with minimum 55% marks.
Performing Arts
(i) Post graduate degree in Music/Dance/Theatre Arts with minimum 55% marks.
5.3 Administrative and Professional Staff
(a) Librarian (B.Lib. with 55% marks) One
(b) Lab Assistant (BCA with 55% marks) One
(c) Office-cum-Account Assistant One
(d) Office Assistant-cum-Computer Operator One
(e) Store-keeper One
(f) Technical Assistant One
(g) Lab Attendants/Helpers/Support Staff Two Qualifications As prescribed by State Government/UT Administration concerned.
Note: In a composite institution, the Principal and academic, administrative and technical staff can be shared. There shall be one Principal, and others may be termed as HoDs. 5.4 Terms and Conditions of Service The terms and conditions of service of teaching and non-teaching 5 WP.5176.2016 staff including selection procedure, pay scales, age of superannuation and other benefits shall be as per the policy of the State Government/Affiliating body."
(4) That NCTE in furtherance to a direction by the High Court of Madhya Pradesh at Jabalpur in a Public Interest Litigation filed by one Shri Pawan Dubey caused an inspection of all B.Ed. institutions in the State of Madhya Pradesh under Section 13 of the NCTE Act, 1993. The petitioner was called upon to file affidavit regarding acceptance and compliance of NCTE Regulation, 2014. That deficiency letter was issued to the institution on 06.05.2015 on the basis of the inspection conducted on 03/09/2014, the reply was filed on 10/06/2015.
(5) The NCTE Western Regional Committee in its 235 th meeting held on November, 23-24, 2015 observed that the petitioner institution does not have required number of qualified teaching staff.
(6) The institution was, therefore, called upon to send the list of staff duly approved by the Competent Authority vide Show Cause Notice dated 24.12.2015. The reply was received by the NCTE, Western Regional Committee, on 11/01/2016 (7) The NCTE Western Regional Committee in its 240 th meeting convened on January, 20-22, 2016 considered and held by order dated 10/02/2016:
".....Show Cause Notice under Section 17, dt 24/12/2015 was issued to the institution. The issue was that the institution did not have qualified teaching staff. Now The Principal of the Institution has sent a list. However, it is not clear from the Xerox copies of the recommendations of a selection committee whether these selections are approved by the affiliating body i.e. Gwalior University. The consolidated staff list does not show that it is approved by the competent authority-affiliating body. Also, since the selections have taken place in November, 2015, they should
6 WP.5176.2016 have been in accordance with the NCTE Regulations, 2014, which had already been notified in December 2014. Further, this also proves that the institution was conducting the B.Ed. course without following the norms as was seen by the Visiting Team of the NCTE. Hqrs.
Since, the institution has not conducted the B.Ed. course in accordance with either the NCTE Regulations, 2009 or NCTE Regulations, 2014, Recognition is withdrawn under Section 17 of the NCTE Act, 1993, from the end of the academic session next to the date of issue of withdrawal order.
Hence, in exercise of the powers conferred U/S 17 of the NCTE Act, 1993, the recognition of the institution is hereby withdrawn from the end of the academic session next following the date of order of withdrawal.
(8) An appeal against the order dated 10.02.2016 was dismissed on 04/07/2016 observing the following:
"AND WHEREAS Appeal Committee noted that Show Cause Notice (S.C.N) dated 24.12.2015 was issued to appellant institution on the ground that 'the institution does not have required number of qualified teaching staff..' Further the appellant institution was given a chance to send the list of staff duly approved by the competent authority. Appellant institution in its reply dated 31.12.2015 (received in the office of W.R.C. on 11.01.2016) submitted list of faculty which was not approved by the affiliating body and was signed by the Principal. Appellant institution with its reply dated 31.12.2015 also submitted copies of the Selection Committee recommendation made in the meeting held on 15.11.2015 to select Principal and faculty. During the course of appeal presentation on 31.05.2016, appellant submitted list of faculty countersigned by Registrar Jiwaji University, Gwalior.
AND WHEREAS Appeal Committee noted that appellant institution did not submit list of faculty approved by affiliating body to the W.R.C. and what it submitted was a list signed by Principal. The minutes of the selection Committee which the appellant institution submitted alongwith its reply to S.C.N. cannot be treated as list approved by affiliating body. Withdrawal order dated 10.02.2016 is therefore justified and confirmed.
AND WHEREAS after perusal of the Memoranda of Appeal, affidavit, documents on record and oral arguments advanced during the hearing, Appeal Committee concluded
7 WP.5176.2016 to confirm the refusal order dated 10.02.2016 issued by W.R.C., Bhopal."
(9) It is contended on behalf of the petitioner that it submitted the staff list which was signed by the registrar of the university during pendency of the appeal which is also continuation of the proceeding and that the list which was approved by the registrar is the same staff list which was submitted by the institution before the NCTE, Western Regional Committee by filing the reply to show cause notice. It is contended that the staff members appointed by the petitioner were working in the institution were the same, therefore the withdrawal of recognition by the respondent on the ground that there was no approval of the competent authority is perverse and without any basis. To substantiate these contentions the petitioner has relied upon the recommendation of Selection Committee constituted under Statute No. 28 of the Jiwaji University and the appointment orders brought on record, marked as Annexure P/6 (Colly.).
(10) Statute 28 reliance whereof has been placed is a College Code framed by the Jiwaji University in exercise of its powers under Section 6 of The Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973.
(11) That College Code 1(a) defines College which includes the "non-grantee college" such as the petitioner. Furthermore, College Code 1(c) defines Governing Body to mean "the Governing body constituted in accordance with the provisions of this Statute".
(12) That Part III of the Statute No.28 deals with the 8 WP.5176.2016 Constitution of Governing Body. It stipulates:
Part III - Governing Body:
"6. (1) There shall be a Government Body for the management of the college. It shall consist of:-
(a) The Chairman of the Governing Body appointed by the Foundation Society from amongst its members or by the individual maintaining the college.
(b) Two persons appointed by the Foundation Society from amongst its members or by the individual maintaining the college.
(c) Two representatives of the University other than members of the Foundation Society of the college nominated by the Executive Council at least one of whom shall be from amongst the teachers of the University as far as possible working in institutions not located in the same town as the college.
(d) one representative of the donors of the college to be elected by the donors
(e) one nominee of M.P. Uchcha Shiksha Anudan Ayog from amongst the senior teachers not below the rank of college Professors working within the jurisdiction of the University (excluding the concerned College).
(f) Two representatives elected by the teachers of the college who have completed two years of service other than the Principal from amongst themselves in such manner as may be prescribed by the College Council.
Provided that the restriction regarding two years of service shall not apply for the first three years of the existence of a college.
(g) The Principal of the College- Ex-Officio Member Secretary.
Provided that the following shall not be eligible to be a member of the Governing Body under Clauses (a) to (e) above.
(i) a person who is related to any member of the staff of the college.
(ii) a person having pecuniary interest in the affairs of the college and
(iii) an employee of the college.
9 WP.5176.2016 (2) (i) The Chairman and member of the Governing Body other than Ex-Officio member shall hold office for a period of two years.
Provided that the Chairman and members appointed by the Foundation Society before the supercession of its Governing Body of the Society and their places shall be filled by the appointees of the person/persons appointed by the State Government to manage the affairs of the society.
(ii) The Ex-Officio member shall forthwith cease to be a member of the Governing Body if he ceases to hold the office by virtue of which he has become a member.
(iii) An office bearer or member of the Governing Body may resign from the Governing body through a letter of resignation addressed to the Secretary of the Governing Body and the resignation shall take effect as soon as the letter is received by the Secretary. The Secretary of Governing Body shall take steps to fill all vacancies as they occur.
(iv) When a vacancy occurs in the office of a member other than an Ex-officio member, before the expiry of his term, the vacancy shall be filled, as soon as may be, by the election, nomination or appointment as the case may be of a member who shall hold office so long as the member in whose place he has been elected, nominated or appointed, would have held it if the vacancy had not occurred.
(v) Every change in the office-bearers or membership of the Governing Body of a college shall be reported immediately to the University by the Secretary.
(13) That Part VI of the Statute No.28 makes a provision regarding "Teachers of the College". It stipulates:
"16. (1) No appointment to any teaching post in the college, including the post of the Principal but excluding part-time appointments, temporary appointments which are not to continue for more than six months and appointments to posts which are to be filled by promotion, shall be made except :
(a) After duly and widely advertising the post together with the minimum qualifications thereof and the emoluments of the post and allowing reasonable time within which the applicants may in response to the advertisement, submit their
10 WP.5176.2016 applications.
(b) On the recommendation of the Selection Committee constituted in accordance with the provisions of paragraph 17 below for the "Non- grantee Colleges" and the Rules framed under M.P. Ashasakiya Shikshan Sanstha (Adhyapakon tatha Karmachariyon ke vetano ka Sandya) Adhiniyam, 1978 for "Grantee Colleges".
(2) No appointment to the post of Principal shall be made except with the prior approval of the Executive Council. (3) No person shall be appointed to any teaching post including that of the Principal unless he possesses the minimum qualifications prescribed for the post by the University Grants Commission and approved by the State Government and/or M.P. Uchcha Shiksha Anudan Ayog from time to time.
(4) Every change in the teaching staff of the college shall be immediately reported to the University by the Principal.
17. (1) The Selection Committee for the teachers, principals and non-teaching employees for "Grantee Colleges" shall be as provided in the Rules framed under M.P. Ashashkiya Shikshan Sanstha (Adhyapakon Tatha anya Karmachariyon Ke Vetano Ka Sanadaya) Adhiniyam, 1978. (2) Selection Committee for teachers, principals and non- teaching employees for "non-grantee colleges"shall be:
(a) For teachers:
(i) Kulpati or his nominee not below the rank of University Professor Chairman
(ii) Chairman of the Governing Body or his nominee from amongst its members who are not teachers of the college.-Member
(iii) Two experts of the subject concerned nominated by the Kulpati. -Members
(iv) Principal of the College. - Member
(b) For Principals :
(i) Kulpati or his nominee not below the rank of University Professor Chairman 11 WP.5176.2016
(ii) Chairman of the Governing Body or his nominee from amongst its members who are not teachers of the college.-Member
(iii) One educationist nominated by the Executive Council/-Member
(iv) Coordinator/Dean/Director College Development Council or in his absence one of the Deans of Faculties in which instructions are imparted in the College nominated by Kulpati.-
Member
(v) Principal of the College. - Member Secretary
(c) For Non-teaching posts :
(i) Nominee of Kulpati- Chairman
(ii) Chairman, Governing Body or his nominee, from amongst its members who are not teachers:-Member
(iii) Registrar or his nominee not below the rank of Deputy Registrar.- Member
(iv) Principal of the College - Member Secretary In no case the committee constituted under 17(2)(a) shall transact business at a meeting unless Chairman, atleast one subject expert and two other members are present. In case of the Committee constituted under 17(2)(b) and 17(2)
(c) no business shall be transacted at a meeting of the Committee unless the Chairman and three members are present.
(3) The Committee shall, having regard to the nature of duties of post, select candidates as per rules and shall prepare a panel of such candidates in order of merit. (4) The Panel and the recommended order of merit should have the full concurrence of atleast one expert. (5) The Panel prepared under sub-section (3) shall contain the names of the candidates having atleast two names more than the number of posts proposed to be filled up. (6) The Panel drawn under sub-section (3) shall be submitted to the Governing Body.
(7) The Governing Body shall make the appointment to the posts of teachers or other employees in order of merit from 12 WP.5176.2016 the panel prepared under subsection (3).
18. (1) No person shall be appointed to a full time and salaried teaching post in the College except on the recommendation of the Committee of Selection constituted in accordance with the provisions of this Statue.
Provided that if the appointment to a teaching post is not expected to continue for more than six months and can not be delayed without detriment to the interests of the institution, the Governing Body may make such appointment without obtaining the recommendation of the Committee of Selection but the person so appointed shall not be retained on the same post for a period exceeding six months or appointed to another post in the service of the college except on the recommendation of the committee of selection.
(2) Appointments to part-time teaching posts may be made by the Foundation Society or the Governing Body as the case may be on the recommendation of the Principal from amongst persons who possess the minimum qualifications prescribed for a lecturer.
Provided that where a part-time Principal of a Law College is to be appointed, the appointee shall possess the minimum qualifications prescribed for a Principal and his appointment shall be made with the prior approval of the Executive Council."
(14) Evidently, College Code 17(7) empowers the Governing Body to make all appointments to the posts of teachers or other employees in order of merit from the panel prepared under sub-section (3). (15) No material has been commended at by the petitioner to establish that the appointments to the post of teacher have been made by the Governing Body. The orders which are placed on record marked as Annexure P/6 reveals that all the appointments are made by the 13 WP.5176.2016 Principal which are not in consonance with the stipulations contained under Statute No.28, Clause 17(7) of the College Code. In view whereof, these appointments cannot be treated as appointments by the Competent Authority which as per the Statute is the Governing Body.
(16) When the impugned orders are tested on the anvil of these facts, they cannot be faulted with. (17) Reliance on the decision in Shri Kanha Shiksha Prasar Prachar Samaj Kalyan Samiti Vs. Jiwaji University Gwalior, W.P.No.7232/2012 decided on 21/02/2013 is of no assistance since it turns on the Regulations of 2009 and was dwelling upon the issue as to whether the recommendation by the Committee constituted under Clause 17 of the Statute No.28 further requires an approval of the Executive Council of the University, ruling in the negative, it was held that:
"........the Statute No.28 College Code prescribes procedure for appointment of teaching staff in an affiliated 'Non-grantee College' and the petitioner - Institution has appointed the teaching staff in accordance with the aforesaid Statute. In such circumstances, the direction issued by the University to the petitioner- Institution that it should get approval of the staff from the Executive Council of the University is contrary to law."
(18) In the case at hand, the fact situation is different. It was incumbent upon the petitioner-institution to have established that the teachers appointed in its institution vide Annexure P/6 (Colly.) were appointed by the Governing Body as is contemplated under College Code 17(7) of the Statute No.28. The petitioner, having failed to establish the staffing pattern, is not benefited from the decision rendered in Shri Kanha Shiksha Prasar Prachar Samaj Kalyan Samiti (supra). (19) Having, thus, considered, we do not find any 14 WP.5176.2016 illegality in the decision taken by the NCTE, Western Regional Committee and its affirmation in the appeal of withdrawing the recognition for B.Ed. (Co.Ed.) course. (20) Consequently, petition fails and is dismissed. No costs.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
(13/03/2018) (13/03/2018)
pd
Digitally signed by
PAWAN DHARKAR
Date: 2018.03.19
12:16:11 -07'00'