Allahabad High Court
State Of U.P. & Others vs Mahesh Kumar & Another on 31 May, 2018
Bench: Sudhir Agarwal, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 24.01.2018 Delivered on 31.05.2018 In Chamber Case :- SPECIAL APPEAL No. - 37 of 2013 Appellant :- State Of U.P. & Others Respondent :- Mahesh Kumar & Another Counsel for Appellant :- M.C. Chaturvedi, C.S.C. Counsel for Respondent :- D.S. Parmar,D.P.Singh Hon'ble Sudhir Agarwal,J.
Hon'ble Shashi Kant,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. Sri Manoj Srivastava, Brief Holder for State-appellant is present. None appeared on behalf of respondents though the case has been called in revised. Hence, we proceed to hear and decide this appeal after hearing learned Brief Holder appearing for appellant.
2. This intra-Court appeal under Chapter-VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgment and order dated 25.07.2007 passed by learned Single Judge in Writ Petition No.47823 of 2004 (Mahesh Kumar Vs. State of U.P. & Ors.) whereby learned Single Judge has allowed writ petition, quashed order dated 04.01.2005 passed by Director, State Council of Educational Research and Training, Lucknow (hereinafter referred to "Director, SCERT") whereby it had rejected candidature of petitioner-respondent. Learned Single Judge has held that petitioner is holder of valid degree of B.Ed. and entitled to be considered for admission to Special Basic Training Course, 2004 (hereinafter referred to as "BTC 2004") treating him to be qualified.
3. The facts, admitted and as borne out from record, are, that Sanatan Dharm Girls Degree College, Orai (hereinafter referred to as "College") is affiliated to Bundelkhand University (hereinafter referred to as "University"), Jhansi. Petitioner obtained Bachelor's Degree in Arts (a three years' course) passing Examination of 1996 in Second Division. Thereafter he was admitted in the course of Bachelor of Education (B.Ed.) in the aforesaid college and passed out the same in the examination of 1997, in first division.
4. University vide letter dated 05/06.02.2002 had informed that it had conducted B.Ed. Special Scheme since 1994 to 1997 and held examination in 2000. Since number of students were very large, educational institutions were arranged at different centers including Sanatan Dharm Balika Degree College Orai, Kalpi College Kalpi, Vipin Bihari Degree College Jhansi, Vishwavidyalaya Shaikshnik Vibhag, Sri Guru Harikishan Degree College Jhansi, and Dr. R.P.Richariya Degree College Baruasagar (Jhansi). After conducting examination in 2000, successful candidates were awarded degrees.
5. Director, SCERT published an advertisement No.UPID7998 dated 21.02.2004 inviting applications for admission in Special B.T.C. Course 2004 from those who possess B.P.Ed./D.P.Ed./ C.P.Ed. qualifications from approved Universities/recognized colleges which are recognized by National Council for Teachers Education (hereinafter referred to as "NCTE"). Petitioner applied, pursuant to the aforesaid advertisement, and was selected for admission in the aforesaid course in the category of Other Backward Class (OBC). Subsequently, petitioner came to know that he is not being admitted in Special B.T.C. Course 2004 since B.Ed. Degree obtained by him from aforesaid University in the year 1997 was not recognized by NCTE hence he filed Writ Petition no.47823 of 2004.
6. In para 12 of writ petition, petitioner specifically pleaded that B.Ed. Course of Bundelkhand University is recognized by NCTE. It reads as under :
"That, it is relevant to mention here that the B.Ed. Course of Bundelkhand University is recognized by N.C.T.C. New Delhi and the petitioner is entitled to complete the Special B.T.C. training course." (emphasis added)
7. In the aforesaid writ petition, following relief has been sought by the petitioner :
"i. issue a writ, order or direction in the nature of mandamus commanding the respondents not to reject the petitioner's application for special B.T.C. training Court.
ii. issue a writ, order or direction in the nature of mandamus commanding the respondents to complete the Special B.T.C. training course to the petitioner which scheduled to be held very soon.
iii. Issue a writ, order or direction in the nature of mandamus commanding the respondents to provide appointment on the post of Assistant Teacher to the petitioner.
iv. issue any suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
v. Award cost of the petition to the petitioner."
8. Thereafter, an order was passed by Director, SCERT on 10.01.2005 observing that Sanatan Dharm Balika Vidhyalaya, Orai, U.P. was not in the list of recognized training institutions published by NCTE and therefore petitioner's B.Ed. Degree cannot held valid for admission in Special BTC Course 2004. By way of an amendment application filed in 2007, petitioner has challenged the aforesaid order also.
9. It is this writ petition which has been allowed vide judgment assailed in this appeal.
10. Learned Single Judge has relied on another Single Judge judgment in Civil Misc. Writ Petition No.39963 of 2004 (Indu Dwivedi Vs. State of U.P.) connected with three other writ petitions and decided vide judgment dated 14.05.2007. Therein Court has followed Division Bench judgment in Ekta Shukla & Ors. Vs. State of U.P. & Ors. 2006(1) ESC 531.
11. The judgment has been challenged by appellants on the ground that there was a specific condition in the advertisement that candidate must have obtain B.Ed. Degree from an institution recognized by NCTE and completed their training course as regular students. This was not the controversy involved before Division Bench in Ekta Shukla (supra). Therein orders of NCTE commanding colleges concerned not to admit students for academic years 1997-98 and 1998-99 for B.Ed courses were under consideration, Court held that NCTE has no jurisdiction to stop students and withhold recognition of College. Para 20 of judgment reads as under :
"In the face of this language of the Section, the Council had no authority or jurisdiction to pass a contrary order stopping the students and withholding recognition, as it were from year to year. The only jurisdiction that they possess is to withhold recognition from this College or that College, but no from this College for this year or from that College for that year. The stop students orders being invalid, placement of any weight on those by Hon'ble the Single Judge was, with respect, erroneous."
(emphasis added)
12. Court held that application for recognition made before August, 1997 by University on behalf of affiliated Colleges was substantially valid and should have been held so.
13. Learned Standing Counsel placed reliance on a subsequent judgment of this Court in Alka Tripathi Vs. State of U.P. & Ors. 2007 (6) ADJ 680, a Division Bench judgment in Special appeal No.(910) of 2007 (Ashwani Kumar Tiwari & 3 Ors. Vs. State of U.P. & Ors.) decided on 02.11.2007 and Special Appeal No.392 of 2008 (Sanjai Kumar & Ors. Vs. State of U.P. & Ors.) decided on 13.03.2008.
14. Question before we is, "whether B.Ed. examination of 1997 passed by petitioner can be held invalid if Institution and University are not approved by NCTE.
15. We find it sufficient to refer, in brief, certain aspects which have arisen with enactment of National Council for Teachers' Education Act, 1993 (hereinafter referred to as "Act, 1993"), which was published in Gazette of India on 30.12.1993 and came into force on 01.07.1995. NCTE was established on 17.08.1995. Regional Committee was established under Section 20(1) of the Act, 1993 on 03.11.1995 and notification was published in official Gazette on 06.01.1996. Regulations under Section 32(1) were framed by NCTE on 19.12.1995. All existing Institutions running teacher education courses were liable to seek recognition from NCTE for the session 1996-97 and onward.
16. Act, 1993 provides that all Institutions imparting education in teachers' training shall apply for recognition to NCTE by appointed date which was notified as 17.08.1995. 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.
17. "Teacher education" and "Teacher education qualification" are defined under Section 2(l) and 2(m) of Act, 1993, which read as under :
"(l) "teacher education" means programmers 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." (emphasis added)
18. "University" is defied under Section 2(n) of Act, 1993, which read as under :
"(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."
19. Section 14 of Act, 1993 requires every institution offering or intending to offer a course or training in teacher education on or after the appointed day, to make an application to Regional Committee concerned, in such form and in such manner as may be determined by Regulations for grant of recognition under Act, 1993.
20. It has not come on record whether University or College ever applied for grant of recognition to NCTE or Regional Committee in respect of B.Ed. Course, 1996-97 passed by petitioner in 1997.
21. The learned Single Judge has followed earlier judgment but we find no examination of facts, whether the same were similar or not. When a judgment is followed, Court must take utmost care to find out whether factual situation, as was available in a judgment, fits in the factual situation in the case in hand and also the relevant statutes. Giving a caution to this effect, in Bharat Petroleum Corporation Ltd. & Anr. Vs. N.R. Vairamani & Anr., (2004) 8 SCC 579, Court observed;
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
22. In Ekta Shukla's case (supra), Institution concerned had applied for recognition and when matter was pending before NCTE, continued their teacher's training education course. In the absence of any facts in this regard in the present case, whether College or University, ever applied for recognition, in our view, the aforesaid judgment, in a mechanical manner, cannot be applied. It also cannot be said that judgment in Sanjay Kumar (supra) would govern the issue raised in this appeal for the reason that here also it is not the case where application was rejected by NCTE and still College or University continued to run the Course.
23. Learned Standing Counsel's submissions that advertisement does not recognize any teachers' educational course unless it is approved by NCTE, by itself, cannot disqualify a candidate for admission in Special B.T.C. Course 2004 for the reason that degrees earned by candidates before prohibition under Act, 1995 is made applicable, cannot be made ineligible for admission in Special B.T.C. Course as such a condition would render their exclusion arbitrary and discriminatory in view of Supreme Court judgment in State of U.P. & Ors. Vs. Bhupendra Nath Tripathi (2010) 13 SCC 203.
24. In view of the above, unless these relevant facts are brought on record and petitioner is able to show that B.Ed Course of 1996-97 which was continued by University and College after appointed date, had continued in the manner permitted under Act 1993, it cannot confer any validity to the said degree. Hence, judgment in question cannot be upheld since in the present case relevant necessary facts are not brought on record and have not been examined by learned Single Judge.
25. The appeal is accordingly allowed. Judgment under appeal, dated 25.07.2007, is hereby set aside. The matter is remanded. Petitioner-respondent no.1 is permitted to bring on record necessary facts in the light of observations made hereinabove by way of amendment of writ petition and thereafter learned Single Judge is requested to decide the matter in accordance with law, and, in the light of various judgments referred to hereinabove.
26. There shall be no order as to costs.
Order Date :- 31.5.2018 KA