Research › Search › Judgment

Gujarat High Court · body

2004 DIGILAW 491 (GUJ)

CHAUHAN ISHWARBHAI DUDHABHAI v. STATE OF GUJARAT

2004-07-30

B.J.SHETHNA, M.C.PATEL

body2004
M. C. PATEL, J. ( 1 ) THE appellants filed Special Civil Application No. 1993 of 2004 on 11th February, 2004 praying for a writ of mandamus or any other appropriate writ, order or direction directing the respondents to declare the results of the appellants and to issue mark-sheets to them for the C. P. Ed. 1st year examination held by the respondent No. 2-Board in April, 1999 and to direct the respondents to permit the appellants to complete their 2nd year C. P. Ed. examination. The petition was dismissed by Mr. K. M. Mehta, J. by his judgment and order dated 5th April, 2004. The appellants, have therefore, filed this appeal under Clause 15 of the Letters Patent challenging the said judgment and order, ( 2 ) THE appellants and other students came to be admitted by Sharirik Shikshan mahavidyalaya run by Shri Jagdeep Education Trust - the respondent No. 3 institution for the C. P. Ed. and D. P. Ed. courses for the academic year 1998- 1999. There was no registration or permission granted by the competent authority under the National Council for Teachers Education (n. C. T. E. for short ). The c. P. Ed. course is a certificate course and is of two years duration, while d. P. Ed. is a diploma course and it is of one year duration. The three appellants were admitted to C. P. Ed. course. The last date for filing application under regulation 7 (B) for commencement of the course for academic year 1998-1999 was 31st December, 1997, The respondent No. 3 applied to the State Government to get N. O. C. on 6th July, 1998. On 12th August, 1998, the State Government granted N. O. C. The respondent No, 3 obtained the application for seeking recognition on 28th August, 1998. The respondent No. 3 gave an advertisement tor the purpose of giving admissions in August, 1998 and the admissions were given to students in C. P. Ed. and D. P. Ed. courses on 13th September, 1998. Till then, the respondent No. 3 had not obtained recognition from N. C. T. E, the respondent No. 3 submitted the application for recognition to N. C. T. E on 3rd November, 1998. On 5th January, 1999, the respondent No. 3 was informed by the State Government that N. C. T. E. recognition was required. courses on 13th September, 1998. Till then, the respondent No. 3 had not obtained recognition from N. C. T. E, the respondent No. 3 submitted the application for recognition to N. C. T. E on 3rd November, 1998. On 5th January, 1999, the respondent No. 3 was informed by the State Government that N. C. T. E. recognition was required. On 6th April, 1999, D. E. O. informed the respondent No. 3 that the examination of students admitted by them will not be conducted by the State Examination Board. On 9th April, 1999, the respondent No. 3 filed Special Civil Application No. 2571 of 1999 praying that the students of their school be permitted to appear in the examination. N. C. T. E. was not joined as party. On 12th April, 1999, this court (Coram : Mr. D. C. Srivastava, J.) passed the following order :"issue Notice returnable on 16-6-1999. Till then the communication contained in Annexure a in the matter of restraint order shall remain under suspension. The Examination may go on, but the results will not be declared and shall be subject to further orders of this Court and shall also be subject to the order of approval likely to be granted or refused by N. C. T. E. , Bhopal. D. S. permitted. " ( 3 ) THE students appeared in the examination, pursuant to the said order, on 22nd April, 1999. ( 4 ) N. C. T. E. , by its letter dated 28th September, 2000, granted recognition for the C. P. Ed. course of two years duration for the Academic Session 2000 2001 with an annual intake of 40 students subject to fulfilling certain conditions which included the condition of admitting only those candidates who were eligible as per the regulations governing the course in such manner as may be laid down by the State Government. Thus, recognition was not granted with retrospective effect and the institution remained unrecognised for the academic year 1998-1999. After the respondent No. 3 received intimation of the recognition granted by N. C. T. E. , they withdrew Special Civil Application No. 2571 of 1999 which was disposed of by Mr. P. K. Sarkar, J. , by order dated 16th October, 2000 as follows :"i have heard learned Counsel appearing on behalf of the petitioner. After the respondent No. 3 received intimation of the recognition granted by N. C. T. E. , they withdrew Special Civil Application No. 2571 of 1999 which was disposed of by Mr. P. K. Sarkar, J. , by order dated 16th October, 2000 as follows :"i have heard learned Counsel appearing on behalf of the petitioner. The present petition has been filed for recognition of the school by National Council for Teacher Education. Learned Counsel submitted that the National Council for Teacher Education, by its letter dated September 28, 2000 recognised the college of Physical Education, Piplaj, District : Gandhinagar, which is run by the petitioner-Trust. In view of the aforesaid position, learned Counsel submitted that the petitioner will not proceed further in the petition and wants to withdraw the same. The permission is granted. The petition is disposed of as withdrawn. The letter issued by the National Council for Teacher Education (dated September 28, 2000) be kept on record. Direct Service is permitted. " ( 5 ) THE Special Civil Application, was therefore, withdrawn by the respondent no. 3 without obtaining any orders for declaration of results of the students who were permitted to appear in the examination held in April, 1999, pursuant to the interim order dated 12th April, 1999. The said interim order came to an end with the disposal of the main petition. ( 6 ) HENCE, a number of students who had appeared in the examination, pursuant to the said interim order, filed Special Civil Application Nos. 11379 and 12441 of 2000 praying for a writ of mandamus directing the State Education board to declare their results. The said petitions came up for hearing before mr. D. H. Waghela, J. The learned Judge, after hearing the parties at length including the Advocate for N. C. T. E. , dismissed the said petitions by his judgment and order dated 7th February, 2001 relying inter alia on the following observations of the Division Bench (Coram : Mr. D. M. Dharmadhikari, C. J. , (as he then was) and Mr. C. K. Thakker, J. (as he then was)) in Letters patent Appeal No. 1451 of 1999 :"it is true that ultimately students who had studied in the petitioners institution had to suffer, but there is no way out. D. M. Dharmadhikari, C. J. , (as he then was) and Mr. C. K. Thakker, J. (as he then was)) in Letters patent Appeal No. 1451 of 1999 :"it is true that ultimately students who had studied in the petitioners institution had to suffer, but there is no way out. In several cases, the Supreme court has observed that students who had not prosecuted study in a recognised school, should not be permitted to appear at the examination and in exercise of extraordinary powers under Art. 226 of the Constitution, a High Court should not direct the Board to take their examination or to declare results of such students. It would amount to misplaced sympathy and such sympathy should not be shown in favour of such students. " ( 7 ) HOWEVER, some of the D. P. Ed, students who had filed the said petitions again filed Special Civil Application No. 4934 of 2001 praying that their results be ordered to be declared. N. C. T. E. , was not impleaded as a party. The petition came up for hearing before Mr. Pradip Kumar Sarkar, J. It was submitted before the learned Judge on behalf of the Board that the petitioners had appeared in the examination in the year 1999 to C. P. Ed. and D. P. Ed. course without any approval or recognition by the N. C. T. E. , and hence, the State Examination board was not in a position to issue diploma to the successful candidates. Unfortunately, it was not brought to the notice of the learned Judge that the petitioners had filed a Special Civil Application along with other students, but the same had been dismissed by Mr. D. H. Waghela, J. Mr. Pradip Kumar sarkar, J. , disposed of the petition with the following directions :"it is true that unless the N. C. T. E. approves or affiliates the College or institution, it is not permissible to issue any certificate by University or State to grant any Degree or Diploma, but in any event, the private institute can run its own institution and conduct examination and if necessary issue certificates to the successful candidates. Since, the petitioners are awaiting for the results since 1999, I am of the view that even though the N. C. T. E. had not given approval to the institute for the academic year 1998-1999, the result of the petitioners should be declared. Accordingly, the respondents are directed to declare the results of the petitioners within two weeks from today. With the aforesaid direction, the petition is disposed of. Notice is discharged. No order as to costs. Direct Service is permitted. " ( 8 ) THEN, followed a series of petitions namely Special Civil Application no. 7068 of 2001, Special Civil Application No. 6803 of 2001, Special Civil application No. 10875 of 2001, Special Civil Application No. 12541 of 2002 and Special Civil Application No. 9805 of 2003, all by students of D. P. Ed. course who had appeared in the examination in April, 1999, pursuant to the interim direction in Special Civil Application No. 2571 of 1999. The petitions came up for hearing before different learned single Judges, who following the order passed by Mr. P. K. Sarkar, J. in Special Civil Application No. 4934 of 2001, directed the results of the petitioners to be declared. ( 9 ) THE appellants who were students of C. P. Ed. course which is of two years duration and who had appeared in the 1st year examination held by the board in April, 1999, pursuant to the interim order dated 12th April, 1999 passed in Special Civil Application No. 2571 of 1999, filed the present Special Civil application No. 1993 of 2004 praying for a direction to the respondent-Board to declare their results without impleading N. C. T. E. , as a party. The petition came up for final hearing before Mr. K. M. Mehta, J. This time, the prayer in the present petition was resisted on behalf of the Board. Various judgments of this Court and the Apex Court were cited on behalf of the respondent-Board in support of its contention that no relief can be granted to the students of an unrecognised institution. In particular, reliance was placed in the judgment of mr. D. H. Waghela, J. in Special Civil Application No. 2571 of 1999 denying relief to the students of the same institution and who had appeared in the same examination pursuant to the interim order passed by this Court. In particular, reliance was placed in the judgment of mr. D. H. Waghela, J. in Special Civil Application No. 2571 of 1999 denying relief to the students of the same institution and who had appeared in the same examination pursuant to the interim order passed by this Court. On behalf of the petitioners, reliance was placed on the subsequent orders of Mr. P. K. Sarkar, j. and other learned single Judges, granting relief to students of D. P. Ed. course. ( 10 ) THE learned single Judge, after considering the judgments of this Court and the Supreme Court cited on behalf of the respondent-Board, held that the petitioners cannot be granted any relief as any relief granted, as prayed for, would be contrary to the provisions of the rules and regulations of N. C. T. E. He observed that it was true that the other learned single Judges had granted relief to other petitioners, but unfortunately, those orders were rendered without any adjudication and without considering the Apex Court decisions and the order of Mr. M. S. Shah, J. , and the judgment of the Division Bench of this Court and the judgment of Mr. D. H. Waghela, J. After noting that the judgment of the Supreme Court as well as the judgment of the Division Bench were binding on him, the learned Judge held that he was constrained to hold that the relief as prayed for, could not be granted. He, therefore, dismissed the petition. The petitioners, have therefore, filed this Letters Patent Appeal challenging the said judgment and order dismissing their petition. Notice was issued on 21st June, 2004, and in response, affidavit-in-reply has been filed on behalf of the respondent-Board. ( 11 ) MR. Y. N. Oza, the learned Senior Advocate appearing for the appellants contended that the orders of the learned single Judges in six petitions granting relief to the petitioners in those cases had not been challenged and had become final and that the learned single Judge was not justified in not following the orders of other learned single Judges granting relief to students of D. P. Ed. course. He submitted that if the learned single Judge did not agree with the said orders, in view of the previous judgment of Mr. course. He submitted that if the learned single Judge did not agree with the said orders, in view of the previous judgment of Mr. D. H. Waghela, J. denying relief to other students, he should have referred the matter to the Division Beach instead of dismissing the petition. He further submitted that in spite of the fact that previously two petitions were dismissed by Mr. D. H. Waghela, J. , some of the students who were petitioners in the earlier petitions again filed petitions and when the Court has granted relief to them, there is no reason for not granting relief to the appellants who are students of C. P. Ed. course. He argued that the learned single Judge has erred in interpreting the judgment of Mr. M. S. Shah, J. , in Special Civil Application No. 4881 of 1999. In the alternative, he submitted that, in any case, the appellants may be treated as regular students for the next year, as was directed by the Division Bench by its order dated 14th December, 1998 in Special Civil Application No. 10240 of 1998 which was a matter pertaining to another institute which had admitted students in the year 1997-1998 before recognition was granted by N. C. T. E. , for the year 1998- 1999. Mr. Oza, cited the following decisions in support of his submissions : (1) Asheesh Pratap Singh and Ors. v. Union of India and Ors. , 2002 (4) scc 216 . (2) Somabhai Mathurbhai Patel v. New Shorrock Mills, 1983 GLH 273 . (3) Kamla Shankar v. Director of Board of Technical Education, Kanpur and Anr. , 1995 Supp. (2) SCC 302. (4) Delhi Administration (Now, N. C. T. of Delhi) v. Manohar Lal, 2002 (7) SCC 222 . ( 12 ) ON behalf of the respondents, Mr. P. R. Abichandani, learned A. G. P. , drew our attention to the affidavit-in-reply filed in this appeal. He submitted that all the students who had earlier preferred six petitions and who were granted relief had undertaken the course of D. P. Ed. , but they were not students of C. P. Ed. , that d. P. Ed. , is a one year diploma course while C. P. Ed. , is a two year certificate course. He submitted that the respondent No. 3 had discontinued the D. P. Ed, and c. P. Ed. , courses after the year 1999. , but they were not students of C. P. Ed. , that d. P. Ed. , is a one year diploma course while C. P. Ed. , is a two year certificate course. He submitted that the respondent No. 3 had discontinued the D. P. Ed, and c. P. Ed. , courses after the year 1999. He submitted that about 51 students of c. P. Ed, course had appeared in the examination pursuant to the interim order. Now, if the results of three appellants are declared, the results of all other students will have to be declared and they cannot be accommodated in the second year in other institutions even if results are declared because no institution can accommodate students more then the intake capacity fixed by the N. C. f. E. He vehemently contended that the case of the appellants was identical to that of the petitioners in Special Civil Application Nos. 11379 and 12441 of 2000 which had been dismissed by Mr. D. H. Waghela, J. He cited the decision of the Supreme court in State of Maharashtra v. Vikas Sahebrao Roundale, reported in AIR 1992 SC 1926 in which it was held that the students who had been admitted in an unauthorised D. P. Ed, college had no right to seek a writ of mandamus or direction from the Court to permit them to sit for the examination or to accommodate them in the recognised institutions to pursue further study. ( 13 ) NOW, the appellants mainly reply on the orders of the learned single judges in Special Civil Application Nos. 4934, 7068, 6803 and 10875 of 2001, j 12541 of 2002 and 9805 of 2003 in which the results of about 30 students of D. P. Ed, course were ordered to be declared. However, the said orders were made in ignorance of the judgment dated 7th February, 2001 of Mr. D. H. Waghela, J. in Special Civil Application Nos. 11379 and 12441 of 2000 denying relief to the students of the same institution. If the orders of the learned single judges, on which reliance is placed on behalf of the appellants have become final, then so has the judgment of Mr. D. H. Waghela, J. Though, it is stated in the affidavit-in-reply that the judgment of Mr. 11379 and 12441 of 2000 denying relief to the students of the same institution. If the orders of the learned single judges, on which reliance is placed on behalf of the appellants have become final, then so has the judgment of Mr. D. H. Waghela, J. Though, it is stated in the affidavit-in-reply that the judgment of Mr. D. H. Waghela, J. was not carried in appeal, it turned out at the time of argument that, in fact, the petitioners in the said case had preferred Letters Patent Appeal No. 80 of 2001, but it was dismissed by the Division Bench by its speaking order dated 15th February, 2001 observing as follows :"unauthorised or unrecognised educational institution admitting students for certain courses in such college or institution cannot be permitted to seek extraordinary relief as it would tantamount to perpetrating the illegality rather than protecting the provisions. It is, in this context, reference to a decision of the Constitution Bench in State of Maharashtra v. Vikas Sahebrao Roundale, air 1992 SC 1926 may be very relevant and expedient. It has been, elaborately and evidently, laid down that students of unauthorised colleges or educational institutions have no right to seek writ of mandamus or direction from the Court to permit them to appear for examination or to accommodate them in the recognised institutions in the pursuit of further studies. It is also held that the provisions of Art. 51a envisages some of the basic duties which the paying students need to be inculcated. " ( 14 ) IN view of the said order of the Division Bench in Letters Patent Appeal no. 80 of 2001 confirming the judgment of Mr. D. H. Waghela, J. , denying relief to students of C. P. Ed, and D. P. Ed, courses of the same institution, the orders of other learned single Judges granting relief to students of D. P. Ed. course, in ignorance of the said binding decision of the Division Bench, cannot form the basis for awarding any relief to the appellants in the present proceeding. Reliance is placed on behalf of the appellants on the order of the Division bench in Special Civil Application No. 10240 of 1998 directing the students in the said case to be treated as admitted for the next year and as regular students. Reliance is placed on behalf of the appellants on the order of the Division bench in Special Civil Application No. 10240 of 1998 directing the students in the said case to be treated as admitted for the next year and as regular students. However, an order made to merely dispose of the case before the court by issuing certain directions on facts or for purposes of the said case cannot have value or effect of any binding precedent and particularly, in view of the decision of the Division Bench in Letters Patent Appeal No. 80 of 2001 dismissing the petitions of the students of the present institution. The said decision is binding on us and we cannot give any directions contrary to the said decision. In view of the above discussion, we find no merit in this appeal and the same, is therefore, dismissed. Notice is discharged. Appeal dismissed. .