Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 1114 (JHR)

Lala Pritam B. Ed. College v. State of Jharkhand

2018-05-15

AMITAV K.GUPTA, D.N.PATEL

body2018
ORDER : D.N. PATEL, J. 1. These Letters Patent Appeals have been preferred by the original petitioners whose W.P.(C) No. 566 of 2016 and W.P.(C) No. 5304 of 2015 were dismissed by the learned Single Judge vide judgment and order dated 3rd May, 2016. 2. These appellants having imparted education Bachelor of Education (B.Ed) for the academic year 2014-15 without any affiliation of the respondent-University and the difficulty has been started which has resulted into the birth of the aforesaid two writ petitions and these two Letters Patent Appeals mainly for the reason that these appellants are not only imparting education for B.Ed degree, but, they are in “Business of Education”. Too much commercialisation of the education, by such educational institutions, has resulted into the present situation of running the courses, for the whole academic year without any affiliation and thereafter, examination is conducted, the result is published, but, the students cannot get any job especially in the government institutions. These appellants have assured Government by stating on affidavit that they shall not admit any student without any affiliation. In breach of this affidavit and in breach of the law viz. National Council for Teachers Education (Recognition, Norms & Procedure) Regulations, 2009 enacted under Section 32(2) of the Act, 1993 and it is also in violation of the condition of recognition given to these two appellants they admitted students in their courses. After the academic year is over the students are losing their year because there was no affiliation by the respondent-University for the academic year 2014-15. 3. These appellants have started their education activities for the B.Ed course from the year 2012-13. At that time B.Ed course was for one year. Thereafter for the year 2013-14 there was recognition by NCTE under Section 14(6) of the Act, 1993 and there was affiliation of respondent-University also. 4. It appears that as per the decision rendered by the Hon’ble Supreme Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya Vs State of Uttar Pradesh & others reported in (2013) 2 SCC 617 an application for affiliation ought to have been preferred on or before 10th March, 2014 for getting affiliation for the academic year 2014-15 which has not done in this case. In both these Letters Patent Appeals this is the fact. In both these Letters Patent Appeals this is the fact. Precisely in L.P.A. No. 241 of 2016 application was preferred on 06.02.2015 which is just at the fag end of the academic year 2014-15 which is not permissible in the eye of law especially as per the decision rendered by Hon’ble Supreme court in para no. 87.1 of the decision reported in (2013) 2 SCC 617 . 5. So far as L.P.A. No. 242 of 2016 is concerned, as per appellant the application was preferred on 17th March, 2014 for affiliation with the respondent-University whereas, an affidavit has been filed by the respondent-University in W.P.(C) No. 5304 of 2015 that no such application was ever received by the respondent-University for the affiliation. 6. Thus, the affiliation was not obtained by these appellants for the academic year 2014-15 for imparting B.Ed education and hence, two writ petitions were preferred by these two appellants one being W.P.(C) No. 5304 of 2015 and another is W.P.(C) No.566 of 2016 which were dismissed by the learned Single Judge vide judgment and order dated 3rd May, 2016 and hence, these Letters Patent Appeals have been preferred by these two appellants. 7. Counsel appearing for the appellants has placed reliance upon a judgment rendered by Hon’ble Supreme Court in Civil Appeal Nos. 5857 of 2015 dated July 27, 2015 and also has contended that once the recognition is given by the NCTE under Section 14(6) of the Act, 1993, there is no need of affiliation of the University. It is also contended by the counsel for the appellants in both the Letters Patent Appeals that the respondent-University has followed “pick and choose method”. For few favourable affiliation have been given for three academic years whereas for these appellants year by year the affiliation has been given. One such example has been given to whom three years affiliation has been granted is Maharshi Paramhansh College of Education (Anenxure-20 of L.P.A. No. 242 of 2016). These aspects of the matter have not been properly appreciated by the learned Single Judge while dismissing the writ petitions preferred by these appellants and hence, the judgment and order passed by the learned Single Judge deserves to be quashed and set aside. 8. These aspects of the matter have not been properly appreciated by the learned Single Judge while dismissing the writ petitions preferred by these appellants and hence, the judgment and order passed by the learned Single Judge deserves to be quashed and set aside. 8. Counsel for the respondent-University submitted that as there was no application for affiliation by the respondent University to these appellants for imparting the B.Ed education for the academic year 2014-15, as pointed out by the Hon’ble Supreme Court in a decision reported in (2013) 2 SCC 617 , there is no question of grant of affiliation whatsoever arises at this stage. 9. It is also contended by the counsel for the respondent-University that there is a pre-planned, well designed action on the part of these appellants. Even an affidavit was also given by the appellant as per Annexure-15 dated 06.09.2014 to the memo of L.P.A. No. 242 of 2016 to the effect that they are not going to give any admission for the academic year 2014-15, whereas, infact in breach of this affidavit the admissions were granted because they were in the Business of Education, instead of imparting education in a lawful manners. 10. It is further submitted by the counsel for the respondent-University that without any affiliation for the academic year 2014-15, these appellants have given admissions to the students and by now the regular examination of B.Ed for the other legally, validly affiliated colleges is over by the end of April, 2015 and hence, no question of grant of affiliation with retrospective effect whatsoever arises and there is no statutory duty vested in respondent-University for grant of affiliation with retrospective effect and hence, no writ of mandamus can be issued by this Court. 11. It is also submitted by the counsel for the respondent-University that these appellants cannot get advantage of a ratio propounded by the Hon’ble Supreme Court in Binod Bihari Mahato Case - Civil Appeal No. 5857 of 2015 judgment dated July, 27, 2015 mainly for the reason that in the facts of that case application for affiliation was preferred in time, fault lies on the part of the concerned University, in Binod Bihari Mahato’s case an examination was not over and hence, on the basis of these three vital facts the decision rendered by the Hon’ble Supreme Court, whereas, the facts of the present case are absolutely otherwise viz. the applications in both the Letters Patent Appeals have never been preferred on or before 10th March, 2014 for affiliation. In one case, it was preferred on 06.02.2015 (L.P.A. No. 241 of 2016) i.e. which is at the fag end of the academic year and in another case though it is alleged by the appellant that it was preferred on 17th March, 2014, but, the University has never received. Thus, there were no legal and valid applications for affiliation. Moreover, no fault lies on the part of the respondent-University and in the present case, now examination for B.Ed for the academic year 2014-15 is over for all other colleges which are legally affiliated by the respondent University and validly recognised by NCTE. These facts make the present case different from the facts of Binod Bihari Mahato’s case. 12. Counsel appearing for the respondent-University has taken this Court to various annexures and has pointed out that from the very beginning a condition has been attached with even recognition by NCTE that unless the affiliation is given by the University these two appellants will not start imparting B.Ed education. Unnecessarily boldness has been shown by these two appellants which resulted into misfortune for the students and hence, rightly cost has been awarded by the learned Single Judge which is at Rs. 25,000/- per student. Total numbers of students in both the Letters Patent Appeals admitted by both the appellants for the academic year 2014-15 are 200. Moreover, to the pre-planned well designed and deliberate action of these two appellants the fees paid by the students are also to be refunded and nothing has been done by these two appellants neither the cost is paid nor fees has been refunded and hence, the learned counsel for the respondent-University submitted that no error has been committed by the learned Single Judge while deciding the two writ petitions preferred by these two appellants hence, these Letters Patent Appeals may not been entertained by this court. 13. Counsel appearing for respondents-NCTE submitted that he is adopting all the arguments canvassed by the counsel for the respondent-University. 13. Counsel appearing for respondents-NCTE submitted that he is adopting all the arguments canvassed by the counsel for the respondent-University. Over and above these arguments additionally it is submitted by the counsel for the NCTE that looking to Annexure-1 to the memo of LPA No. 242 of 2016, there is a condition 4(ii) to the effect that institution shall make admission only after it obtains affiliation from examining body in terms of clause 8(12) of the NCTE (Recognition Norms & Procedure) Regulations, 2009 and these two appellants have committed breach of this type of conditions. Moreover, it is submitted by the counsel for the NCTE that even though the recognition has been given by the NCTE, when a condition is imposed while granting the recognition that affiliation ought to have been taken in such situation, despite recognition, without affiliation no student can be admitted in B.Ed course. 14. Counsel appearing for the NCTE has taken this Court to paragraph no.87.1 to be read with 87.4 of the judgment delivered by Honourable Supreme Court reported in (2013) 2 SCC 617 and has submitted that no error has been committed by the learned Single Judge while deciding two writ petitions preferred by these two appellants and hence, this Letters Patent Appeals may not been entertained by this Court Reasons: 15. Having heard counsels for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain these two Letters Patent Appeals mainly for the following facts, reasons and judicial pronouncements: (i) These two appellants are the original petitioners, who have preferred W.P.(C) No. 566 of 2016 and W.P.(C) No. 5304 of 2015 which were dismissed by the learned Single Judge by a common judgment and order dated 3rd May, 2016 and therefore, the original petitioners have preferred these two Letters Patent Appeal for getting affiliation for their B.Ed College for the academic year 2014 - 15, despite, the fact that there was no application for affiliation to the respondent-University as required, as per the decision rendered by Hon’ble Supreme Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of Uttar Pradesh & others reported in (2013) 2 SCC 617 in para 87.1 and 87.4. For ready reference these two paragraphs reads as under: “87.1. State of Uttar Pradesh & others reported in (2013) 2 SCC 617 in para 87.1 and 87.4. For ready reference these two paragraphs reads as under: “87.1. Schedule for Recognition and Affiliation 87.1.1 Submission of applications for recognition in terms of Regulation 5(4) 1st September to 1st October of the year immediately preceding the relevant academic year 87.1.2 Communication of deficiencies, shortcomings or any other discrepancy in the application submitted by the applicant to the applicant in terms of Regulation 7(1) Within 45 days from the date of receipt of the applications 87.1.3 Removal of such deficiencies by the applicant Within 60 days from the date of receipt of communication 87.1.4 Forwarding of copy of the application to the State Government/UT Administration for its recommendations/ comments in terms of Regulation 7(2) Within 90 days from the date of receipt of the application 87.1.5 Recommendations/comments of the State Government/UT Administration to be submitted to the Regional Committee under Regulation 7(3) Within 30 days from the date of issue of letter to it 87.1.6 If recommendations/comments are not received within 30 days, the Regional Committee shall send to the State Government/UT Administration a reminder letter for submission of the recommendations/ comments Within seven days from the date of expiry of the period of 30 days 87.1.7 State Government/UT Administration shall furnish the recommendations/comments Within 15 days from the date of receipt of such reminder letter 87.1.8 Intimation regarding inspection by the Regional Committee to the applicant under Regulation 7(4) Within 10 days from final scrutiny of the application 87.1.9 Report by the Inspection Committee under Regulation 7(5) 20 days thereafter 87.1.10 Letter of intent to the institution with respect to grant or refusal of recognition in terms of Regulation 7(9) 10th of February of the succeeding year/relevant year 87.1.11 Time to comply with certain specified conditions, in terms of Regulations 7(10) and 7(11) 20 days from the date of issuance of letter of intent 87.1.12 Issuance of formal order of recognition By 3rd March of each year 87.1.13 Last date for submitting proposal for affiliation By 10th March of each year 87.1.14 Forwarding of proposal by the University to the State Government/UT Administration after inspection by expert team By 10th March of each year 87.1.15 Comments to be submitted by the State Government/UT Administration, if any By 10th March of each year 87.1.16 Final date for issuance/grant of affiliation for the relevant academic year By 10th March of each year “87.4. We make it clear that no Authority/person/Council/Committee shall be entitled to vary the Schedule for any reason whatsoever. Any non-compliance shall amount to violating the orders of the Court.” (Emphasis Supplied) (ii) In view of the aforesaid decision, it was mandatory on the part of those institutions, who are willing to impart B.Ed education that they should apply for affiliation on or before 10th March of the year preceding to the year for which the affiliation is sought for. In the facts of the present case for the academic year 2014 – 15 such applications should have been preferred on or before 10th March 2014. In none of these two cases these two appellants have preferred applications for affiliation on or before 10th March, 2014. These facts have been properly appreciated by the learned Single Judge while dismissing the writ petitions preferred by these two appellants. (iii) It appears from the facts of the case that these two appellants are in a “Business of Education”, therefore, whole difficulty has arisen, not only, for these two appellants, but, more for the students who had got admission without affiliation and the whole year has gone in waste. Their B.Ed education is useful to teach their own children, but, not for getting, a public employment of a teacher etc. in the government schools. (iv) It is now high time for the Courts to take strict view in the matter. Too much leniency has lead to such type of difficulties. Businessmen in Education are taking advantage that everything will be set at right, at the cost of the students, but, enough is enough. As stated hereinabove in the reported decision (2013) 2 SCC 617 in no unequivocal terms or in no unambiguous language, it has been stated in paragraph no. 87.1 to be read with paragraph 87.4 etc. thereof that the institution ought to prefer an application for affiliation on or before 10th March of the preceding year of the year for which the affiliation is sought for. (v) In the facts of the present case, an affidavit was also filed by these appellants (Annexure-15 in L.P.A. No. 242 of 2016) that the institution will not give admission to the students without any affiliation. (v) In the facts of the present case, an affidavit was also filed by these appellants (Annexure-15 in L.P.A. No. 242 of 2016) that the institution will not give admission to the students without any affiliation. In breach of this affidavit admissions were given and they are in search of affiliation by way of writ of mandamus and that too after the academic year is over and when the examination conducted by the respondent-University for those other colleges who are legally and validly affiliated to the University. (vi) Looking to Annexure-1 to the memo of LPA No. 242 of 2016, there is a condition 4(ii) to the effect that the institution should get affiliation from the examining body. Examining body in this case is the respondent University. Thus, in breach of such type of condition the students were admitted for the academic year 2014-15 and hence, no writ of mandamus can be issued to the respondents for grant of affiliation to these appellants for the academic year 2014–15 for B.Ed course. These aspects of the matter have been properly appreciated by the learned Single Judge while dismissing the writ petitions preferred by these two appellants. (vii) Much has been argued out by the counsel for the appellants that in one case Hon’ble Supreme Court had permitted such type of affiliation which is Binod Bihari Mahato’s case-Civil Appeal No. 5857 of 2015 judgment dated July 27, 2015 (Annexure-12 to LPA No. 242 of 2016). This judgment is of no help to these appellants, mainly for the reason that: (a) in the facts of Bipin Bihari Mahato’s case, application for affiliation was preferred in time, whereas, in the facts of the present case applications were never preferred in time, as required in para-87.1 of the decision rendered by Hon’ble Supreme Court reported in (2013) 2 SCC 617 i.e. 10th March of the preceding year of the year for which the affiliation is sought for. (b) in Bipin Bihari Mahato’s case, the fault lies on the part of the respondent-University that because application was preferred in time and there was inaction on the part of the respondent University. (b) in Bipin Bihari Mahato’s case, the fault lies on the part of the respondent-University that because application was preferred in time and there was inaction on the part of the respondent University. Inaction can also be challenged in the court of law, whereas, in the facts of the present case, there is no fault lies on the part of the respondent-University because there was no application for affiliation as required - on or before 10th March of the preceding year. (c) in Bipin Bihari Mahato’s case, as stated by the Hon’ble Supreme Court in last paragraph of the said judgment, the examination of B.Ed was not over whereas, in the facts of the present case, normal/general for other colleges, B.Ed examination is already over, which are affiliated with the respondent-University for the academic year 2014 – 15. These facts make the present case different from the facts of Bipin Bihari Mahato’s case Civil Appeal No. 5857 of 2015, and hence, the ratio decidendi propounded by the Hon’ble Supreme Court is not applicable in these two Letters Patent Appeals. (viii) It further appears from the facts of the case that in similarly situated another case of Gopinath Singh B.Ed College Vs State of Jharkhand S.L.P.(C) No. 24241 of 2015, judgment dated 12.10.2015 if the examination is over and result is published, no relief was given to the college by the Hon’ble Supreme Court. This Special Leave Petition had preferred against the decision rendered by the Division Bench of this court in L.P.A. No. 242 of 2015 dated 04.08.2015. (ix) It is also contended by the counsel for the appellants that once the recognition is granted by NCTE, there is no need of affiliation by the respondent-University. This contention of the appellants is not accepted by this Court mainly for the reason that : (a) recognition and affiliation are two different and distinct concepts. Both are required in the eye of law. One is to be given by NCTE under the Act, 1993 and another is to be given by the University under Section 4(14) of the Jharkhand State University Act, 2000. Normally the respondent-University is granting affiliation initially for one year, thereafter there will be inspection of the college and if need arises further for one year or if there is satisfaction by the concerned committee then upon recommendation, it can be given for a longer period also. Normally the respondent-University is granting affiliation initially for one year, thereafter there will be inspection of the college and if need arises further for one year or if there is satisfaction by the concerned committee then upon recommendation, it can be given for a longer period also. In the facts of the present case initially affiliation was given for one year. An order granting affiliation for one year has accepted by these appellants. No writ has been preferred challenging this one year, affiliation order. It was conditional. Thus, conditions for affiliation have also been accepted by these appellants. Both the sides have acted on the basis of this conditional one year affiliation. Therefore, these appellants knowing, categorically that for subsequent academic year application must be preferred by them. Even affidavit has been given by these appellants as stated hereinabove that they shall not give admission to the students without affiliation (Annexure-15 to L.P.A. No. 242 of 2016). Even conditions have been attached while giving recognition by NCTE as per Annexure-1 to the memo of L.P.A. No. 242 of 2016 - condition no.4(ii). It appears that these appellants have observed these laws, affidavit and conditions of recognition more in breach than in compliance and that too with eyes, wide open enough, deliberately and hence, no error has been committed by the learned Single Judge, not only in dismissing both the writ petitions, but, also imposing cost of Rs. 25,000/- per student and with a further direction to refund the fees collected by these institutions to the students. (x) Counsel appearing for the appellants has tried to argue about violation of Article 14 vis-a-vis one Maharshi Paramhansh College because Maharishi Paramhansh College was given affiliation for three years as per Annexure-20 of LPA No. 242 of 2016. 25,000/- per student and with a further direction to refund the fees collected by these institutions to the students. (x) Counsel appearing for the appellants has tried to argue about violation of Article 14 vis-a-vis one Maharshi Paramhansh College because Maharishi Paramhansh College was given affiliation for three years as per Annexure-20 of LPA No. 242 of 2016. This contention is also not accepted by this Court mainly for the reason that: (a) there is “no legal obligation” on the part of the respondent-University that they must give affiliation for three years; (b) there is a “power” vested in the respondents to give affiliation, meaning thereby, to there is no “corresponding duty” that initially, it must give three years affiliation and much less there is any public duty vested in respondents, there is no breach of such duty and hence, no writ of mandamus can be issued upon respondents; (c) respondent-University has all power, jurisdiction and authority to give affiliation initially, for one year and thereafter, to inspect the college and to get the report etc. even for next year or subsequent academic year affiliation can be granted for one year. All depends upon the facts of the case and the subjective satisfaction arrived at by the University and normally, this Court will not interfere with, the subjective satisfaction arrived at by the respondent University while exercising powers under Article 226 of the Constitution of India. (d) in the facts of the present case, these two appellants started imparting B.Ed education from the academic year 2012-13 and they got affiliation for one year. For academic year 2013 - 14 again they got affiliation for one year. At that time they have never challenged the action of the respondent University that why only for one year the affiliation was granted. (e) knowing fully well that for the academic year 2013 – 14 affiliation was granted only for one year, they should have preferred an application on or before 10th March, 2014 for the academic year 2014 – 15 which they have not done. Even an affidavit to that effect has been filed as stated hereinabove. Even while granting recognition by NCTE there is a condition 4(ii) of Annexure-1 to L.P.A. No. 242 of 2016. Even an affidavit to that effect has been filed as stated hereinabove. Even while granting recognition by NCTE there is a condition 4(ii) of Annexure-1 to L.P.A. No. 242 of 2016. Thus, the action of these appellants is a pre-planned, well-designed and deliberate action for grant of admissions to the students in B.Ed education for which there was no affiliation from the respondent University. 16. The aforesaid facts, reasons and judicial pronouncements have been properly appreciated by the learned Single Judge while dismissing W.P.(C) No. 566 of 2016 and W.P.(C) No. 5304 of 2015 vide judgment and order dated 3rd May, 2016. We see no reason to take any other view than what is taken by the learned Single Judge. Even the cost which has been imposed is slightly on a lenient side, but, there is no Letters Patent Appeal for enhancement hence, we are not enhancing the same otherwise, this is a fittest case in which more cost could have been awarded by the learned Single Judge so as to put to an end such type of attitude on the part of the management. To bring to an end the Business of Education instead of B.Ed education, the cost is must, especially when the action is pre-planned well-designed and deliberate. It has become fashion nowadays to admit the students and thereafter to file petitions from the interest of the fees collected, from the students and to approach higher forum one after another. To curb such type of unnecessary litigation imposition of higher cost is must. Nothing new is to be decided by this Court, than what is already decided by the Hon’ble Supreme Court in reported decision (2013) 2 SCC 617 17. Hence, there is no substance in these Letters Patent Appeals and each Letters Patent Appeal is dismissed with cost of Rs. 50,000/- (Rs. fifty thousand only). The cost imposed by the learned single judge is maintained as it is because it is pertaining to Rs.25,000/- per student to be given to the students and to refund the fees to the students and the cost of Rs. 50,000/- in each of the LPA’s is for unnecessary litigations in these two LPA’s. Thus, the total amount of Rs.1,00,000/- (Rs. one lakh only) will be deposited by these appellants before the Secretary, Department of Women and Child Development & Social Welfare, Government of Jharkhand, Ranchi, towards the Juvenile Justice Fund. 50,000/- in each of the LPA’s is for unnecessary litigations in these two LPA’s. Thus, the total amount of Rs.1,00,000/- (Rs. one lakh only) will be deposited by these appellants before the Secretary, Department of Women and Child Development & Social Welfare, Government of Jharkhand, Ranchi, towards the Juvenile Justice Fund. This amount will be deposited in the Bank Account No. 3734498462-5, Jharkhand Juvenile Justice Fund, State Bank of India, Project Bhawan, Hatia, Ranchi, either by cheque or bank draft, within a period of twelve weeks from today, towards Juvenile Justice Fund. This amount shall be utilised for the welfare of the juveniles as per the duties assigned to the State under the Juvenile Justice Act. 18. A copy of this order will be sent to the: (a) Secretary, Department of Women and Child Development & Social Welfare, Government of Jharkhand, Ranchi; (b) Member Secretary, Jharkhand State Legal Services Authority, Nyaya Sadan, Doranda, Ranchi. 19. In view of the final disposal of the Letters Patent Appeals, all the Interlocutory Applications are also disposed of. 20. These Letters Patent Appeals will be enlisted on 17th August, 2018, just to verify, whether the cost awarded by the learned Single Judge and by the Division Bench have been paid or not.