Awadh Center Of Education For ... vs State Of U.P. & 4 Others
2015 Latest Caselaw 1446 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No-38                                                                                     A F R
 
Case :- WRIT - C No. - 42463 of 2014
 
Petitioner :- Awadh Center Of Education For Women Vill. Kharja & Another
 
Respondent :- State Of U.P. & 4 Others
 
Counsel for Petitioner :- Satyendra Kumar Singh,Mohd Hisham Qadeer,Rajjan Lal,S. Safdar Ali Kazmi
 
Counsel for Respondent :- C.S.C.,R.A. Akhtar
 

 
Hon. Pankaj Mithal,J. 

Heard Sri R.K. Ojha, Senior Advocate assisted by Sri Safdar Ali Kazmi and Sri Ramesh Rai, learned counsel appearing for the petitioners, learned Standing counsel appearing for respondents no. 1 to 4 and Sri R.A. Akhtar, learned counsel appearing for respondent no. 5.

All the counsel have agreed for final disposal of the petition on the basis of the pleadings on record.

A trust known as Awadh Public Charitable Trust established an educational institution known as Awadh Center of Education for Women in village Karja, Post Semariyawan, District Sant Kabir Nagar.

Petitioner no. 1 is the above institution and petitioner no. 2 is the Manager of the said institution.

The petitioners have preferred this writ petition for quashing of the office order dated 6.6.2014 (annexure 17 to the writ petition) which has been passed by the Secretary, Education, U.P. Lucknow.

The above office order directs for cancellation of affiliation of petitioner no. 1 for imparting education in BTC course on the ground that it does not fulfils the requirement of affiliation.

It is pertinent to note that previously a similar order was passed by the State Government on 13.6.2013. It was quashed by the High Court vide judgment and order dated 8.10.2013 passed in Writ Petition No. 47651 of 2013 as it was in violation of principles of natural justice with liberty to pass a fresh order.

It is in pursuance thereof that the present order which is impugned in this petition was passed by the Secretary Education U.P.

In assailing the above order, the submission of learned counsel for the petitioners is that petitioner no. 1 fulfils all the criterias laid down for grant of recognition and affiliation to run the BTC course. It was after recognition by the National Council of Teachers Education (in short NCTE), the affiliation to the said course was granted by the State Government. The said affiliation is not liable to be cancelled by respondent no. 1 on the basis of the new criterias which may have been added by the NTCE subsequently.

Learned Standing counsel has pointed out that the affiliation of petitioner no. 1 in the above course has been cancelled as mentioned in paragraph 4 of the impugned office order for the reason that it does not satisfy the norms as revised by NCTE vide notification dated 31.8.2009. He further submits that the affiliation to any institution or any course of study can not be granted or continued as of right and the respondents are justified in withdrawing the facility of affiliation on being satisfied that the institution fails to satisfy the conditions laid down for grant of affiliation.

The record of the petition reveals that NCTE vide order dated 6th January 2006 in exercise of powers under Section 15 (3) (a) of the NCTE Act, 1993 recognized petitioner no. 1 for the purposes of two years BTC course with the in take of 50 students w.e.f. 23rd December 2005. The aforesaid recognition was neither temporary nor time bound but of a permanent nature though it provides that the NCTE may withdraw the recognition under the provisions of Section 17 (1) of the NCTE Act.

The State Government vide order dated 17.3.2010 granted affiliation to the petitioner no. 1 for the purposes of BTC course w.e.f. session 2010-11 with the in take of 50 students annually. The aforesaid affiliation is also of a permanent nature and is not said to be temporary or for limited period.

The National Council for Teachers Education (Recognition of norms and procedure) Regulations, 2007 which were notified vide notification dated 27th November 2007 were applicable at the relevant time for recognition and affiliation to any institution or the course of study. The recognition and affiliation were both granted to the petitioner no.1 after it had satisfied the norms and criterias of the NCTE applicable at that point of time or the conditions of the State Government.

The aforesaid Regulations, 2007 were repealed by the NCTE (Recognition of norms and procedures) Regulations, 2009. The Regulations, 2009 apart from other things laid down certain new conditions and it is on the basis of those new conditions that the affiliation of petitioner no. 1 has been cancelled by the impugned order.

The Regulations, 2009 are prospective in nature as there is no provision therein which makes them retrospective in effect. Therefore, the said Regulations, 2009 would apply for the grant of recognition/affiliation to a institution or to any course of study from the date of their enforcement. They would not be applicable to the institutions or the course of study which had already been granted recognition/affiliation in the past.

Regulation 13 of Regulation, 2009 by sub-clause (3) clearly provides that it repeals the Regulations of 2007 and 2005 but such repeal shall not affect anything duly done therein. A plain and simple reading of Sub-clause (3) of Regulation 13 of the Regulations of 2009 clearly demonstrates that any action or any act done under the previous Regulations in a lawful manner would not be affected by the repeal of the aforesaid regulations. It has not been shown or rather it is not the case of the respondents that recognition or the affiliation earlier granted to petitioner 1 under the repealed Regulations was not lawful or in accordance with law.

In view of the above, the recognition/affiliation granted to petitioner no. 1 in the past would stand saved by Sub-clause (3) of Regulation 13 of the Regulations 2009.

Learned Standing counsel as well as Sri R.A. Akhtar appearing for the respondents states that Regulations, 2005 and the order of affiliation dated 17.3.2010 provides that the institution has to be fulfil the standards as may be laid down by the NCTE or the State Government from time to time for the purposes of grant of recognition and affiliation. The petitioner no.1 has failed to fulfil the new conditions. Therefore, the recognition has rightly been cancelled.

Undoubtedly, the earlier Regulations of 2005 as well as the conditions of recognition and affiliation do provide that the institution has to conform with the revised norms laid down by the NCTE/ State Government but that by itself would not be sufficient to cancel the affiliation of the institution unless the affected party is informed of the new norms and is given a notice to comply with the same.

The recognition and affiliation of an institution or a course of study are conceptually two different things. The recognition has to be granted by the NCTE on fulfilment of the norms/conditions laid down by the NCTE Act as provided by Section 14/15 of the said Act or the Regulations framed and notified thereunder. The affiliation comes later on. Section 16 of the NCTE Act provides for the grant of affiliation by the State Government/Affiliating Body after recognition by the NCTE for the purposes of holding Examinations.

The recognition granted to the petitioner no. 1 to run the BTC course with the intake of 50 students per annum, as stated earlier was of a permanent nature and was not cancelled or revoked by the NCTE. Once its recognition continues, the State Government can not suo motu cancel its affiliation on the ground that it fails to fulfil the changed conditions prescribed by the NCTE. In the event the institution fails to comply with the changed conditions of recognition as prescribed by NCTE, it is upto the NCTE to first take action for withdrawal of recognition. This has not been done. The affiliation is based upon recognition. Therefore, when on account non fulfilment of revised conditions the NCTE had not taken any steps for withdrawing recognition of petitioner no. 1, the State Government is not competent to revoke the affiliation. In such a situation, the only course open to the State Government was to have written to the NCTE for necessary action and to have waited for it before cancelling the affiliation of petitioner no. 1.

Even if the new or revised norms and conditions as may be laid down are to be followed, the authorities are legally bound to issue notice to the institution concerned pointing out the change in the norms and conditions and to grant it sufficient time atleast a year as has been prescribed to abide by the same. However, neither from the record nor from the impugned office order it is clear that any such intimation/notice was given or any time was granted to the petitioner no. 1 to comply with the changed terms and conditions/norms of the recognition/grant of affiliation.

The instant office order has been passed in pursuance of the order of the High Court but only by giving opportunity of hearing to the petitioners but without giving notice of the changed norms and conditions and opportunity to comply with the new conditions.

In the case of absence of such a notice and opportunity to comply with the revised norms, on the doctrine of fair play and principle of natural justice, the affiliation of the institution certainly can not be cancelled .

In view of the aforesaid facts and circumstances, first for the reason that the recognition/affiliation which was granted to petitioner no. 1 earlier stood saved by Sub-clause 3 of Regulation 13 of the Regulations 2009; secondly, for the reason that before cancelling the affiliation, the petitioners were not given any notice or opportunity to comply with the revised norms and conditions as has been laid down by Regulations, 2009; and lastly, as the NCTE itself had not withdrawn the recognition, the State Government was not competent to revoke the affiliation, therefore, the impugned office order dated 6.6.2014 can not be sustained in law.

Accordingly, office order dated 6.6.2014 (anneure 17 to the petition) is quashed with the direction to respondent no. 1 to ensure that the revised norms as laid down by Regulations of 2009 are complied with by the petitioners in the shortest possible time.

The writ petition is allowed. No order as to costs.

SKS

24.7.2015