Shyama Prasad Mukherji College ... vs National Council For Teacher ...
2010 Latest Caselaw 3353 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 19th July, 2010.

+                           W.P.(C) No.4089/2010

%

SHYAMA PRASAD MUKHERJI COLLEGE
(FOR WOMEN)                                     ..... Petitioner
               Through: Mr. V.P. Singh, Sr. Advocate with Mr.
                        Ajoy B. Kalia & Mr. Mohinder J.S.
                        Rupal, Advocates

                                      Versus
NATIONAL COUNCIL FOR
TEACHER EDUCATION & ANR.                     ..... Respondents
                Through: Mr. Raju Ramachandran, Sr. Advocate
                         with Mr. Amitesh Kumar, Advocate for
                         respondent no.1.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     Yes

2.       To be referred to the reporter or not?              Yes

3.       Whether the judgment should be reported             Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner by this writ petition impugns the order dated 14 th May,

2010 of the Appeal Committee of the National Council for Teacher

Education (NCTE) dismissing the appeal of the petitioner against the order

dated 11/16th March, 2010 of the Northern Regional Committee (NRC)

withdrawing the recognition given to the petitioner for imparting education

in B.Ed. course. Notice of the petition was issued by the Division Bench of

this Court on 4th June, 2010. Vide order dated 14th July, 2010, the Division

Bench directed the petition to be listed before Single Bench for today. The

petition is accompanied with an application for interim relief. The senior

counsel for the petitioner informed that the University of Delhi while

inviting applications for admission to the B.Ed. programme commencing in

the year 2010 in Institutions affiliated to the University had mentioned the

name of the petitioner also as an Institution where the said programme is

offered, subject to the outcome of the present proceedings. It was thus

contended that if the present petition was to succeed and the orders

withdrawing recognition of the petitioner are to be set aside / quashed, the

petitioner would be entitled to admit students for the B.Ed. course for the

year 2010-11 also. It was contended that any delay in hearing of the petition

will make the petition infructuous. In the circumstances, though the counter

affidavit stated to be filed by the respondents was not on record, a copy of

the same was handed over in the Court and taken on record and the senior

counsels for the parties heard.

2. The petitioner is a multidisciplinary Constituent College of the

University of Delhi imparting education in 12 courses and having a strength

of nearly 2500 students in the year 2009-10. One of the courses in which the

petitioner College has been imparting education is Bachelor of Elementary

Education (B. El.Ed.). The petitioner in or about June, 2007 applied to the

NCTE (NRC) constituted under the National Council for Teacher Education

Act, 1993 for recognition for imparting education in B.Ed. The NCTE vide

its order dated 21st March, 2009 granted recognition / permission to the

petitioner for conducting B.Ed. course of Secondary (level) of one year

duration with an annual intake of 100 students, from the academic session

2009-10. The NCTE however vide its order dated 19th June, 2009 stating

that a complaint had been received on 3rd June, 2009, that the petitioner's

institution was not having adequate infrastructure facilities for running the

B.Ed. course separately, directed the effect of the recognition order dated

21st March, 2009 (supra) to be kept in abeyance. The petitioner was directed

not to admit students for the academic session 2009-10 until further orders.

It is the case of the petitioner that the matter was again considered in detail

and whereupon the respondents were satisfied of the complaint made being

baseless and vide order dated 3rd July, 2009 revoked the earlier order dated

19th June, 2009 (keeping the recognition granted in abeyance). It is the case

of the petitioner and not controverted by the respondents that the petitioner

admitted 100 students in the said course in the academic session 2009-10.

3. One Ms. Shubha Parmar, a lecturer in the Department of History in

the petitioner College filed WP(C) No.10150/2009 in this Court averring

lack of necessary accommodation and infrastructural facilities and funds in

the petitioner College to conduct B.Ed. classes and seeking directions to the

respondents herein to ensure that the B.Ed. classes were not commenced in

the College. The said writ petition was disposed of on 2nd December, 2009.

While it was the case of the College that the classes had already commenced

and there was no shortage of accommodation and infrastructure, the counsel

for the respondents herein submitted that the premises of the petitioner had

been re-inspected and a communication dated 20th October, 2009 had been

issued to the College in that regard and reply to which had been received on

17th November, 2009 and which was under consideration. This Court

disposed of the writ petition holding that if the said Ms. Shubha Parmar

remains aggrieved by the decision to be taken by the respondents as a result

of re-inspection, she would be entitled to her remedies in law.

4. The NRC, pursuant to the above, issued a show cause notice dated

20th January, 2010 to the petitioner enumerating / pointing out the following

deficiencies:

(i) The physical infrastructure for B.Ed. course is not as per NCTE

Norms for B.Ed.

(ii) The appointed staff is not qualified and has not been appointed

through duly constituted Selection Committee.

(iii) Library, laboratories and computer facility are being shared

with other courses.

5. The petitioner on receipt of the said show cause notice demanded

from the respondents the reports of the first Inspection Committee

constituted before the grant of recognition as also the report of the two fact

finding Committees who visited the College subsequent to the recognition.

It was stated that the said documents were required to respond to the show

cause notice. Upon the documents being not made available, the Right to

Information Act was also invoked. The petitioner ultimately replied to the

show cause notice on 9th February, 2010. Needless to state, the petitioner

refuted the observations on the basis whereof the show cause notice was

issued.

6. The NRC vide its communication dated 11/16th March, 2010 to the

petitioner withdrew the recognition granted to the petitioner to conduct

B.Ed. courses from the academic session 2010-11 on the following grounds:

i. Associate Professors, viz., Dr. Suman Kalia, Dr. Sudipta Ghose

and Dr. Veena Kapoor have not been selected through duly

constituted selection committee as per NCTE Norms for B.Ed.

         ii.        HOD has not been appointed till date.


         iii.       One lecturer has been appointed on adhoc basis which is not as

                    per NCTE Norms for B.Ed.




          iv.        Different physical facilities are still being shared with students

                    of other courses being run by the College.


         v.         The deficiencies related to physical infrastructure required for

                    B.Ed. course still exist.

The University of Delhi to which the petitioner College was affiliated

was also informed of the decision. It is the case of the petitioner that it was

for this reason only that the University of Delhi while inviting applications

for admission to B.Ed. course for the year 2010 made the admissions to the

petitioner College subject to approval of the appropriate authorities.

7. The petitioner preferred an appeal to the Appeal Committee of the

NCTE. The same was dismissed vide order dated 14th May, 2010 (supra)

holding that NRC was justified in withdrawing recognition.

8. The senior counsel for the petitioner has contended that:

(i) Recognition was granted to the petitioner just one year back,

after the respondents had fully satisfied themselves of the

petitioner being equipped to conduct the course.

(ii) Attention is invited to the report of September, 2009 of the

Visiting Team (Inspection Team) in which the said team had

expressed satisfaction as to the compliance by the petitioner of

all pre-requisites for conducting the said course. It is pointed

out that the petitioner had prior to grant of recognition, vide its

letter dated 3rd October, 2008 to the respondents, informed that

it had already appointed five new faculty members for B.Ed.;

that Dr. Suman Kalia, Dr. Sudipta Ghose & Dr. Veena Kapoor

till then teaching faculty of B.El.Ed., had been appointed for

B.Ed. course and the senior most amongst them Dr. Suman

Kalia was to be the Co-ordinator and that immediately on

getting recognition, the said teachers would be taking the B.Ed.

classes only and additional teaching faculty in lieu of the said

teachers had been appointed for the B.El.Ed. course. It is thus

contended that the appointment of the three teachers which

inter alia forms the ground for de-recognition was in the

knowledge of the respondents since prior to grant of recognition

and the respondents, who had on the said premise granted

recognition cannot turn turtle and de-recognize the petitioner

College.

(iii) Attention is again invited to the Inspection Report of

September, 2009 where the Visiting Team (Inspection Team)

had reported satisfaction as to the staff position including the

said three teachers and of their having been selected by the

Selection Committee of which University representative was a

member. Attention is also invited to the Visiting Team Report

(VTR) expressing satisfaction of selection of the faculty as per

the procedure / norms laid down by the NCTE.

(iv) Attention is next invited to the affidavit dated 27th November,

2008 stated to have been obtained by the respondents from the

Principal of the petitioner College and in which the particulars

of the three faculty members aforesaid and their qualifications

are given and on whose ground the petitioner has now been de-

recognized. It is stated that the facts on which petitioner has

been derecognized were well within the knowledge of

respondents since prior to grant of recognition.

(v) Attention is again invited to the letter dated 9th October, 2008 of

appointment of Dr. Suman Kalia being the senior most Reader

in the Department of Education as the Head of the Department

(B.Ed. Programme). It is thus contended that the ground in the

order of de-recognition of there being no Head of the

Department and all the three faculty members having not been

validly appointed are erroneous and contrary to the satisfaction

earlier reached by the respondents.

(vi) With respect to the ground of one of the Lecturers having been

appointed on ad-hoc basis, it is urged that the same was

necessitated owing to a sudden vacancy and the process of

permanent appointment by advertisement and inviting

applications as per the norms has already been completed.

(vii) With respect to the ground of sharing of various facilities with

students of other courses and deficiencies related to physical

infrastructure for B.Ed. course, it is contended that satisfaction

in this regard had been duly recorded prior to grant of

recognition and no change was alleged. Attention is invited to

the Visiting Team Report to the effect that there were over

10,000 books in the library of the petitioner with nearly 60%

being on education. It is further urged that the petitioner is an

eminent College of University of Delhi and the action of de-

recognition is motivated to help other Institutes / Colleges

recognized by the respondents for conducting the said course.

(viii) The senior counsel for the petitioner on the aspect of sharing of

facilities has also invited attention to Regulation 7(a) in

Appendix 4 (Norms & Standards for B.Ed. Degree) in the

NCTE (Recognition Norms & Procedure) Regulations 2009

which is as under:

"If more than one courses in teacher education are run by the same institution in the same campus, the facilities of playground, multipurpose hall, library and laboratory (with proportionate addition of books and equipments) and instructional space can be shared. The institution shall have only one Principal of the entire institution and Heads for different teacher education programmes offered in the institution."

It is thus contended that sharing of facilities, on which ground

the petitioner has been de-recognized is permitted.

9. The senior counsel for the respondents has contended that the

argument of the respondents having earlier recognized the petitioner for this

course cannot be invoked; it is urged that the NCTE Act provides for de-

recognition and if it is found that an Institute has been wrongly recognized,

it can be de-recognized. Attention is invited to the order of the Appeal

Committee where it is recorded that Dr. Suman Kalia, Head of the

Department did not have five years of teaching experience in a Secondary

Teacher Training Institution to qualify for appointment as HOD for the

B.Ed. course. The senior counsel for the petitioner is however quick to point

out that it is not controverted in the said order itself that the said Dr. Suman

Kalia had four years experience in the Department of Education, Delhi

University and has also worked as an ad-hoc guest lecturer for one year in

the College besides 12 years in B.El.Ed.; he urges that there is a provision

for relaxation of the said norm and Dr. Suman Kalia is eligible for such

relaxation.

10. The senior counsel for the respondents further contends that sharing of

facilities is permitted with another course in teacher education only and

cannot be with other disciplines in which the petitioner College is imparting

education. The senior counsel for the respondents contends that the

infrastructural facilities such as Library, Laboratory, Multipurpose Hall,

Psychology Lab, E.T. Lab etc. are being shared as per the Visiting Team

Report also. Attention is also invited to the Annexure to the counter affidavit

listing out the various Norms concerned. The senior counsel for the

petitioner in rejoinder has contended that the labs etc. are being shared with

the B.El.Ed. course only and not with the other courses.

11. What strikes one as odd in the present case is the flip flop attitude of

the respondents. The respondent NCTE has been constituted by a Central

Act intended to achieve planned and coordinated development of the teacher

education system throughout the country and for regulation and proper

maintenance of norms and standards in the teacher education system. The

respondent NCTE has been entrusted with the important task of granting

recognition to Institutes / Colleges entitled to offering course or training in

teacher education. The Act, Regulations and the Rules framed thereunder

lay down an elaborate process for the same. The nature of enquiry which

respondent NCTE is required to conduct before granting recognition is quite

evident from the application of the petitioner for recognition in the present

case itself having remained pending for nearly two years. The NCTE and

the Regional Committees are manned by persons whose qualifications are

prescribed in the Act and the Rules and who are supposedly experts in

assessing the capabilities of any Institute / College to offer a course or

training in teacher education. The Colleges / Institutes granted recognition

by the respondent NCTE have the important task of igniting and guiding the

minds of youngsters who constitute the future generation. The entire

conduct of the respondent NCTE in the present case however appears to

indicate that the NCTE or NRC are not sure of their own decision. Else, it

does not make sense as to why recognition once granted would, within a few

months thereafter, be kept in abeyance on receipt of a complaint and then

again within a few days re-validated. The complaint for the reason whereof

recognition granted was ordered to be kept in abeyance, was not relating to

matters not visible to the naked eye or capable of being kept under wraps;

there was no complaint of deliberate concealment. The complaint was of

lack of infrastructure. For inspecting the said infrastructure and for

satisfying as to whether the said infrastructure is available or not, not only is

the applicant required to submit various particulars but a Visiting Team of

independent qualified persons is appointed to survey, inspect physically and

otherwise the Institution and its records. The said Visiting Team submits

its report in a detailed prescribed form which contains separate columns

regarding the existence of the required infrastructure. Once such inspection

has been conducted, its report examined and on the basis thereof the

Regional Committee satisfied of the existence of the infrastructure,

entertaining complaints in that respect is not understandable. The question

of entertaining such complaints would arise only if NCTE and the NRC are

not sure of themselves and in the name of inspection and decision making a

superficial exercise is done, in dereliction of statutory mandate. This Court

desists from presuming so. However the NCTE needs to seriously introspect

in the matter.

12. Undoubtedly, the Act has conferred a power on the respondents to

withdraw the recognition. However, such an order can be made under

Section 17(1) of the Act, only on being satisfied that an Institution has

contravened any of the provisions of the Act, Rules, Regulations, Orders or

any conditions subject to which recognition was granted. There is no power

to, under the guise of Section 17, review the order granting recognition.

Power to review a decision is a creation of statute and no inherent power of

review can be said to be vested with an authority unless the statute confers

such power upon such authority.

13. There is no other option but to read Section 17 in this manner. Of

course in a given case if it is established that fraud had been practiced on the

Regional Committee in obtaining recognition and owing to which fraud the

Regional Committee was misled into believing the existence of a certain

state of affairs and which in fact did not exist, the Institute can be de-

recognized. However, the provision of Section 17 cannot be permitted to be

used as a provision in the hands of the Regional Committee to review their

orders and / or different officials from time to time taking different view on

a given state of affairs. If that were to be permitted it would lead to being

governed by rule of men instead of law. There is no obligation on the

Regional Committee / NCTE to grant recognition to every Institute/College

that applies for the same. It has been vested with the power to grant or

refuse. Regulation 7(7) of NCTE (Recognition Norms & Procedure)

Regulations, 2009 provides that the Regional Committee shall decide grant

of recognition or permission to an Institute "ONLY AFTER satisfying

itself". Once such satisfaction has been reached, a different person or the

same person at a different time cannot on the same parameters take a

different view. Inspite of universal acceptance of human fallibility, the law

leans strongly in favour of finality of decision.

14. The language of Section 17 permits de-recognition on grounds which

have accrued post recognition. The remedy of any person aggrieved by the

order of recognition is by way of an appeal under Section 18 and not by way

of Section 17(1). In my opinion the NRC in exercise of powers under

Section 17 is not entitled to say that the recognition granted was wrong. It is

however entitled to state that owing to subsequent events, the Institution

ceases to meet the parameters on basis whereof recognition was granted.

The present is not a case of any subsequent event. Neither is it the case of

the respondents nor has it been urged by the senior counsel for the

respondents that there is a change in the infrastructural facilities from that

when the recognition was granted and that owing to the said change the

infrastructural facilities are not as per the Norms.

15. In the present case, from the report of the September, 2009 of the

Visiting Team, it is quite clear that each and every matter now constituting a

ground for de-recognition was in the knowledge of the Regional Committee

at the time of grant of recognition. The Regional Committee having earlier

found the same to be as per the norms, cannot turn around and take a

different view.

16. There is another aspect of the matter. The show cause notice was on

three grounds only and that too vague. It was not stated as to what physical

infrastructure was not as per which norm. Similarly, it was not stated as to

which appointed staff was not found qualified and / or not appointed through

duly constituted Selection Committee. The objection regarding Library,

laboratories and computer facilities being shared with other courses was

equally vague. The senior counsel for the respondents has been unable to

show any prohibition against sharing. The sharing per se is also not found to

be detrimental to the interest of the Institution and its students. Sharing

would be a ground for refusing recognition if it is found that owing to such

sharing, the students are deprived of the use of the facilities. Else, in the

present times of dearth of space, nothing per se wrong is found in sharing of

facilities such as library, laboratories and computers. It is not as if the

students of B.Ed. course are required to be in the library or in the

laboratories or in use of computer facilities at all times. If the said facilities

in the interregnum are permitted to be used by students of other discipline,

no harm can be seen therein.

17. Section 17 envisages grant of an opportunity to the Institution sought

to be de-recognized. Such grant of opportunity cannot be reduced to a mere

formality. If the notice to show cause is in such vague terms as aforesaid,

the noticee Institution which has been granted recognition a few months

earlier only would be at loss to explain. In the present case also though Dr.

Suman Kalia, Dr. Sudipta Ghose and Dr. Veena Kapoor having not been

selected through duly constituted Selection Committees as per NCTE norms

has been made a ground for de-recognition but there was no reference to

them by name in the show cause notice. Similarly, though another ground of

de-recognition is taken that HOD has not been appointed but the same did

not form part of the show cause notice. Upon the same being put to the

senior counsel for the respondents, he contends that the same would be part

of "the appointed staff being not qualified". However such guess work

cannot be permitted. The Appeal Committee in the order impugned admits

that the Head of the Department existed but has held the said Head of the

Department being short of one year of experience. This again was neither a

ground in the show cause notice nor in the decision of the NRC. The senior

counsel for the respondents has fairly not urged anything with respect to the

ground of appointment of an ad-hoc teacher. With respect to library it may

be stated that it is not controverted that 10000 books reported by the Visiting

Team existed. As per the prescribed norms the books for the B.Ed. course

are much lesser in number. Again upon the same being put, the senior

counsel contended that the books are for other disciplines and not for B.Ed.

However neither the NRC order nor the order of the Appeal Committee of

de-recognition take the said ground.

18. With respect to the sharing of the space also it may be stated that the

norms provide for minimum of 10 square feet per student. Thus the

requirement is of 1000 square feet for 100 students. The orders impugned

are vague as to whether the said space was found available or not.

19. The show cause notice is the foundation on which the noticee builds

up its case. If the allegations in the show cause notice are not specific, and

are on the contrary vague, lack details and / or unintelligible that is sufficient

to hold that the noticee was not given proper opportunity to meet the

allegations indicated in the show cause notice. (see Commissioner of

Central Excise, Bangalore Vs. Brindavan Beverages (P) Ltd. (2007) 5 SCC

388).

20. The Supreme Court in Commissioner of Police, Bombay Vs.

Gordhandas Bhanji AIR 1952 SC 16 held that public orders, publicly made,

in exercise of a statutory authority cannot be construed in the light of

explanations subsequently given by the officer making the order of what he

meant, or of what was in his mind, or what he intended to do; public orders

made by public authorities are meant to have public effect and are intended

to affect the actings and conduct of those to whom they are addressed and

must be construed objectively with reference to the language used in the

order itself.

21. The orders impugned therefore do not inspire confidence. The

respondents cannot play with Institutions and trivialize the sanctity of the

elaborate procedure laid down for grant of recognition. The respondents

seem to forget that considerable effort and expense is entailed in setting up

an Institution and all of which is wasted if recognition is refused or

withdrawn in such frivolous manner. An Institution like wine matures with

the years and if de-recognized frequently as is being done would never

mature. It is not only the Institution but also the faculty and the students who

suffer by such conduct of the respondents. The senior counsel for the

respondents pointed out that students already admitted will not suffer.

However, the said argument ignores that the students passing from an

institute which has been de-recognized will carry a stigma with them and

their market value for placements shall be adversely affected. Similarly, the

petitioner College cannot be expected to employ and de-employ the faculty

as per the orders of recognition and de-recognition of the respondents from

time to time.

22. During the hearing, it was informed that the classes in the University

are to commence from tomorrow and unless the orders are immediately

pronounced, the University will not refer students for admission to the

petitioner College. In the circumstances, the order allowing the petition was

announced in the Court with reasons as herein contained to follow.

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

RAJIV SAHAI ENDLAW (JUDGE) 19TH JULY, 2010 gsr