Gujarat High Court
Shri P M Patel College Of Education vs The Registrar, Sardar Patel ... on 29 January, 2021
Bench: A.C. Rao
C/SCA/6656/2020 CAVJUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIALCIVILAPPLICATIONNO. 6656of 2020
With
CIVILAPPLICATION(FORDIRECTION) NO. 1 of 2020
In R/SPECIALCIVILAPPLICATIONNO. 6656of 2020
With
CIVILAPPLICATION(FIXINGDATEOF EARLYHEARING) NO. 2 of 2020
In R/SPECIALCIVILAPPLICATIONNO. 6656of 2020
With
CIVILAPPLICATION(FIXINGDATEOF EARLYHEARING) NO. 3 of 2020
In R/SPECIALCIVILAPPLICATIONNO. 6656of 2020
FORAPPROVALANDSIGNATURE:
HONOURABLEMR. JUSTICEA.C. RAO Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHRIP M PATELCOLLEGEOF EDUCATION
Versus
THEREGISTRAR,SARDARPATELUNIVERSITY
==============================================================================
Appearance:
MRGMJOSHI,SR. COUNSEL,WITHMRJAYRAJCHAUHANfor the Petitioner(s)No. 1,2
MR. DEVENDRAG RANA(6997)for the Petitioner(s)No. 1,2
MRDHAVALDAVE,SR. COUNSELWITHMRU P VYAS(1302)for the Respondent(s)No. 1
NOTICESERVEDBY DS(5)for the Respondent(s)No. 3,4
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CORAM: HONOURABLE MR. JUSTICE A.C. RAO
Date: 29/01/2021
CAVJUDGMENT
C/SCA/6656/2020 CAVJUDGMENT
Heard Mr. G.M.Joshi, learned Senior Counsel with
Mr. Jayraj Chauhan, learned advocate for the
petitioner, Mr. Dhaval Dave, learned Senior Counsel
with Mr. Udayan Vyas, learned advocate for the
respondent No.1 and Mr. Siddarth Dave, learned
advocate for the respondent No.2.
2. In the present petition, the petitioner has
prayed as under :-
"A. Issue a writ of certiorari and/or a writ in the nature
of mandamus and/or any other appropriate writ, order,
direction to quash and _ set-aside the show cause notice
dated 13.02.2020 issued by the WRC of NCTE by declaring it
to be null, void, ineffective and as to extent of non-
application of mind, it being contrary to the binding
decision of court of law, dehors the record and is being
illegal, bad, ultra vires, capricious And further be pleased
to quash and set-aside the action and inaction of the
respondent authority of S P University in removing the name
of the petitioner from the prospectus of central admission
cell of B.Ed., course for academic year 2020-21 and
consequent notice dated 04.03.2020 by declaring to be _
illegal, arbitrary, bad, ultravirus, capricious and further
be pleased to direct the respondent authorities being Sardar
Patel University to reflect the name of the present
petitioner on the website of the Sardar Patel University for
admission through central admission cell in the course of
B.Ed., for intake of 50 students for the academic year 2020-
21 and onwards as per NCTE regulation and further be pleased
to quash and set-aside the notification dated 04.03.2020 so
as note below the said notification issued by S P
University.
Interim reliefs:
B. Pending admission and till final disposal of the petition
the Hon'ble Court be pleased to direct respondent university
to incorporate name of the present petitioner college on the
website of the Sardar Patel University and direct the
university to accept the online admission application form
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for course of B.Ed., in academic year 2020-21 under central
admission cell and further be pleased to stay operation,
implementation and execution of the notification dated
04.03.2020 and the note below that and Further be pleased to
stay the vague notice issued by the NCTE, dated 13.02.2020
based on non-existent contents which is contrary to decision
of Hon'ble Court to meet ends of justice.
C. Pending admission and till final disposal of this
petition the Hon'ble Court be pleased to direct the
respondent-university to allocate students for the seat of
intake of 50 students in the course of B.Ed."
3. The short facts leading to filing of the present
petition are as under :
3.1 That the present petitioner is filing this
petition challenging the action and inaction on the
part of the respondent no.1 and 2 in not including
the name of the present petitioner college in
prospectus and reflecting name on website of
university in list of choice of colleges for filling
in admission form through central admission cell of
S. P. University for the academic year 2020-21 for
the course of B.Ed., which is conducted in the
present college on the flimsy ground on issuance of
show cause notice by the NCTE to be served upon the
petitioner institute without considering the contents
of the show cause notice and also without
ascertaining the fact as to whether the petitioner
has committed any breach of alleged provisions of
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applicable law when the recognition was granted or
have defaulted in complying with the conditions of
the regulations has applicable in 2002, 2005, 2007,
and 2014 or not.
3.2 That the NCTE regulation 2002 came into force
wherein, as per Rules appended as appendix are
applicable to the petitioner college, as per rule
7(d) requirement is that lease agreement if any, qua
government land, required on long terms lease as per
law of the concerned State, will also be considered
valid for the purpose for running the B.Ed. College.
That as per section 65 and 66 of provisions of
Gujarat Municipalities Act, land can be given on
lease by the municipality to any of the eligible
person for advancement of the purpose of municipality
on various conditions as enumerated in the Act for 9
years accordingly, decided to give land on lease for
tenure of 9 years with an option of further renewal,
consequently on 16.9.1991 vide resolution no 242 is
passed by the General Board of the Nagarpalika which
in the case of the petition has been renewed time and
again from 1992 onwards upon execution of lease
agreement by the chief officer, Vide order dated
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2.7.2017 chairman of AVKUDA and collector of Anand
has extended the lease of the land of the petitioner
institute upto 5.11.2026, Therefore, it is abundantly
clear that policy prevalent at relevant point of time
was applicable, which do not mandate lease to be
executed for period of 30 years, hence subsequent
objection of NCET in 2011 is bad in law.
3.3 That the petitioner has applied to the NCTE on
26.12.2003 seeking permission to start B.Ed., course
commencing from the academic year 2004, which was
granted. Affiliation was given to the petitioner by
the S P University pursuant to the recognition
granted by the NCTE in year 2004, In 2010, a
permanent affiliation was given by the Sardar Patel
University to present petitioner. That the petitioner
was constrained to challenge order dated 23.12.2008,
before the this Court by preferring Special Civil
Application No. 4996 of 2009, which was clubbed with
various other petitions and this Court wherein
interim protection was granted and subsequently
university was also directed to grant students by
reflecting the name of the petitioner college as
eligible college vide order dated 4.5.2010. That on
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14.8.2010 till 31.5.2017 until date of his
superannuation, the Principal came to be appointed as
per the applicable norms and standards of NCTE
Regulation of the year 2002, 2005 and 2009, which was
approved by the Sardar Patel University, As per the
amendment in the age of superannuation of the
principal an order came to be passed by the
petitioner and consequently S P University was
intimated to give extension to the services of the
Principal up to attaining age of 70 years. Therefore
dispute qua appointment of Principal was not
available to be raised by the S P University or the
NCTE even though time and again without application
of judicial mind and without ascertaining the record
mechanically issue of appointment of principal came
to be raised which is indicative of gross bias.
3.4 That on 23/26.7.2010 NCTE has amended the
regulation. The order of NCTE being illegal, was
immediately challenged before this Court by
preferring writ petition being Special Civil
Application No. 7743 of 2012 on 11.6.2012. An order
came to be passed on 26.6.2012 granting the interim
relief, even thereafter various orders came to be
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passed in the matter which is known to the respondent
authority, however final order came to be passed on
11.4.2019. That on 18.7.2013, the petitioner
institution is recognized by UGC under Section 2(f)
and 12B of the Act. That on 28.11.2014, new
regulations came to be passed by NCTE, In December,
2014, another amendment in Regulation 2014 came into
force. That on 9.11.2015 petitioner has received the
NAAC Accreditation in its award ceremony conducted on
14.9.15. That on 28.4.2017 & 29.5.2017 further
amendment came to be made in the NCTE Regulations.
After obtaining necessary permission from management,
an advertisement was published in the newspaper on
8.6.2017 and interview was fixed for appointment of
principal of the college, Principal Mr. Vipul Patel
came to be appointed vide order dated 22.6.2017 after
following the NCTE regulation so applicable, copies
of appointment order joining report at annexure AG,
appointment was sent for approval of the S.P.
University, which is pending for the reasons best
known to them, however employee was discharging the
duties, Thereafter, staff profile for the Principal
came to be prepared by the Management on 22.6.2017
and was immediately sent for approving body being
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Sardar Patel University for necessary approval. That
the NCTE Regulation dated 9.6.2017 are not
implemented with retrospective effect.
3.5 That on 1.11.2017, Staff profile was prepared
and it was presented before the concerned authority
of NCTE under the signature of Registrar of Sardar
Patel University, which comprises of 1 in charge
Principal, 7 Teachers as per requirement of
authority. That on 18th July, 2018 UGC regulation on
minimum qualification for appointment of teachers and
other academic staff in university and colleges and
measure for the maintenance of standard in higher
education were published, therefore S. P. University
had raised the objection by referring the clause 4.1
of the said regulation that Principal is not having
API score as suggested by the UGC 2018 regulation,
therefore it has kept the file pending before it,
even though such subsequent UGC regulations of 2018
are not applicable to the case on hand, therefore it
is specifically submitted that, bias, illegal,
malicious and high handed approach has been adopted
by the Vice Chancellor and Registrar of the S.P.
University. That the petitioner has requested the
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university to provide the staff profile accordingly
after due verification of the record as well as
consultation with employees, on 22.10.2018 the staff
profile has been approved and stamped by the in-
charge Registrar of Sardar Patel University, which
was presented with the NCTE. That on 20.11.2018,
further amendment came to be made in the NCTE
regulations by adding Appendix 16 and 17. That on
4.12.2018 order came to be passed by this Court,
therefore on 20.1.2019 the petitioners have tendered
detailed representation pointing out various aspects
of the case which has been ignored by the authority
concerned. That the Sardar Patel University vide
notice dated 17.1.2019 had directed the petitioner to
remain present for admission procedure to be
undertaken for the Academic Year 2019-2020 vide its
notification dated 17.1.2019, Pursuant to which,
Sardar Patel University has published public notice
on 7.2.2019 and prepared a note of meeting held on
5.2.2019 to give admission in B.Ed college, Sardar
Patel University vide its order dated 4.4.2019 has
intimated the petitioner to remain present for
admission procedure, consequently, Sardar Patel
University had allocated the students to petitioner
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college, thereafter, university has accepted the
enrolment of the students to the tune of 50, which is
as per allocated intact by NCTE including 21 open
students, 7 scheduled caste students, 7 Schedule
Tribe students, 15 SEBC students and grant total of
students are studying in 1st and 2nd year in the
petitioner college and are likely to appear in the
forthcoming examination to be held by College and
University. That on 11.4.2019, this Court has passed
an order where in it is recorded the finding after
considering the submission of the respective parties
that impugned order dated 25.11.2011 and 19.3.2012
have become ineffective and do not survive.
3.6 However, the representation of the petitioners
is also not considered by the authority concerned and
by meeting dated 23-26.7.2019, the recognition of
petitioner institution came to be withdrawn, which is
at Sr. No. 7 in the part-II of the action taken
report published by the respondent authority on the
website, That the order of the Western Region
Committee dated 23/26.07.2019 challenged before this
Court by way of Special Civil Application No. 13237
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of 2019 wherein this Court vide order dated
01.08.2019 had granted interim protection in favour
of the petitioner, In the meantime, while the
detailed order was received by the petitioner from
the office of the Western Region Committee of NCTE
and accordingly the present petitioner has preferred
an appeal under Section 17 of the NCTE Regulation and
Act which was registered by the authorities and upon
hearing the parties the appellate authority vide its
order dated 06.11.2019 was pleased to quash and set
aside the impugned order dated 26/27.07.2019. Even
though order of the WRC has been set aside, on
18.1.2020 a notice came to be issued by the office of
the S P University wrote a letter to the petitioner
intimating that university is bound by the directions
of the NCTE to comply with the withdrawal order
passed in the meeting dated 23/26.07.2019. That as
the petitioner were apprehending foul play at the
hands of VC and Registrar of the S P University,
preferred petition, wherein on 16.4.2019 this Court
has passed an order directing the State of Gujarat,
Anand Municipality as well as AUKUDA directing
authority not to interfere with the possession and
occupation of the land belonging to the petitioner
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pursuant to the lease agreement. That the Sardar
Patel University has issued a letter dated 05.02.2020
wherein it was informed that as mentioned in the memo
of show-cause notice issued by the NCTE appropriate
actions be taken by the college within time specified
therein. That from the bare perusal of the show cause
notice dated 13.02.2020 served upon petition on
19.2.2020 it was shocking to learn that, it is not
clear with the authority as to what are the defects
which have been found out in the institute of present
petitioner. The contents of the notice is so vague
that it is impossible for the petitioner to respond
to the contents of the notice because all the way
since 2004 till 2020 all the alleged defects have
been cured by the petitioner. It is stated that from
the contents of the show-cause notice it is visible
that the compliance of the queries raised by the NCTE
have been fulfilled therefore the impugned order were
quashed and set aside even though on the same ground
and on the same alleged non-compliance notice has
been reissued however as per the decision of this
Court above referred all the alleged defects does not
survived on account of efflux of time and change in
the regulation which are not applicable with
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retrospective effect, hence the issuance of the
notice is non application of judicial mind so as is
in colourable exercise of power.
3.7 That the agenda item of S. P. University is
challenged before this Court by filing Special Civil
Application No. 1359 of 2020, However, without
considering the above aspect the Sardar Patel
University has passed resolution at resolution no.11
on 21.01.2020, As the university has passed and
illegal resolution in dated 21.1.2020 where by
petitioner's college has been put into "no admission
zone" without there being any order from the NCTE
which is being recognising body passed and resolution
overreaching the applicable rules and regulation,
said illegal resolution came to be challenged by way
of SCA/5262/2020 before this Court where in vide
order dated 27.2.2020 action of the respondent
university has been stayed qua clause 11 sub clause
(4) of the meeting of the meeting of syndicate dated
21.1.2020.
3.8 That on 04.02.2020, the Sardar Patel University
has advertised through its central admission cell
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calling upon the candidates to fill in the forms for
securing admission in B.Ed., Course conducted by the
various collages affiliated by the Sardar Patel
University for the academic year 2020-21, With gross
bias, and in complete violation of decisions of this
Court so as on the non-existent and flimsy ground
Sardar Patel University as well as WRC of NCTE has
issued the notice dated 13.02.2020 served on
19.2.2020 and consequent letter dated 25.02.2020 and_
the notification dated 04.03.2020 where by petitioner
college is not shown in the list of college on
central admission cell of S P University for the
admission in the course of B.Ed., for the academic
year 2020-21 in its prospectus.
4. At the time of arguments, learned Senior Counsel
Mr.G.M. Joshi, appearing on behlaf of the petitioner,
has submitted that the impugned notice (page 69) is
undisputedly issued in exercise of the powers under
Section 17 (1) of the National Council for Teacher
Education Act, 1993, (hereinafter referred to as "the
Act"). The section is reproduced at page 54 at
paragraph 4.41. The section makes it absolutely clear
that the notice is required to be issued for the
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purpose of withdrawal of the recognition granted to
the institution concerned. It is stated in the
opening paragraph of the notice itself that the
institution was granted recognition by order dated 8
October 2004. (page 99). The recognition is from
academic session 2004 - 2005. It is not limited as
canvassed by the respondents. Therefore, there is no
ambiguity about the object and purpose of the notice
which is only for the purpose of withdrawal of the
recognition, which, even according to the notice
impugned is subsisting.
4.1 It is submitted that when the notice itself
mentions that recognition is in force in that the
same is issued for the purpose of showing cause as to
why action under section 17 (1) should not be taken,
it is not open for either of the respondents to even
remotely suggest that the purpose and the object of
the notice is different then what is stated in the
notice itself. The law on the subject is well
settled. In the case of Mohinder Singh Gill Versus
The Chief Election Commissioner reported in AIR 1978
SC 851 the Hon'ble Supreme Court, reaffirming the
clear judgement rendered in the case of Gordhandas
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Bhanji (AIR 1952 SC 16) has held in paragraph 8 as
follows:
"8. The second element matter is that when a
statutory functionary makes an order based on
certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the beginning
may, by the time it comes to court on account of a
challenge, get validated by additional grounds later
brought out. We may here draw attention to the
observations of Bose, J. in Gordhandas Bhanji (AIR
1952 SC 16) (at p.18):
"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 may, or of what was in
his mind, or what he intended to do. Public orders
made by public authorities are made to have public
effect and intended to affect the acting and conduct
of those to whom they are addressed and must be
construed objectively with reference to the language
used in the order itself".
Orders are not like old wine becoming better as they
grow older."
4.2 It is, therefore, submitted that it is not
open for the respondents to argue that the notice may
be is a case having been issued under some other
section or for some other purpose. Therefore,
petitioner submits that notice is only for the
purpose of showing cause as to why the recognition
should not be withdrawn. Undisputedly, even when such
notice and the proceedings resulted into withdrawal
of the recognition, it would have effect from the
session following day of the same order, as provided
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in subsection (3) of Section 17. Even the word
"session" means the academic session as can be
gathered from the language used in the order granting
recognition, which uses the phrase "academic session
2004 - 2005". In that view of the matter, it is not
open for the respondent University to exclude the
name of the petitioner institution from the list of
the colleges offering admission to the B.Ed. course,
as even in the order would be passed against the
petitioner institution it would have effect from the
session next, which would be at the most, academic
session 2021-22, if the order is passed in this year.
4.3 It is submitted that Section 17 itself
requires the issuing authority to specify the defects
or the contravention of any of the provisions of the
Act, or the rules, regulations, orders made issued
thereunder. The impugned notice does not mention any
contravention or breach or defect, the breach of
which is alleged calling upon the petitioner to
explain the same. The notice does not even informed
the petitioner about a reason why the recognition is
sought to be withdrawn. Therefore, the impugned
notice deserves to be quashed and set aside as it
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does not mention any ground on which the recognition
is sought to be withdrawn. Petitioner respectfully
submits that though the petitioner was advised to
answer to the notice, such answer was mentioning
about the past history which is already placed on
record. Such answer/response was only advanced as an
abundant caution. In absence of any grounds set out
in the notice, the fact of submitting the response
would not, in respect of submission of the
petitioner, come in the way of challenging the notice
on the above grounds.
4.4 To sum up, it is submitted that as on date
of the petition, the recognition granted from
academic session 2004 - 2005 by order dated 8 October
2004 is subsisting and not withdrawn, as all the
orders prior to the date of the impugned notice dated
13 February 2020 are rendered ineffective/defunct. As
the impugned notice itself is defective beyond
repair, the same deserves to be quashed and set aside
and the action of the respondent University excluding
the name of the petitioner institution from the list
of colleges offering education in B.Ed. course
deserves to be quashed and set aside and the college
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is required to be given permission to admit students
for the said course.
5. So far as the interim relief is concerned, it is
an admitted fact that during the course of arguments,
the last date for the admission had already gone.
Under the circumstances, the interim relief has
become infructuous. So the only question remains for
consideration before this Court is whether the show-
cause notice dated 13.02.2020 issued by the WRC on
NCTE is requirted to be declared null and void or
not.
6. It is vehemently submitted that when the
petitioner had issued notice under Section 17 of the
National Council for Teacher Education Act, 1993,
therefore, the respondent itself has admitted that
the registration is in favour of the petitioner and
they want to cancel the registration. It is
vehemently contended that when the notice under
Section 17 is issued, then the respondent cannot say
that the petitioner does not have any recognition
from the respondent. In the show-cause notice they
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have not stated anywhere that the petitioner requires
any further recognition from the respondent. He has
relied on the certificate issued by the respondent,
wherein certificate of accreditation is issued by the
respondent and therefore, they cannot pray that the
petitioner requires a fresh recognition.
6.1 In support of his submission, the learned
senior counsel has relied on the judgment of the Apex
Court rendered in case of Mohinder Gill vs. Election
Commissioner reported in 1978 (1) SCC 405, wherein,
it is observed as under :
"The second equally relevant matter is that when a
statutory functionary makes an order based on
certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented by
fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the beginning
may, by the time it comes to court on account of a
challenge, get validated by additional grounds later
brought ,out. We may here draw attention to the
observations of Bose J. in Gordhandas Bhanji (1)
"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
Ms mind, or what he intended to, do. Public orders
made by public authorities are meant to have public
effect and are intended to effect 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."
Orders are not like old wine becoming better as they
grow older:
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6.2 He has also relied on the judgment of the
Apex Court rendered in case of Abhyudya Sanstha vs.
Union of India and Others reported in 2011 (6) SCC
145 wherein, it is observed as under :
"18. We have considered the respective submissions
and carefully examined the records. In our view, the
appellants deserve to be non suited because they
have not approached the Court with clean hands. The
plea of inadvertent mistake put forward by the
learned senior counsel for the appellants and their
submission that the Court may take lenient view and
order regularisation of the admissions already made
sounds attractive but does not merit acceptance.
Each of the appellants consciously made a statement
that it had been granted recognition by the NCTE,
which necessarily implies that recognition was
granted in terms of Section 14 of the Act read with
Regulations 7 and 8 of the 2007 Regulations. Those
managing the affairs of the appellants do not belong
to the category of innocent, illiterate/uneducated
persons, who are not conversant with the relevant
statutory provisions and the court process. The very
fact that each of the appellants had submitted
application in terms of Regulation 7 and made itself
available for inspection by the team constituted by
WRC, Bhopal shows that they were fully aware of the
fact that they can get recognition only after
fulfilling the conditions specified in the Act and
the Regulations and that WRC, Bhopal had not granted
recognition to them. Notwithstanding this, they made
bold statement that they had been granted
recognition by the competent authority and thereby
succeeded in persuading this Court to entertain the
special leave petitions and pass interim orders. The
minimum, which can be said about the appellants is
that they have not approached the Court with clean
hands and succeeded in polluting the stream of
justice by making patently false statement.
Therefore, they are not entitled to relief under
Article 136 of the Constitution. This view finds
support from plethora of precedents.
23. In the result, the appeals are dismissed. Each
of the appellants is saddled with costs of Rs.2
lacs, which shall be deposited with the Maharashtra
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State Legal Services Authority within a period of
three months. If the needful is not done, the
Secretary, Maharashtra State Legal Services
Authority shall be entitled to recover the amount of
cost as arrears of land revenue.
24. We also declare that none of the students, who
had taken admission on the basis of allotment made
by the State Government etc., shall be eligible for
the award of degree etc. by the affiliating body. If
the degree has already been awarded to any such
student, the same shall not be treated valid for any
purpose whatsoever. WRC, Bhopal shall publish a list
of the students, who were admitted by the appellants
pursuant to the interim orders passed by this Court
and forward the same to the Education Department of
the Government of Maharashtra, which shall circulate
the same to all government and aided institutions so
that they may not employ the holders of such
degrees."
6.3 Relying on the above judgment, it is contended
that as per Section 17 of the Act, the order of
withdrawal or refusing recognistion can be said to
come into force only with effect from the end of the
academic sessions next following the date of
communication of such order. Under the circumstances,
the respondent was obliged to premit the present
petitioner to continue with the academic session and
the name of the petitioner - college was required to
be shown in the web-site and the petitioner was
required to continue with the admission imparting to
the students who had taken admission. The respondnet
has failed to consider that the petitioner has
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engaged professor and necessary known education staff
and the expenses of the salary and maintenance is
incured by the petitioner, so non-showing the name of
the petitioner has caused more difficulty to the
petitioner and the action itself is illegal.
7. Mr. Dhaval Dave, the learned senior counsel
appearing on behalf of the respondent No.1 has
contended that the present Petition deserves to be
dismissed at the threshold without entering in to the
arena of merits thereof as the main relief sought
therein is against the Show Cause Notice dated 13th
February, 2020 (page 69) issued by Western Regional
Committee (WRC) of National Council for Teacher's
Education (NCTE), Respondents Nos.3 and 4 herein.
This is ex-facie evident from the plain reading of
the prayer clause of the present Petition (page 56,
paragraph 8A). The principal prayer therein is for
quashing and setting aside the aforesaid Show Cause
Notice. The other prayer sought against the Sardar
Patel University, Respondent No. 1 herein, is sequel
to the principal relief for quashing and setting
aside the aforesaid Show Cause Notice. Because the
action of Respondent No.1 Sardar Patel University in
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not including the name of Petitioner No.1 College in
the process of admission was based upon the said Show
Cause Notice. It is the settled proposition of law
that unless the Show Cause Notice is patently found
to be wholly without jurisdiction, a writ petition
challenging the Show Cause Notice deserves to be not
entertained under Article 226 of the Constitution of
India. It is to be treated as premature in nature. It
cannot be said that the aforesaid Show Cause Notice
is without jurisdiction as Respondent No.3 has the
ample jurisdiction to issue the same. It is not even
the case of the Petitioners that it is without
jurisdiction. Reliance is placed, in support of this,
on Union of India v/s. Kunisetty Satyanarayan (2006)
12 SCC 28 (paragraphs 13 to 16.)
7.1 It is contended that without prejudice to
the aforesaid, even otherwise the present Petition
deserves to be dismissed on merits for multiple
reasons set out hereinafter. Firstly, as per the
Scheme of the National Council for Teacher Education
Act, 1993 (NCTE Act), the recognition from the
National Council of Teacher Education (NCTE) is
mandatory for conducting any course in the discipline
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of Teacher Education at the level of graduation
called B.Ed course. It is absolutely not permissible
for any college to run B.Ed course without such
recognition. (See sections 14 to 16 of the NCTE Act).
In the present Petition, the Petitioner has not
placed on record the subsisting recognition from NCTE
for running B.Ed course. Hence, the action of
Respondent No.1 Sardar Patel University in excluding
Petitioner No.1 College from the process of admission
for B.Ed course pending outcome of aforesaid Show
Cause Notice is absolutely in consonance with the
scheme of the NCTE Act.
7.2 It is contended that at this juncture, it
would be relevant to refer to the per contra
contention raised by the Petitioners. According to
the Petitioners, when the aforesaid Show Cause Notice
is issued under section 17 of the NCTE Act, the
recognition is presumed to be in existence in as much
as section 17 of the NCTE Act is for withdrawal of
the recognition. To be very precise, according to the
Petitioners, when said Show Cause Notice is under
section 17 of the NCTE Act, it is for withdrawal of
the recognition and hence there has to be recognition
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in force. However, the aforesaid Show Cause Notice,
if read in its entirety, it is not simplicitor for
withdrawal of the existing recognition. The said Show
Cause Notice is meant for the purpose of seeking
explanation of Petitioner No. 1 College on two
issues. Firstly, the said Show Cause Notice calls
upon Petitioner No. 1 College to prove that it has
the requisite staff as per The National Council for
Teachers Education (Recognition Norms and Procedure)
Regulations, 2014 ( hereinafter called 'Regulations
2014'). Secondly, the said Show Cause Notice calls
upon Petitioner No. 1 College to prove as to whether
the deficiencies recorded against Petitioner No. 1
College in the earlier order dated 25th November, 2011
withdrawing recognition of Petitioner No. 1 College
have been duly rectified or not. Thus, the said Show
Cause Notice is not for simplicitor withdrawal of an
existing recognition under Regulations 2014. It is
true that the said Show Cause Notice refers to
section 17 of the NCTE Act. However, the reference of
section 17 of the NCTE Act is not the decisive factor
for construing the true import thereof. It is
needless to mention that the true import of the said
Show Cause Notice is required to be culled out from
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the contents thereof and not from the provision of
law referred to therein for the purpose of issuing
the same. To support this proposition, reliance is
placed on Lekhraj Sathramdas Lalvani v/s. N.M.Shah,
Dy.Custodian cum Managing Officer, Bombay ;AIR 1966
SC 334 : (1966) 1 SCR 120 (Paragraph 4) and MIG
Cricket Club v/s. Abhinav Sahakar Education Society;
(2011) 9 SCC 97 (Paragraph 27).
7.3 It is contended that further to the
aforesaid, the following are deserved to be noted for
the purpose of appreciating the factual matrix which
led to the issuance of the aforesaid Show Cause
Notice.
[A] The recognition which Petitioner No. 1 College
has under the erstwhile regulations which were in
force prior to the introduction of Regulations 2014
was withdrawn by Respondent No. 3 vide order dated
25th November, 2011. The said order was confirmed in
appeal by the Appellate Authority of Respondent No. 4
on 19th March, 2012. These two orders withdrawing
recognition of Petitioner No. 1 College were
challenged by the Petitioners by filing SCA No. 7743
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of 2012. In this Writ Petition, this Honourable Court
passed an order dated 11th November, 2019 (Page 315).
Vide this order, it came to be recorded that as
Regulations 2014 has come into force pending further
hearing of the said Writ Petition, it would be
appropriate to permit Respondent No. 3 to consider
the case of Petitioner No. 1 College for grant of
recognition afresh under Regulations 2014 for which
requisite information was already submitted by
Petitioner No. 1 College. Hence, with this direction
the said Writ Petition was disposed of. This aspect
is referred to in the said Show Cause Notice vide
paragraph 8 thereof (Page - 70).
[B] Following the aforesaid order dated 11th April,
2019 (Page - 315) of this Honourable Court,
Respondent No. 3 considered the case of Petitioner
No. 1 College and passed an order dated 23 rd/26th
July, 2019 (Page - 333) declining to grant
recognition to Petitioner No. 1 College. This aspect
is also referred to in the said Show Cause Notice
vide paragraph 9 thereof (Page - 70).
[C] The aforesaid order dated 23rd / 26th July, 2019
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passed by Respondent No. 3 was challenged by the
Petitioners by preferring SCA No. 13237 of 2019 in
which this Honourable Court passed an order dated 1st
August, 2019 (Page - 335). Vide this order, this
Honourable Court issued a notice and restrained
Respondent No. 1 University from taking coercive
action against Petitioner No. 1 College. Here it
needs to be emphasized that this Honourable Court did
not grant stay against the implementation of the said
order dated 23rd/ 26th July, 2019 by which the
recognition was declined to Petitioner No. 1 College
under Regulations 2014. As it appears, realizing the
inadequacy of the aforesaid order dated 1st August,
2019, Petitioner No. 1 College preferred an appeal
before the Appellate Authority of Respondent No. 4
challenging the said order dated 23rd/ 26th July, 2019
of Respondent No. 3 declining the recognition to
Petitioner No. 1 College. In this appeal the
Appellate Authority passed an order dated 6th
November, 2019 (Page - 336). Vide this order the
Appellate Authority remitted the matter to Respondent
No. 3 for reconsideration on the issue of eligibility
of Petitioner No. 1 College for recognition in light
of Regulations 2014. This aspect is referred to in
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the said Show Cause Notice vide paragraph 11 thereof
(Page - 70).
[D] Following the aforesaid order dated 6th November,
2019 passed by the Appellate Authority of Respondent
No. 4, Respondent No. 3 issued the said Show Cause
Notice in due compliance thereof.
[E] Thus, even the factual matrix leading to the
issuance of the said Show Cause Notice leave no room
for the doubt that it was predominantly issued for
the purpose of considering the eligibility of
Petitioner No. 1 College for recognition under
Regulations 2014. Thus, by no stretch of imagination
it can be said that as the said Show Cause Notice
refers to section 17 of NCTE Act which is for
withdrawal of the recognition, it is to be presumed
that Petitioner No. 1 College is having the
recognition and till it is withdrawn it has the right
to continue as the college offering B.Ed course.
7.4 It is fruther contended that without
prejudice to the aforesaid even if it is assumed that
as the said Show Cause Notice refers to section 17 of
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the NCTE Act, the recognition in favour of Petitioner
No. 1 College is to be presumed as in existence till
it is withdrawn pursuant to the said Show Cause
Notice, no fault can be found with the decision of
Respondent No. 1 University in excluding Petitioner
No. 1 College from the process of admission pending
outcome of the said Show Cause Notice. Because it is
the policy of Respondent No. 1 University as pleaded
in its reply (Page 430 to 432 paragraph 4) not to
include any college in the process of admission
against which the Show Cause Notice is issued under
the NCTE Act on the issue of recognition.
Accordingly, in addition to Petitioner No. 1 College,
even other colleges against which Show Cause Notices
were issued have been excluded from the process of
admission. There is a rational behind this policy.
Once a Show Cause Notice is issued on the issue of
recognition, the concerned college is under the cloud
of uncertainty. In such situation, if the concerned
college fails to get recognition, the students
admitted to such college pending such Show Cause
Notice would be in great difficulty as they would not
be entitled to pursue their studies. The importance
of this aspect is highlighted by the Apex Court in
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its decision in the Chairman, Bhartia Education
Society & Anr. V/s The State of Himachal Pradesh &
Ors. (2011) 4 SCC 527 (paragraph 11 to 15, and 19 to
21).
7.5 It is contended that during the course of
hearing it was sought to be contended by the
Petitioners that it was not mandatory for them to
apply for recognition under Regulations 2014 if they
were having recognition under the erstwhile
Regulations. This contention is wholly devoid of
substance. Regulation 8 (11) of Regulations 2014
(Page 244) clearly conveys that all revised norms
under Regulations 2014 would be applicable to the
existing colleges also save and except on the aspect
of land area. Even apart from this, having submitted
requisite details as per Regulations 2014 for the
assessment of the same by Respondent No. 3 as
recorded in the order of this Honourable Court dated
11th April 2019 (Page - 315 - Paragraph 5), it does
not lie in the mouth of the Petitioners to contend
that fresh recognition under regulations 2014 is not
required.
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7.6 It is contended that with regard to the
contention raised by the Petitioners that in the
event of WRC of NCTE passing an order of withdrawal
of recognition, it would come into effect from the
next academic year being academic year 2021-22, it is
submitted that 1st proviso to Section 17(1) of the
NCTE Act, 1993 uses the expression "academic session"
and not "academic year". This means that as soon as
the "academic session" during which an order of
withdrawal of recognition is passed by NCTE, it shall
come into force at the end of that academic session.
The term "academic session" is to be understood with
reference to academic session fixed by the concerned
University. The academic session, so far as
Respondent No.1 University is concerned, commences
from the Month of June and ends in the Month of
November followed by another academic session from
December to April/May of the next year. Accordingly,
it is submitted that in the event of an order of
withdrawal of recognition is passed by NCTE, it shall
come in to force from the end of the academic session
and therefore it would not be permissible for
Petitioners to contend that even after passing of an
order of withdrawal of recognition, University is
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bound to grant permission for admission of students
as the order of withdrawal of recognition would come
into force only in the next academic year and not in
this academic year. In support of the interpretation
of expression 'academic session", reliance is placed
on the following decisions :-
[i] N. A. Gunasekaran v/s. The Regional
Director, Southern Regional Committee; 2015 SCC
Online Madras 5376.
[ii] Subhash Chandra Bose College v/s. NCTE; 2014
SCC Online MP 1312.
[iii] Banas Gram Vikas Samiti v/s. Vice
Chancellor; 2011 SCC Online Guj. 7424.
7.7 It is contended that without prejudice to
whatever stated hereinabove, it is required to be
noted that applications for admission to B.Ed Course
were invited from 22nd September, 2020 to 30th
September, 2020. (Refer page 11 of Civil Application
No.1 of 2020). First counseling was held from 19 th
October, 2020 to 22nd October, 2020. (Refer page 27 of
Civil Application No.2 of 2020). Second Counseling /
choice filing was held from 26th October, 2020 to 29th
October, 2020. (Refer last page of Civil Application
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No.3 of 2020). Thus, the process of admission to
B.Ed. course was already over.
7.8 It is contended that without prejudice to
the aforesaid submissions, it is pertinent to note at
this juncture that Western Regional Committee of
National Council for Teachers Education in its 321st
Meeting held on 9th to 11th November, 2020 by Agenda
item No.19 has resolved not to accord recognition to
Petitioner No.1 College. This significant development
after conclusion of hearing on the present Petition
ought to have been brought to the notice of the
Hon'ble Court by Petitioners herein as the Minutes of
the 321st Meeting of the WRC of NCTE is available on
the website of the NCTE. However, recently, pursuant
to the decision taken on Agenda Item No.19 , an Order
dated 19th December, 2020 has been passed by WRC of
NCTE whereby withdrawal order dated 25th November,
2011 is confirmed and recognition in favour of
Petitioner No.1 College is declined. In view of the
aforesaid significant development, present Petition
preferred by Petitioners is deserved to be dismissed
as having become infructuous. To be very precise,
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pursuant to the aforesaid Show Cause Notice, the
present Petition challenging the said Show Cause
Notice will not survive.
8. As against this, Mr. Siddharth Dave, the learned
counsel appearing on behalf of the respondent no.2
has drawn the attention of this Court to page no.220
of the petition, which is a withdrawal order passed
by the NCTE and inter alia, contended that as per the
said order dated 25.11.2011, the recognition of the
petitioner which was granted in the year 2004 is
already withdrawn by the said order and therefore,
the petiitoner cannot say that he is recognised and
he has any right to continue with the college. The
learned counsel has also drawn the attention of this
Court towards that fact that such order was
challenged by the petitioner by way of filing Special
Civil Application No.7743 of 2012 and the said
petition is also withdrawn by the petitioner. In the
said order it is clearly observed in para 5 as
under :
"5. In view of the above, since the implementation
of the impugned orders dated 25.11.2011 dated
19.03.2012 was stayed as per the interim order dated
26.06.2012 and since, in the meantime, the new
Regulations have come into force, the said impugned
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orders have become ineffective, and do not survive.
Hence, without expressing any opinion on the merits
of the petition, the same is disposed of
accordingly. However, the WRCNCTE shall be at
liberty to take the decision afresh in view of the
information furnished by the petitioner on
30.01.2019 in the light of the Regulations
prevailing as on date, and in accordance with law."
8.1 As per the observation made by the Court
that the injunction which was granted in favour of
the petitioner has become ineffective and does not
survivve, so the petitioner cannot say that his
recognition is continue. The Court has also observed
that the respondent NCTE is at liberty to take fresh
decision in view of the infromation supplied by the
petitioner on 30.01.2019 in the light of the
regularions prevailing as on date and therefore, the
show-caseu notice was issued. It is vehemently
contended that the notice cannot be challenged in the
writ petition.
8.2 In support of his submission, the learned
counsel has relied on the judgment of the Apex court
rendered in case of Medical Council of India vs. N.C.
Medical College and Hospital, reported in 2018 SCC
Online 664, wherein, it is observed as under :
"13. In the face of repeated failures on part of the
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Respondent College to remove the deficiencies, no
permission to make admissions for the current
academic session could have been granted unless and
until on physical verification everything was found
to be in order. A condition such as making students
aware about the pendency of the matter and stating
that their admissions would be subject to the result
of pending litigation, is not a sufficient
insulation. We have repeatedly seen cases where
after making such provisional admissions the
Colleges have been denied permission upon physical
verification. Questions then come up as to what is
the status of such students and how best their
interest can be protected. Theoretically, in terms
of conditions of Essentiality Certificate the
concerned State Government is obliged to take care
of interest of such students. But the harsh reality
is such students cannot be accommodated because in
normal circumstances all the seats in every Medical
College are filled up. It then becomes a case of
impossibility of accommodating such students in any
existing College. The entire exercise may thus
result in great hardship and wastage of academic
years of the concerned students. It is for this
reason that while granting any interim relief very
cautious approach needs to be adopted. It may be
possible to expedite the process of physical
verification in a given case but to allow
provisional admissions and make them subject to the
result of the petition may entail tremendous adverse
consequences and prejudice to students.
14. At this juncture we may advert to certain
decisions of this Court where the issues regarding
propriety and correctness of similar such interim
order were put in question.
15. A. In Medical Council of India v. Rajiv Gandhi
University of Health Sciences and others1, it was
observed :- :
"14. In the normal circumstances, the High
Court ought not to issue an interim order when
for the earlier year itself permission had not
been granted by the Council. Indeed, by grant
of such interim orders students who have been
admitted in such institutions would be put to
serious jeopardy, apart from the fact whether
such institutions could run the medical college
without following the law. Therefore, we make
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it clear that the High Court ought not to grant
such interim orders in any of the cases where
the Council has not granted permission in terms
of Section 10-A of the Medical Council Act. If
interim orders are granted to those
institutions which have been established
without fulfilling the prescribed conditions to
admit students, it will lead to serious
jeopardy to the students admitted in these
institutions."
16.B. In Medical Council of India v. JSS Medical
College and another , this Court stated :-
".....12. Without adverting to the aforesaid
issues and many other issues which may arise
for determination, the High Court, in our
opinion, erred in permitting increase in seats
by an interim order. In normal circumstances
the High Court should not issue interim order
granting permission for increase of the seats.
The High Court ought to realise that granting
such permission by an interim order has a
cascading effect. By virtue of such order
students are admitted as in the present case
and though many of them had taken the risk
knowingly but few may be ignorant. In most of
such cases when finally the issue is decided
against the College the welfare and plight of
the students are ultimately projected to arouse
sympathy of the Court. It results in a very
awkward and difficult situation. If on ultimate
analysis it is found that the College's claim
for increase of seats is untenable, in such an
event the admission of students with reference
to the increased seats shall be illegal. We
cannot imagine anything more destructive of the
rule of law than a direction by the Court to
allow continuance of such students, whose
admissions is found illegal in the ultimate
analysis.
13. This Court is entrusted with the task to
administer law and uphold its majesty. Courts
cannot by its fiat increase the seats, a task
entrusted to the Board of Governors and that
too by interim order ...."
17.C. The observations in Medical Council of India
v. Kalinga Institute of Medical Sciences (KIMS) and
others 3, were:
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"27. That apart, we are of the opinion that the
High Court ought to have been more circumspect
in directing the admission of students by its
order dated 25-9-20154. There was no need for
the High Court to rush into an area that MCI
feared to tread. Granting admission to students
in an educational institution when there is a
serious doubt whether admission should at all
be granted is not a matter to be taken lightly.
First of all the career of a student is
involved -- what would a student do if his
admission is found to be illegal or is quashed?
Is it not a huge waste of time for him or her?
Is it enough to say that the student will not
claim any equity in his or her favour? Is it
enough for student to be told that his or her
admission is subject to the outcome of a
pending litigation? These are all questions
that arise and for which there is no easy
answer. Generally speaking, it is better to err
on the side of caution and deny admission to a
student rather than have the sword of Damocles
hanging over him or her. There would at least
be some certainty.
28. Whichever way the matter is looked at, we
find no justification for the orders passed by
the High Court, particularly the order dated
25-9-2015 and order dated 4-3-2016."
18.D. Further, in Dental Council of India v. Dr
Hedgewar Smruti Rugna Seva Mandal Hingoli and Others
6, it was observed:-
"22. From the aforesaid authorities, it is
perspicuous that the court should not pass such
interim orders in the matters of admission,
more so, when the institution had not been
accorded approval. Such kind of interim orders
are likely to cause chaos, anarchy and
uncertainty. And, there is no reason for
creating such situations. There is no
justification or requirement. The High Court
may feel that while exercising power
under Article 226 of the Constitution, it can
pass such orders with certain qualifiers as has
been done by the impugned order, but it really
does not save the situation. It is because an
institution which has not been given approval
for the course, gets a premium. That apart, by
virtue of interim order, the Court grants
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approval in a way which is the subject-matter
of final adjudication before it. The anxiety of
the students to get admission reigns supreme as
they feel that the institution is granting
admission on the basis of an order passed by
the High Court. The institution might be
directed to inform the students that the matter
is sub judice, but the career oriented students
get into the college with the hope and
aspiration that in the ultimate eventuate
everything shall be correct for them and they
will be saved. It can be thought of from
another perspective, that is, the students had
deliberately got into such a situation. But it
is seemly to note that it is the institution
that had approached the High Court and sought a
relief of the present nature. By saying that
the institution may give admission at its own
risk invites further chaotic and unfortunate
situations.
23. The High Court has to realise the nature of
the lis or the controversy. It is quite
different. It is not a construction which is
built at the risk of a plaintiff or the
defendant which can be demolished or redeemed
by grant of compensation. It is a situation
where the order has the potentiality to play
with the career and life of young peoples. One
may say, "... life is a foreign language; all
mispronounce it", but it has to be borne in
mind that artificial or contrived accident is
not the goal of life. ......."
19. In the backdrop of the law laid down by this
Court, the High Court was not justified in passing
interim directions and permitting the Respondent
College to go ahead with provisional admissions for
the Academic Session 2018-19. We, therefore, allow
this appeal and set aside the order dated 29.05.2018
passed by the High Court.
8.3 He has also relied on the judgment of the
Apex Court rendered in case of Medical Council of
India vs. Jodhpur National University Institution for
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Medical Sciences reported in AIR 2018 SC 3114,
wherein the Supreme Court has stated that there was
no justification for passing interim relief and
permitting the concerned college to go ahead with the
provisional admission for the academic session.
8.4 It is contended that the show-cause notice
cannot be challenged, the law is very settled. It is
vehemently contended that the petitioner has not
supplied staff profile which is required for the
authentication. The petitioner has nowhere stated
that whether he required show-cause notice or not. It
is vehemently contended that the certificate of
accreditation, which is heavily relied upon by the
petitioner, is valid upto September, 13, 2020 and the
validation date has already passed and the
certificate cannot be said in force.
8.5 He has contended that against the show-cause
notice, the writ is not maintainable. In support of
his submission he has relied on the judgment of the
Apex Court rendered in case of Union of India and
Another vs. Kunesetty Satyanarayan, reported in 2006
(12) SCC 28, wherein, it is observed as under :
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"13. It is well settled by a series of
decisions of this Court that ordinarily no writ
lies against a charge sheet or show-cause
notice vide Executive Engineer, Bihar State
Housing Board vs. Ramdesh Kumar Singh and
others JT 1995 (8) SC 331, Special Director and
another vs. Mohd. Ghulam Ghouse and another AIR
2004 SC 1467, Ulagappa and others vs.
Divisional Commissioner, Mysore and others
2001(10) SCC 639, State of U.P. vs. Brahm Datt
Sharma and another AIR 1987 SC 943 etc.
14. The reason why ordinarily a writ petition
should not be entertained against a mere show-
cause notice or charge-sheet is that at that
stage the writ petition may be held to be
premature. A mere charge-sheet or show-cause
notice does not give rise to any cause of
action, because it does not amount to an
adverse order which affects the rights of any
party unless the same has been issued by a
person having no jurisdiction to do so. It is
quite possible that after considering the reply
to the show-cause notice or after holding an
enquiry the authority concerned may drop the
proceedings and/or hold that the charges are
not established. It is well settled that a writ
lies when some right of any party is infringed.
A mere show-cause notice or charge-sheet does
not infringe the right of any one. It is only
when a final order imposing some punishment or
otherwise adversely affecting a party is
passed, that the said party can be said to have
any grievance.
15. Writ jurisdiction is discretionary
jurisdiction and hence such discretion
under Article 226 should not ordinarily be
exercised by quashing a show-cause notice or
charge sheet.
16. No doubt, in some very rare and exceptional
cases the High Court can quash a charge-sheet
or show-cause notice if it is found to be
wholly without jurisdiction or for some other
reason if it is wholly illegal. However,
ordinarily the High Court should not interfere
in such a matter."
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8.6 Relying on the said, the learned counsel has
contended that there is nothing to show that the
notice is without jurisdiction or otherwise wholly
illegal. On the contrary, the notice is contempleted
under the Act and the petitioner is continued without
recruiting proper staff. It would amount to playing
with the future of the students. So, this writ
petition is required to be dismissed.
8.7 It is vehemently contended that it is stated
in the show-cause notice that notice is issued under
Section 17(1) of the Act. To substantiate his
submission, he has relied on the judgment of the Apex
Court rendered in case of Lekhraj Sathramdas Lalvani
vs. N.M. Shah, Deputy Custodian Cum Managing Officer,
Bombay and Others, reported in AIR 1966 SC 334,
wherein, it is clearly stated that :
"It cannot fail merely because it purports to be
made under a wrong provision if it can be shown to
be within its power under any other rule, and the
validity of the impugned order should be judged on a
consideration of its substance and not of its form.
The principle is that we must ascribe the act of a
public servant to an actual existing athority under
which it would have validity rather than to one
under which it would be void."
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8.8 He has also relied on the judgment of the
Apex Court rendered in case of Mig Cricket Club vs.
Abhinav Sahakar Education Society and Others,
reported in 2011 (9) SCC 97 wherein, in para - 27, it
is observed as under :
"It seems that the High Court misdirected itself by
considering the notification dated 10th April, 1985
to be the sanction of the Development plan
under Section 37(2) of the Act and the notification
dated 24th April, 1992 to be the modification of the
final Development plan which has rendered its order
illegal. It is trite that the validity of the order
does not depend upon the section mentioned in the
order. Wrong provision mentioned in the order itself
does not invalidate the order, if it is found that
order could be validly passed under any other
provision. However in a case, like the present one,
contrary to what have been mentioned in the
notifications the Court cannot say that such powers
were not exercised to render the notification
illegal if in fact such power exists."
(Emphasis supplied)
8.9 In paragraphs 11 and 12 of the said notice,
it is stated as under :
"11. And whereas, the institution has preferred an
appeal at NCTE Hars. New Delhi and the Appeal
Committee vide order dt. 06.11.2019 has decided as
under:
"In view of the fact that the Hon''ble High
Court has treated the earlier order of
Withdrawal dt. 25.11.2011 as ineffective and
not surviving and directed the WRC to take a
decision in view of the information furnished
by the appellant on 30.01.2019 and in the light
of the Regulations on date, the Committee is of
the opinion that the WRC should consider
whether, the appellant institution, which was
granted recognition for conducting B.Ed. course
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of one year duration on 08.10.2004 under the
then prevailing Regulations, fulfils the
requirements of 2014 Regulations, which not
only increased the duration of this course from
one year to two years and also introduced
various other infrastructural and instructional
requirements. For this purpose, all the
necessary information may be obtained from the
appellant, in addition to what has been
furnished by them earlier. The WRC may
thereafter take an appropriate decision and
issue necessary order as per the NCTE
Regulations, 2014 as amended from time to
time."
12. And whereas, the matter was placed before the
WRC in its 312" meeting of the WRC held on January
27" 29% 2020 and Committee decided as follows:
The Committee considered the matter keeping in
view the directions of the Hon'ble Court in SCN
No. 7743/2012 and also the Appellate.
Authority order dated 06.11.2019 and recommends
that the institution be issued a Show Cause
Notice to submit the required documents in
compliance to NCTE Regulations 2014, as amended
from time to time.
In view of the above, a Show Cause Notice be
issued u/s 17 of the NCTE Act to the
institution to reply within 30 days."
8.10 The plain reading of the said notice clearly
shows that the notice is issued on the basis of the
order passed by the High Court and it is not a notice
under Section 17 of the NCTE Act and merely stating a
wrong provision of the law would not itself convert
the said notice under Section 17 of the Act.
8.11 It is contended that the Court may not take
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any sympathetic view in favour of the petitioner,
otherwise it would be injustice to the students. If
the students get admission and thereafter they would
be in a great difficulty and they would not get any
further admission in the recognised college. To
substantiate his submission, the learned counsel has
relied on the judgment of the Apex court rendered in
case of Chairman, Bhartia Education Society and
Another vs. Statte of Himachal Pradesh and Others,
reported in 2011 (4) SCC 527, wherein, in para - 15,
it is observed as under :
"15. The practice of admitting students by
unrecognized institutions and then seeking
permission for the students to appear for the
examinations have been repeatedly disapproved by
this Court [See : N. M. Nageshwaramma vs. State of
AP - (1986) Supp. SCC 166, A.P. Christian Medical
Education Society vs. Government of AP - (1986) 2
SCC 667, and State of Maharashtra vs. Vikas Sahelrao
Roundale - (1992) 4 SCC 435]. We, therefore, find no
reason to interfere with the decision of the High
Court rejecting the prayer of the students admitted
in 1999 to regularize their admissions by directing
the Board to permit them to appear for the JBT
examination conducted by it. The two appeals (CA
Nos.1228 and 1229 of 2011) filed by the
Society/Institute and the students in regard to the
1999 admissions are therefore liable to be
dismissed."
8.12 It is vehemently contended that the
petiitoner - college is not recognised and therefore,
it is rightly not in any web-site and it is clearly
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shown in the web-site that the college is not
recognised and therefore, the students should not
take admission in the said college. It is contended
that the proviso in Section 17 of the Act would be
applicable when the admission session is going on.
During the admission session, notice under Section 17
is issued, then and then, the said proviso of Section
17 would be applicable.
8.13 In the present case, the admission session
is yet not started and therefore, the said would not
be applicable to the facts of the present case. In
support of his submission, the learned counsel has
relied on the judgment of the Apex Court rendered in
case of Banas Gram Vikas Samiti vs. Vice Chancellor &
2, reported in 2011 SCC Online Guj, 7424, wherein, it
is observed as under :
"11. Considering the facts stated hereinabove, no
relief can be granted in favour of the petitioner-
Trust. It is also found that vide a public notice
dated 13.08.2011 the students were informed that
recognition of the college run by the petitioner-
Trust is withdrawn and even affiliation is suspended
and the students were given chance to get themselves
transferred to recognized colleges by way of a
reshuffling, which itself shows that the
respondentUniversity had clearly informed about the
said events and on inquiry from the court it was
informed that about seven students have already
opted benefit of transfer and they have started
their studies in other recognized colleges and,
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therefore, the students, who have been continued
with the unrecognized college run by the petitioner-
Trust, cannot now be permitted to get terms for
inadequate attendance as, immediately after
allotment of students, as the facts reveal that
within less than 15 days, recognition was withdrawn
and, therefore, the students, who have still
continued with the unrecognized college run by the
petitionerTrust, cannot be permitted to appear in
the examination.
12. At this stage it would be appropriate to refer
to the judgment rendered by the Apex Court in the
case of Chairman, Bharatia Education Society & Anr.
Vs. State of Himachal Pradesh & Ors., (2011) 4 SCC
537, wherein the Apex Court has examined the very
provisions and has observed thus in Paragraph
Nos.19, 20, 21 and 22:
"19. The purpose of `recognition' and
`affiliation' are
different. In the context of NCTE Act,
`affiliation' enables and permits an
institution to send its students to participate
in the public examinations conducted by the
Examining Body and secure the qualification in
the nature of degrees, diplomas, certificates.
On the other hand, `recognition' is the licence
to the institution to offer a course or
training in teacher education. Prior to NCTE
Act, in the absence of an apex body to plan and
co-ordinate development of teacher education
system, respective regulation and proper
maintenance of the norms and standards in the
teacher education system, including grant of
`recognition' were largely exercised by the
State Government and Universities/Boards. After
the enactment of NCTE Act, the functions of
NCTE as `recognising authority' and the
Examining Bodies as `affiliating authorities'
became crystallized, though their functions
overlap on several issues. NCTE Act recognizes
the role of examining bodies in their sphere of
activity.
20. Section 14 of the NCTE Act requires
recognition of the institution by the NCTE,
before the institute could offer any course or
training in teacher education. Sub- section (4)
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of Section 14 provides that:
"14.(4) Every order granting or refusing
recognition to
an Institution for a course or training in
teacher education under sub-section (3) shall
be published in the Official Gazette and
communicated in writing for appropriate action
to such institution and to the concerned
examining body, the local authority or the
State Government and the Central Government."
Sub-section (6) of section 14 requires every
Examining Body on receipt of the order under
sub-section (4),
"14. (6)(a) grant affiliation to the
institution, where recognition has been
granted; or cancel the affiliation of the
institution, where recognition has been
refused.
21. Section 16 of NCTE Act provides that
notwithstanding
anything contained in any other law for the
time being in
force, no examining body shall grant
affiliation whether
provisional or otherwise, to any institution,
or hold
examination for a course or training conducted
by a
recognized institution,unless the institution
concerned has obtained recognition from the
Regional Committee of NCTE under section 14 or
permission for a course or training under
section 15 of the Act.
22. Sub-section (6) of section 14 no doubt
mandates every
examining body to grant affiliation to the
institution on
receipt of the order of NCTE granting
recognition to such
institution. This only means that recognition
is a condition precedent for affiliation and
that the examining body does not have any
discretion to refuse affiliation with reference
to any of the factors which have been
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considered by the NCTE while granting
recognition. For example, NCTE is required to
satisfy itself about the adequate financial
resources, accommodation, library, qualified
staff, and laboratory required for proper
functioning of an institution for a course or
training in teacher education. Therefore, when
recognition is granted by NCTE, it is implied
that NCTE has satisfied itself on those
aspects. Consequently, the examining body may
not refuse affiliation on the ground that the
institution does not have adequate financial
resources, accommodation, library, qualified
staff, or laboratory required for proper
functioning of the institution. But this does
not mean that the examining body cannot require
compliance with its own requirements in regard
to eligibility of candidates for admissions to
courses or manner of admission of students or
other areas falling within the sphere of the
State government and/or the examining body.
Even the order of recognition dated 17.7.2000
issued by NCTE specifically contemplates the
need for the institution to comply with and
fulfil the requirement of the affiliating body
and state government, in addition to the
conditions of NCTE."
13. In view of the aforesaid facts and circumstances
of the case, this Court cannot grant the reliefs
only on humanitarian ground, contrary to law and to
the students of an unrecognized institute like the
college run by the petitioner-Trust. Such students
are not entitled to appear in the examination held
by respondent No.1-University."
9. After considering rival submissions, it would be
appropriate to consider some of the provisions of the
NCTE Act. The NCTE Act is enacted by the Central
Government to provide for the establishment of a
National Council for Teacher Education with a view to
achieve planned and coordinated development for the
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teacher education system throughout the country, the
regulation and proper maintenance of norms and
standards in the teacher education system *[including
qualifications of school teachers] and for matters
connected therewith. [*inserted by Section 2 of the
NCTE (Amendment) Act, 2011, with effect from
01.06.2012]. Clause (c) of Section 2 of the NCTE Act
define 'Council' to mean the National Council for
Teacher Education established under sub-section (1)
of Section 3. Clause (d) define 'examining body' to
mean a University, agency or authority to which an
institution is affiliated for conducting examinations
in teacher education qualifications. Clause (e) of
Section 2 define 'institution' to mean an institution
which offers courses or training in teacher
education. Clause (l) of Section 2 define 'teacher
education' to mean programmes of education, research
or training of persons for equipping them to teach at
pre-primary, primary, secondary and senior secondary
stages in schools, and includes non-formal education,
part-time education, adult education and
correspondence education.
9.1 Section 12 of the NCTE Act deals with
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functions of the Council. As per Section 12, it shall
be the duty of the Council to take all such steps as
it may think fit for ensuring planned and coordinated
development of teacher education and for the
determination and maintenance of standards for
teacher education and for the purposes of performing
its functions under this Act, the Council may (a)
undertake surveys and studies relating to various
aspects of teacher education and publish the result
thereof; (b) make recommendations to the Central and
State Governments, Universities, University Grants
Commission and recognised institutions in the matter
of preparation of suitable plans and programmes in
the field of teacher education; (c) coordinate and
monitor teacher education and its development in the
country; (d) lay down guidelines in respect of
minimum qualifications for a person to be employed as
a teacher in recognised institutions; (e) lay down
norms for any specified category of courses or
training in teacher education, including the minimum
eligibility criteria for admission thereof, and the
method of selection of candidates, duration of the
course, course contents and mode of curriculum; (f)
lay down guidelines for compliance by recognised
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institutions, for starting new courses or training
and for providing physical and instructional
facilities, staffing pattern and staff
qualifications; (g) lay down standards in respect of
examinations leading to teacher education
qualifications, criteria for admission to such
examinations and schemes of courses or training; (h)
lay down guidelines regarding tuition fee and other
fee chargeable by recognised institutions; (i)
promote and conduct innovation and research in
various areas of teacher education and disseminate
the results thereof; (j) examine and review
periodically the implementation of the norms,
guidelines and standards laid down by the Council and
to suitably advise the recognised institutions; (k)
evolve suitable performance appraisal systems, norms
and mechanisms for enforcing accountability on
recognised institutions; (l) formulate schemes for
various levels of teacher education and identify
recognised institutions and set up new institutions
for teacher development programmes; (m) take all
necessary steps to prevent commercialisation of
teacher education; and (n) perform such other
functions as may be entrusted to it by the Central
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Government.
9.2 Section 13 of the NCTE Act deals with
inspection. As per sub-section (1) of Section 13, for
the purposes of ascertaining whether the recognised
institutions are functioning in accordance with the
provisions of this Act, the Council may cause
inspection of any such institution, to be made by
such persons as it may direct, and in such manner as
may be prescribed. As per sub-section (2), the
Council shall communicate to the institution the date
on which inspection under sub-section (1) is to be
made and the institution shall be entitled to be
associated with the inspection in such manner as may
be prescribed. As per sub-section (3), the Council
shall communicate to the said institution, its views
in regard to the results of any such inspection and
may, after ascertaining the opinion of that
institution, recommend to that institution the action
to be taken as a result of such inspection. As per
sub-section (4), all communications to the
institution under this section shall be made to the
executive authority thereof, and the executive
authority of the institution shall report to the
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Council the action, if any, which is proposed to be
taken for the purposes of implementing any such
recommendation as is referred to in sub-section (3).
9.3 Section 14 of the NCTE Act deals with
recognition of institutions offering course or
training in teacher education. As per sub-section (1)
of Section 14, every institution offering or
intending to offer a course or training in teacher
education on or after the appointed day, may, for
grant of recognition under this Act, make an
application to the Regional Committee concerned in
such form and in such manner as may be determined by
regulations. As per the first proviso to sub-section
(1), an institution offering a course or training in
teacher education immediately before the appointed
day, shall be entitled to continue such course or
training for a period of six months, if it has made
an application for recognition within the said period
and until the disposal of the application by the
Regional Committee. As per the second proviso to sub-
section (1), such institutions, as may be specified
by the Central Government by notification in the
Official Gazette, which (i) are funded by the Central
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Government or the State Government or the Union
territory Administration; (ii) have offered a course
or training in teacher education on or after the
appointed day till the academic year 2017-2018; and
(iii) fulfil the conditions specified under clause
(a) of sub-section (3), shall be deemed to have been
recognised by the Regional Committee.
9.4 As per sub-section (2) of Section 14, the
fee to be paid along with the application under sub-
section (1) shall be such as may be prescribed. As
per sub-section (3), on receipt of an application by
the Regional Committee from any institution under
sub-section (1), and after obtaining from the
institution concerned such other particulars as it
may consider necessary, it shall, (a) if it is
satisfied that such institution has adequate
financial resources, accommodation, library,
qualified staff, laboratory and that it fulfils such
other conditions required for proper functioning of
the institution for a course or training in teacher
education, as may be determined by regulations, pass
an order granting recognition to such institution,
subject to such conditions as may be determined by
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regulations; or (b) if it is of the opinion that such
institution does not fulfil the requirements laid
down in sub-clause (a), pass an order refusing
recognition to such institution for reasons to be
recorded in writing. As per the proviso to clause (b)
of sub-section (3), before passing an order under
sub-clause (b), the Regional Committee shall provide
a reasonable opportunity to the concerned institution
for making a written representation. As per sub-
section (4), every order granting or refusing
recognition to an institution for a course or
training in teacher education under sub- section (3)
shall be published in the Official Gazette and
communicated in writing for appropriate action to
such institution and to the concerned examining body,
the local authority or the State Government and the
Central Government. As per sub-section (5), every
institution, in respect of which recognition has been
refused shall discontinue the course or training in
teacher education from the end of the academic
session next following the date of receipt of the
order refusing recognition passed under clause (b) of
sub-section (3). As per sub-section (6), every
examining body shall, on receipt of the order under
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sub- section (4), (a) grant affiliation to the
institution, where recognition has been granted; or
(b) cancel the affiliation of the institution, where
recognition has been refused.
9.5 Section 15 of the NCTE Act deals with
permission for a new course or training by recognised
institution. As per sub-section (1) of Section 15,
where any recognised institution intends to start any
new course or training in teacher education, it may
make an application to seek permission therefor to
the Regional Committee concerned in such form and in
such manner as may be determined by regulations. As
per the proviso to sub-section (1), inserted by the
NCTE (Amendment) Act, 2019, with effect from
17.08.1995, the course or training in teacher
education offered on or after the appointed day till
the academic year 2017-2018 by such institutions, as
may be specified by the Central Government by
notification in the Official Gazette, which (i) are
funded by the Central Government or the State
Government or the Union territory Administration; and
(ii) fulfil the conditions specified under clause (a)
of sub-section (3), shall be deemed to have been
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granted permission by the Regional Committee. As per
sub-section (2) of Section 15, the fees to be paid
along with the application under sub-section (1)
shall be such as may be prescribed. As per sub-
section (3), on receipt of an application from an
institution under sub-section (1), and after
obtaining from the recognised institution such other
particulars as may be considered necessary, the
Regional Committee shall, (a) if it is satisfied that
such recognised institution has adequate financial
resources, accommodation, library, qualified staff,
laboratory, and that it fulfils such other conditions
required for proper conduct of the new course or
training in teacher education, as may be determined
by regulations, pass an order granting permission,
subject to such conditions as may be determined by
regulation; or (b) if it is of the opinion that such
institution does not fulfil the requirements laid
down in clause (a), pass an order refusing permission
to such institution, for reasons to be recorded in
writing. As per the proviso to clause (b), before
passing an order refusing permission under clause
(b), the Regional Committee shall provide a
reasonable opportunity to the institution concerned
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for making a written representation. As per sub-
section (4) of Section 15, every order granting or
refusing permission to a recognised institution for a
new course or training in teacher education under
sub-section (3), shall be published in the Official
Gazette and communicated in writing for appropriate
action to such recognised institution and to the
concerned examining body, the local authority, the
State Government and the Central Government.
9.6 As per Section 16 of the NCTE Act,
notwithstanding anything contained in any other law
for the time being in force, no examining body shall,
on or after the appointed day, (a) grant affiliation,
whether provisional or otherwise, to any institution;
or (b) hold examination, whether provisional or
otherwise, for a course or training conducted by a
recognised institution, unless the institution
concerned has obtained recognition from the Regional
Committee concerned, under Section 14 or permission
for a course or training under Section 15.
9.7 Section 17 of the NCTE Act deals with
contravention of provisions of the Act and
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consequences thereof. As per sub-section (1) of
Section 17, where the Regional Committee is, on its
own motion or on any representation received from any
person, satisfied that a recognised institution has
contravened any of the provisions of this Act or the
rules, regulations, orders made or issued thereunder,
or any condition subject to which recognition under
sub-section (3) of Section 14 or permission under
sub-section (3) of Section 15 was granted, it may
withdraw recognition of such recognised institution,
for reasons to be recorded in writing. As per the
first proviso to sub-section (1), no such order
against the recognised institution shall be passed
unless a reasonable opportunity of making
representation against the proposed order has been
given to such recognised institution. As per the
second proviso to sub-section (1), the order
withdrawing or refusing recognition passed by the
Regional Committee shall come into force only with
effect from the end of the academic session next
following the date of communication of such order. As
per sub-section (2) of Section 17, a copy of every
order passed by the Regional Committee under sub-
section (1), (a) shall be communicated to the
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recognised institution concerned and a copy thereof
shall also be forwarded simultaneously to the
University or the examining body to which such
institution was affiliated for cancelling
affiliation; and (b) shall be published in the
Official Gazette for general information. As per sub-
section (3) of Section 17, once the recognition of a
recognised institution is withdrawn under sub-section
(1), such institution shall discontinue the course or
training in teacher education, and the concerned
University or the examining body shall cancel
affiliation of the institution in accordance with the
order passed under sub-section (1), with effect from
the end of the academic session next following the
date of communication of the said order. As per sub-
section (4) of Section 17, if an institution offers
any course or training in teacher education after the
coming into force of the order withdrawing
recognition under sub-section (1), or where an
institution offering a course or training in teacher
education immediately before the appointed day fails
or neglects to obtain recognition or permission under
this Act, the qualification in teacher education
obtained pursuant to such course or training or after
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undertaking a course or training in such institution,
shall not be treated as a valid qualification for
purposes of employment under the Central Government,
any State Government or University, or in any
school/college or other educational body aided by the
Central Government or any State Government.
9.8 Section 18 of the NCTE Act deals with
appeals. As per sub-section (1) of Section 18, any
person aggrieved by an order made under Section 14 or
Section 15 or Section 17 of the Act may prefer an
appeal to the Council within such period as may be
prescribed. As per sub-section (2), no appeal shall
be admitted if it is preferred after the expiry of
the period prescribed therefor. As per the proviso to
sub- section (2), an appeal may be admitted after the
expiry of the period prescribed therefor, if the
appellant satisfies the Council that he had
sufficient cause for not preferring the appeal within
the prescribed period. As per sub-section (3), every
appeal made under this section shall be made in such
form and shall be accompanied by a copy of the order
appealed against and by such fees as may be
prescribed. As per sub-section (4), the procedure for
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disposing of an appeal shall be such as may be
prescribed. As per the proviso to sub-section (4),
before disallowing an appeal, the appellant shall be
given a reasonable opportunity to represent its case.
As per sub-section (6), the Council may confirm or
reverse the order appealed against.
9.9 In exercise of the powers conferred by
Section 31 of the NCTE Act, the Central Government
made the National Council for Teacher Education
Rules, 1997 (for brevity, 'the NCTE Rules'). Rule 10
of the NCTE Rules deals with appeal. As per sub-rule
(1) of Rule 10, any person aggrieved by a refusal
order made under Section 14 or Section 15 or
withdrawal order made under Section 17 of the NCTE
Act, may prefer an appeal in Form I or Form II
appended to the Rules, to the Council within sixty
days of issue of such orders, along with a fee of
Rs.25,000/- payable online with the submission of
appeal. As per the proviso to sub-rule (1), an appeal
may be admitted after the expiry of the said period
of sixty days, if the appellant satisfies the Council
that he had sufficient cause for not preferring the
appeal within the period of limitation of sixty days.
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As per sub-rule (2), the appeal may be submitted
electronically through online mode on the website of
National Council for Teacher Education along with
processing fee of Rs.10,000/-. The appellant shall
download the filled in online application and post
two sets of hard copies accompanied with the
requisite documents, to the Member Secretary, NCTE,
New Delhi within two days of online submission of the
appeal.
9.10 As provided in Form I, the memorandum of
appeal should be accompanied by a fee of Rs.1000/-
paid by way of crossed demand draft in favour of the
NCTE, New Delhi payable at New Delhi. The fee is non-
refundable and non-transferable. Memorandum of appeal
received without the prescribed fee shall not be
entertained. A copy of the order appealed against
should invariably be enclosed to the memorandum of
appeal. The appeal should be submitted in duplicate,
both copies with all enclosures. Copies of the
documents relied upon should be appended to the
memorandum of appeal. All documents enclosed to the
appeal should be duly authenticated by the appellant.
The Memorandum of Appeal should be on plain paper
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neatly typed in double space; should be addressed to
the Member Secretary, NCTE by designation only;
should contain an index for list of documents
indicating page numbers consecutively given; should
be complete in all respects and contain all material
statements and arguments on which reliance are
placed. The statements contained in the appeal should
be duly supported by documentary evidence, wherever
necessary; should not contain any extraneous or
irrelevant points; should be divided into suitable
paragraphs, each paragraph containing a specific
point or issue; should not contain any disrespectful
or improper language; should be signed on the left
hand side bottom of every page by an authorised
person giving his/her official position with the
office seal of the institution on whose behalf the
appeal is being preferred. Corrections, if any,
should be duly initialled. If there are any
deficiencies in the form or content of the appeal or
any other shortcomings, the appellant shall be given
an opportunity to cure them within 15 days of the
issue of a communication in this regard from the
Council. No extension of time will be allowed for
this purpose.
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9.11 Rule 11 of the NCTE Rules deals with
procedure for disposal of appeals. As per sub-rule
(1) of Rule 11, on receipt of memorandum of appeal,
the Council shall call for the records of the case
from the Regional Committee concerned which passed
the order appealed against and after giving the
appellant a reasonable opportunity of being heard
pass such orders as it may deem fit. As per sub-rule
(2), the appellant shall be entitled to be
represented by an employer or officer of the
appellant institution. As per sub- rule (3), the
Council shall decide every appeal as expeditiously as
possible and ordinarily every appeal shall be decided
on a perusal of documents, memorandum of appeal,
written arguments, if any, affidavits and after
hearing such oral arguments as may be advanced. As
per sub-rule (4), the Council shall endeavour to
dispose of every memorandum of appeal within a period
of three months from the date of its filing. As per
sub-rule (5), the Council shall not ordinarily allow
more than three adjournments in any appeal.
9.12 In view of the provisions under sub-section
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(1) of Section 17 of the NCTE Act, where the Regional
Committee, on its own motion or on any representation
received from any person, is satisfied that a
recognised institution has contravened any of the
provisions of the Act or the rules, regulations,
orders made or issued thereunder, or any condition
subject to which recognition under sub-section (3) of
Section 14 or permission under sub-section (3) of
Section 15 was granted, it may withdraw recognition
of such recognised institution, for reasons to be
recorded in writing. As per the first proviso to sub-
section (1), no such order against the recognised
institution shall be passed unless a reasonable
opportunity of making representation against the
proposed order has been given to such recognised
institution. As per the second proviso to sub-section
(1), the order withdrawing or refusing recognition
passed by the Regional Committee shall come into
force only with effect from the end of the academic
session next following the date of communication of
such order. In view of the provisions under sub-
section (3) of Section 17, once the recognition of a
recognised institution is withdrawn under sub-section
(1), such institution shall discontinue the course or
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training in teacher education, and the concerned
University or the examining body shall cancel
affiliation of the institution in accordance with the
order passed under sub-section (1), with effect from
the end of the academic session next following the
date of communication of the said order.
9.13 In State of U.P. v. Bhupendra Nath Tripathi
[(2010) 13 SCC 203], the Apex Court noticed that, as
per sub-section (3) of Section 17 once the
recognition of a recognised institution is withdrawn
under sub-section (1), such institution shall
discontinue the course or training in teacher
education, and the concerned University or the
examining body shall cancel affiliation of the
institution with effect from the end of the academic
session next following the date of communication of
the said order.
9.14 In Adarsh Shiksha Mahavidyalaya v. Subhash
Rahangdale [(2012) 2 SCC 425], the Apex Court
reiterated that the withdrawal of recognition becomes
effective from the end of the academic session next
following the date of communication of the order of
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withdrawal. Once the recognition is withdrawn under
sub- section (1) of Section 17 of the NCTE Act, the
concerned institution is required to discontinue the
course or training in teacher education and the
examining body is obliged to cancel the affiliation.
9.15 In Shri Morvi Sarvajanik Kelavni Mandal
Sanchalit MSKM B.Ed College v. National Council for
Teachers' Education [(2012) 2 SCC 16], it was
contended by the appellant that the students admitted
to the college for the academic session 2011-12 could
be allowed to appear in the examination to avoid
prejudice to them and to save their careers. It was
contended further that the order withdrawing
recognition could not affect students admitted to the
institution for the academic session 2011-12 as the
withdrawal order could only be prospective in nature
and having been passed in August, 2011 was relevant
only for the academic session 2012-13. Repelling the
said contentions, the Apex Court held that, the
recognition of the institution stood withdrawn on
20.07.2011 which meant that while it had no effect
qua admissions for the academic session 2010-11 it
was certainly operative qua admissions made for the
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academic session 2011-12 which commenced from
01.08.2011 onwards. The fact that there was a
modification of the said order of withdrawal on
24.08.2011 did not obliterate the earlier order dated
20.07.2011. The modifying order would relate back and
be effective from 20.07.2011 when the recognition was
first withdrawn. Such being the position admissions
made for the academic session 2011-12 were not
protected under the statute. Further, the Apex Court
has in a long line of decisions rendered from time to
time disapproved of students being allowed to
continue in unrecognised institutions only on
sympathetic considerations. The Apex Court held that,
the institution established by the appellant is not
equipped with the infrastructure required under the
NCTE Act and the Regulations. It is not in a position
to impart quality education, no matter admissions for
the session 2011-12 were made pursuant to the interim
directions issued by the High Court.
9.16 In view of the provisions under sub-section
(1) of Section 18 of the NCTE Act, any person
aggrieved by an order made under Section 17 of the
Act may prefer an appeal to the Council within the
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period prescribed. As per sub-section (2), the
Appellate Authority may admit an appeal filed after
the expiry of the period prescribed, if the appellant
satisfies that he had sufficient cause for the delay.
As per sub-section (3), every appeal shall be made in
the form prescribed and shall be accompanied by a
copy of the order appealed against and the fees
prescribed. As per the proviso to sub-section (4),
before disallowing an appeal, the appellant shall be
given a reasonable opportunity to represent its case.
9.17 In view of the provisions under sub-rules
(1) and (2) of Rule 10 of the NCTE Rules, any person
aggrieved by withdrawal order made under Section 17
of the NCTE Act, may prefer an appeal in Form I or
Form II, through online mode on the website of NCTE,
along with the fee and processing fee prescribed. As
per sub-rule (1) of Rule 11, the Council shall pass
such orders as it may deem fit on the appeal, after
giving the appellant a reasonable opportunity of
being heard. As per sub-rule (2), the appellant shall
be entitled to be represented by an employer or
officer of the appellant institution. In view of the
provisions under sub- rule (3) of Rule 11, ordinarily
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every appeal shall be decided on a perusal of
documents, memorandum of appeal, written arguments,
if any, affidavits and after hearing such oral
arguments as may be advanced.
9.18 Section 17 of the NCTE Act empowers the
Regional Committee of the NCTE to withdraw
recognition granted to an institution offering course
or training in teacher education, for reasons to be
recorded in writing, where the Regional Committee is
satisfied, on its own motion or on any representation
received from any person, that a recognised
institution has contravened any of the provisions of
this Act or the rules, regulations, orders made or
issued thereunder, or any condition subject to which
recognition under sub-section (3) of Section 14 or
permission under sub-section (3) of Section 15 was
granted. As per the first proviso to sub-section (1)
of Section 17, no such order against the recognised
institution shall be passed unless a reasonable
opportunity of making representation against the
proposed order has been given of 2020 to such
recognised institution.
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10. Keeping in mind tha above provisions, I am
of the view that the present petition cannot be
allowed on the following grounds. First, on the show-
cause notice, the writ petition is not maintinable
and therefore, the judgment on which the petitioner
has relied upon would not squarely applicable to the
facts of present case. Mere a show-cause notice or
notice itself does not infringe the right of anyone.
It is only when the decision is taken, then the party
can have any grievance against the said order. No
doubt, in a very rare and exceptional case, the High
Court quashes the show-cause notice if it is found
without jurisdiction or for some reason, it is wholly
unreasonable. The petitioner has not made out any
such case or allegation against the respondents.
Under the circumstances, the writ petition is not
maintainable. Second, pending the petition, the
admission process has already over on 29.10.2020.
Under the circumstances, I am of the view that the
present petition has become infructuous. Under the
circumstances, I am of the view that it would not be
advisable for this court to enter into the merits and
demerits of the case. In the decision in case of
State of Hariyana v. Krisna Rice reported in AIR 1982
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SC 1106, the Apex Court has clearly laid down that
once the petition has become infructuous, the High
Court should not decide it on merits. Under the
circumstances, I am of the view that the petition
does not require any further consideration and
requires to be dismissed as having become
infructuous. Third, the appeal is provided against
the order dated 4.5.2010. The NCTE Act is complete
code, it provids efficatious remedy. The writ is
barred by alternative remedy.
For the foregoing reasons, present petition
stands disposed of.
In view of disposal of main writ petition, the
Civil Applications do not survive. Hence, the Civil
Applications stand disposed of accordingly.
Sd/-
(A. C. RAO,J)
KAUSHIKD. CHAUHAN/DOLLY
