SCA/12240/2006 1/45 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12240 of 2006 To SPECIAL CIVIL APPLICATION No. 12244 of 2006 With SPECIAL CIVIL APPLICATION No. 12866 of 2006 With SPECIAL CIVIL APPLICATION No. 12867 of 2006 With SPECIAL CIVIL APPLICATION No. 12869 of 2006 To SPECIAL CIVIL APPLICATION No. 12872 of 2006 With SPECIAL CIVIL APPLICATION No. 13888 of 2006 With SPECIAL CIVIL APPLICATION No. 13889 of 2006 With SPECIAL CIVIL APPLICATION No. 12209 of 2006 With SPECIAL CIVIL APPLICATION No. 12210 of 2006 With SPECIAL CIVIL APPLICATION No. 13833 of 2006 With SPECIAL CIVIL APPLICATION No. 13826 of 2006 With SPECIAL CIVIL APPLICATION No. 13025 of 2006 With SPECIAL CIVIL APPLICATION No. 1969 of 2006 With CIVIL APPLICATION No. 2713 of 2006 In SPECIAL CIVIL APPLICATION No. 1969 of 2006 With CIVIL APPLICATION No. 7753 of 2006 In SPECIAL CIVIL APPLICATION No. 1969 of 2006 With CIVIL APPLICATION No. 9341 of 2006 In SPECIAL CIVIL APPLICATION No. 12209 of 2006 To CIVIL APPLICATION No. 9343 of 2006 In SPECIAL CIVIL APPLICATION No. 12866 of 2006 With CIVIL APPLICATION No. 9345 of 2006 In SPECIAL CIVIL APPLICATION No. 12869 of 2006 To CIVIL APPLICATION No. 9348 of 2006 In SPECIAL CIVIL APPLICATION No. 12872 of 2006 With CIVIL APPLICATION No. 10079 of 2006 In SPECIAL CIVIL APPLICATION No. 12867 of 2006 With CIVIL APPLICATION No. 8740 of 2006 In SPECIAL CIVIL APPLICATION No. 13826 of 2006 SCA/12240/2006 2/45 JUDGMENT For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RADHESHYAM B.ED. COLLEGE THROUGH RASIKBHAI SHUKLA - Petitioner(s) Versus COMMISSIONER OF HIGHER EDUCATION & 3 - Respondent(s) ========================================================= Appearance : Special Civil Application No.12240/06 to 12244/06 MR ND NAVANATI-SR ADVOCATE WITH MR MITUL K SHELAT for Petitioner(s) : 1, MR SIRAJ GORI AGP for Respondent(s) : 1, MR JR NANAVATI for Respondent(s) : 2, MR AD OZA WITH MR DIPAK R DAVE for Respondent(s) : 3, MR PK JANI, for Respondent(s) :4. Special Civil Application No.12866/06 with Special Civil Application No.12867/06 with SCA 12869 to 12872/06 MR SHIRISH JOSHI for Petitioner(s) :1, MR AD OZA WITH MR DIPAK R DAVE for Respondent(s) : 1, MR SIRAJ GORI AGP for Respondent(s) : 2, MR DC DAVE for Respondent(s) : 3, MR PK JANI for Respondent(s) : 4. Special Civil Application No.13888/06 with SCA No.13889/06 MR AJ SHASTRI for Petitioner(s) :1, Rule served to Respondent(s) : 1. Special Civil Application No.12209/06 with SCA No.12210/06 MR SHIRISH JOSHI for Petitioner(s):1, MR AD OZA WITH MR DIPAK R DAVE for Respondent(s):1, MR SIRAJ GORI AGP for Respondent(s):2, RULE SERVED to Respondent(s) :3, MR PK JANI for Respondent(s): 4. SCA/12240/2006 3/45 JUDGMENT Special Civil Application No.13833/06 with SCA No.13826/06 MR HJ NANAVATI for Petitioner(s):1 MR SIRAJ GORI AGP for Respondent(s):1 ,2 MR PK JANI for Respondent(s) : 3 Special Civil Application No.13025/06 MR HJ NANAVATI for Petitioner(s):1 MR SIRAJ GORI AGP for Respondent(s):1, MR AD OZA WITH MR DIPAK R DAVE for Respondent(s) : 4 RULE SERVED to Respondent(s):2,3 DS affidavit not filed for Respondent(s):5, Special Civil Application No.1969/06 MR MRUGEN PUROHIT for Petitioner(s):1, MR AD OZA WITH MR DIPAK R DAVE for Respondent(s):1, MR SIRAJ GORI AGP for Respondent(s) : 2, MRS VD NANAVATI for Respondent(s):3, MR JR NANAVATI for Respondent(s):4, MR DC DAVE for Respondent(s):5, Civil Application No. 2713/06 MR MRUGEN PUROHIT for Applicant (s):1, MR AD OZA WITH MR DIPAK R DAVE for Respondent(s):1, MR SIRAJ GORI AGP for Respondent(s) : 2, MRS VD NANAVATI for Respondent(s):3, MR JR NANAVATI for Respondent(s):4, MR DC DAVE for Respondent(s):5, Civil Application No. 7753/06 MR DR DAVE for Applicant(s):1 MR MRUGEN PUROHIT for Respondent(s):1, MR SIRAJ GORI AGP for Respondent(s) : 2, MR DC DAVE for Respondent(s):3, MRS VD NANAVATI for Respondent(s):4, Civil Application No. 9341/06 to 9343/06 with Civil Application No. 9345/06 to 9348/06 MR SHIRISH JOSHI for Applicant(s):1, MR AD OZA WITH MR DIPAK R DAVE for Respondent(s):1, Civil Application No. 10079/06 MR SHIRISH JOSHI for Applicant(s):1, MR AD OZA WITH MR DIPAK R DAVE for Respondent(s):1, MR SIRAJ GORI AGP for Respondent(s):2, MR DC DAVE for Respondent(s):3, MR PK JANI for Respondent(s):4. Civil Application No. 8740/06 MS ROOPAL R. PATEL for Applicant(s):1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 30/08/2006 ORAL JUDGMENT 1. In this group of petitions, since common SCA/12240/2006 4/45 JUDGMENT questions of law arises, despite minor factual differences, these petitions have been heard together and are being disposed of by this common order. 2. At the outset, it may be clarified that this order does not dispose of Special Civil Application No.1969/2006, Civil Application No.2713/2006 and Civil Application No.7753/2006, since certain issues which are not common in the rest of the petitions need to be adverted to before final order can be passed. The said petition therefore, shall be notified for final hearing on 20-9-2006 along with Civil Applications. 3. The litigation arises in the following factual background. 4. Gujarat State Unaided B.Ed/B.P.Ed college Management Association had filed Special Civil Application No.1969/2006 before this Court challenging inter-alia a communication/decision dated 22-12-2005 of the respondent no.1- Committee Justice R.J. Shah Fee and Admission SCA/12240/2006 5/45 JUDGMENT Committee (here-in-after referred to as “the Committee”). By the said decision, respondent no.1-Committee was pleased to declare that the petitioner-Association despite clear cut directions not to enroll students whose names appeared in the merit list of Association, continued to ignore the Committee's directions. Committee also noted that further advertisements were released by the Committee indicating that students should not join the institution. The Committee had concluded that Association had failed to establish genuineness of the Common Entrance Test. In the result, the Committee declared that the test conducted by the Association on 12-6-2005 is not genuine and that therefore, no further procedure shall be made in furtherance of the said merit list. The Committee also decided to inform the State Government separately regarding the criminal investigation and prosecution against the Association and its members regarding mala fide action on their part. 4.1 Learned Single Judge of this Court while admitting the said petition on 28-3-2006, SCA/12240/2006 6/45 JUDGMENT made certain observations and gave certain directions. Learned Judge was prima facie of the opinion that the Committee has not approved the action of preparation of the merit list on the basis of so called Entrance Test. Learned Judge was also of the opinion that such test was required to be conducted under the supervision of the Committee. The members of the petitioner-Association despite full knowledge, in the opinion of the Committee, committed large number of manipulations and only made a show of having conducted examination. The admissions were granted to the students leading them to believe that the Common Entrance Test is lawfully held. Learned Judge found that there was no material to establish that the students were informed about the conducting of the examination under the supervision of the Committee. Learned Judge also came to the prima facie conclusion that concerned students bona fide took admissions and College management collected fees for the same. On the other hand, University has not granted enrollment to such students due to the decision of respondent no.1- Committee. It was observed that though the SCA/12240/2006 7/45 JUDGMENT Committee has intimated to the State authorities illegalities committed while granting admission, the State authorities have not taken any action against the college management either of de- recognizing the institution or other-wise. It was observed that if the students are made to believe that Common Entrance Test is lawfully held and are duped for extracting the fees by giving admission, same prima facie results into playing fraud with the career of the students, same also amounts to offence of cheating. In the background of these observations, Learned Single Judge gave following directions : “4. In view of the above, I am inclined to pass the following order: (a) RULE (b) Respondents No3, 4, and 5 shall provisionally grant enrollment to the students concerned and would also allow them to appear at the examination subject to the final order which may be passed by this Court in this petition and on condition that the concerned college which is the Member of petitioner Association deposits 50% of the amount already collected from the students concerned, as fees and other expenses, with this Court. After the amount is deposited and the receipt is produced, the University will grant provisional enrollment to the students concerned of the concerned College. (c) It is further directed that Respondent No.2 Commissioner of Higher Education shall examine the matter for initiating the proceedings for de- recognition of the concerned college for granting admission to the students on the basis of so-called SCA/12240/2006 8/45 JUDGMENT CET which is not approved by the Respondent No.1 Committee and if ultimately it is found that there is a case for de-recognition of the Institution after giving opportunity of hearing to the concerned College, appropriate action in accordance with law for de-recognition or otherwise shall be taken. (d) The Commissioner of Higher Education, Respondent No.2 herein shall also hold an inquiry for examining as to whether any cheating has taken place with the students of the college concerned and whether any fraud is played by the Management of the College concerned with the students who are admitted in B.Ed., course on the basis of so-called CET. The aforesaid inquiry shall be completed within a period of two months from today and if it is ultimately prima facie found that the offence of cheating or any other offences are committed by the person concerned in-charge of the Management of the College concerned, the criminal prosecution(s) shall also be lodged against the concerned person immediately, but not later than a period of one month thereafter. It is made clear that in the event any aforesaid action is taken by the Commissioner of Higher Education, either of holding inquiry or of filing criminal prosecution or police complaint, as the case may be, the rights and contentions of the person concerned/accused, as may be permissible in law, shall remain open. (e) The report of the compliance of the earlier directions shall be submitted within a period of three months from today.” 5. Pursuant to the said order passed by Learned Single Judge, the authority including the State Government had taken certain actions against Educational Institutions which have given rise to further litigation in the form of filing of the above mentioned petitions. 6. In the group of petitions being Special Civil SCA/12240/2006 9/45 JUDGMENT Application Nos. 12240/2006 to 12244/2006, the petitioners have challenged a decision dated 23- 6-2006 of the State Government by which the State Government conveyed to the Vice Chancellor of the Bhavnagar University about its decision to cancel the NOC of the concerned institutions who were the petitioners before this Court. 6.1 The communication inter-alia states that the Common Entrance Test was conducted on 12-6-2005 by the Association. Such test was conducted without the supervision of the Committee which has been declared illegal. Despite wide publicity in newspapers, admissions were granted to the students. It therefore, prima facie appears that the institutions knowing fully about the illegality of the procedure have granted admissions and collected fees from the students. The State Government has therefore, decided to cancel NOC granted in favour of such institutions and National Council for Teachers' Education, Bhopal, (NCTE for short) is also being intimated about the same for cancellation of recognition. SCA/12240/2006 10/45 JUDGMENT 6.2 It is the case of the petitioners that action taken by the Government is wholly unauthorised, impermissible under the law and in violation of principles of natural justice. It is contended that pursuant to said communication, respondents were not allotting the students to the educational institution namely B.Ed. College run by the petitioners. It is contended that the State Government has not passed any order cancelling NOC. 6.3 In the said group of petitions though no affidavit in reply has been filed by the State, on behalf of the Committee, a detailed reply dated 26-7-2006 came to be filed. 6.4 This Court on 28-6-2006 issued notice in the said group of petitions. Eventually, by a common order dated 28-7-2006 while admitting the said group of petitions and certain other similar petitions, this Court gave short reasons for consideration of question of interim relief and passed the following order : “In Special Civil Application No.1969/06 learned Single Judge of this Court on 28/3/2006 found prima-facie that the petitioners had indulged SCA/12240/2006 11/45 JUDGMENT into irregularities in conduct of common entrance test for granting admissions to students in the B.Ed colleges. The learned Judge, therefore, while admitting the petition, by way of interim direction protected the interest of the students who were already admitted and provided that they shall be granted provisional enrollment. Simultaneously, the learned Judge required the Commissioner of Higher Education to examine the matter of initiating the proceedings for de-recognition of the concerned college for having granted admissions to the students on the basis of the so called C.E.T which was not approved by the R.J.Shah Committee (committee for short). It was provided that if ultimately it is found that there is a case of de-recognition of the institution, after giving opportunity of being heard to the concerned college, appropriate action in accordance with law for de-recognition or otherwise shall be taken. 4.1. Pursuant to this direction, the Government has taken action which has given rise to this group of petitions. 4.2. Since in material aspects facts are similar in all petitions if one adverts to the facts as stated in Special Civil Application No.12240/06, it can be seen that a show cause notice came to be issued to the petitioner on 13th June, 2006 calling upon the petitioner to respond personally on 20th June, 2006. It is stated in the show cause notice that for having committed serious irregularities action is proposed to be taken. Pursuant to the said show cause notice the representatives of the petitioner remained present and participated in the hearing. An order came to be passed on 23rd June, 2006 stating that steps were taken by the petitioner for enrollment of students though knowing through newspaper reports that tests were not regular. The Director of Higher Education, therefore, stated in his order that the Government has decided to cancel the NOC pursuant to which the affiliation given by the SCA/12240/2006 12/45 JUDGMENT University also is liable to be cancelled and recognition is also to be cancelled by NCTE, Bhopal for which a communication is also sent. 4.3. It is true that prima-faice this Court has found some justification in the allegations against the petitioners for having committed irregularities in conduct of C.E.T and granting admissions to the students despite warning by the committee. However, the power of cancellation of recognition lies with NCTE. The Director of Higher Education or the Government has not filed affidavit pointing out that either the Government has cancelled the NOC or that the University has cancelled the affiliation or that the NCTE has cancelled the recognition. No provision has been pointed out to show that there is any power for suspension of either the recognition or affiliation. It is also doubtful whether once NOC is granted pursuant to the recognition granted by NCTE, whether the Government can recall the same. The primacy of NCTE in recognising such institutions has been recognised by the Hon'ble Supreme Court in the case of State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors. reported in 2006 AIR SCW 2048. 4.4. It may also be noted that though this Court passed the said order on 28th March, 2006, the show cause notice was issued by the Government only on 13th June, 2006 by which time substantially process of granting admission to the new academic term had been completed and large number of students were already admitted by the institutions for the current academic term. Eventually, the order was passed on 23rd June, 2006 by which time some more students were admitted. 5. Considering all these aspects of the matter, I find that it would not be possible to withhold granting of admissions to the remaining number of students to these colleges atleast for current academic term. Any other view would amount to suspending the SCA/12240/2006 13/45 JUDGMENT recognition/affiliation/NOC which admittedly in the present case has not been done. The Government has already corresponded with NCTE requesting for cancellation of recognition. So far no steps appear to have been taken. 6. Under the circumstances the respondents are directed to allot students provisionally in the B.Ed college of the petitioners to the extent of deficiencies in the current academic year. The institutions shall grant admissions to such students provisionally making it clear that the same is subject to further order that may be passed by this Court. 7. I cannot close this order without observing that in such cases NCTE has to be vigilant and take appropriate steps expeditiously. One wonders whether one single body has the wherewithal or machinery to oversee large number of institutions all over the country. This and other connected questions shall have to be borne out only at the stage of final hearing. 8. Needless to say this Court has not expressed any opinion on the question of cancellation of recognition of the petitioners by NCTE and pendency of the petitions will not be construed as any fetter in exercise of powers if found necessary independently.” 7. Special Civil Application Nos. 12866/2006, 12867/2006, 12869/2006 to 12872/2006 have been filed by the petitioners challenging the orders dated 20-6-2006 and 23-6-2006 passed by the Commissioner of Higher Education. By the impugned orders and particularly by impugned communication dated 23-6-2006, the Director of SCA/12240/2006 14/45 JUDGMENT Higher Education conveyed to the Sardar Patel University, Vallabh Vidhyanagar that the admissions granted by the petitioners pursuant to the Entrance Test conducted on 12-6-2005 were illegal. Such admissions were granted despite full knowledge that the Entrance Test is not valid. For the said irregularities steps will be taken. In the meantime the State Authority has decided to cancel the NOC of the institutions and also conveyed to the NCTE to cancel recognition of such institutions. The University therefore, should not allot the students to such institution for the academic year 2006-2007. 7.1 The stand of the petitioners herein also is similar to the earlier group of petitions namely that the impugned communications are illegal and unlawful. The same are passed without authority of law and are in breach of principles of natural justice. That communication dated 23-6-2006 is not even endorsed to the petitioners and in any case it is not open for the State Government to suspend or cancel the recognition of the petitioners and to refuse to allot the students to the extent of SCA/12240/2006 15/45 JUDGMENT intake capacity 7.2 In the said group of petitions, affidavit in reply dated 18-7-2006 came to be filed on behalf of the Committee. 7.3 The stand of the State Government in the present case as was in the previous group of petitions is that the concerned Educational Institutions are involved in large number of irregularities; that they have granted admission to the students despite a warning from the Committee that Common Entrance Test is not valid. There were certain other allegations also against the said institutions which require taking of steps against them. It was submitted that NCTE, Bhopal is also approached for the cancellation of recognition of the concerned colleges. 7.4 On 5-7-2006, this Court had issued notice in the said group of petitions. Ultimately while admitting the petitions on 28- 7-2006, this group of petitions were also made a part of the interim directions which have been SCA/12240/2006 16/45 JUDGMENT noted here-in-above. 8. In Special Civil Application No. 13025/2006, the petitioners have challenged similar communication dated 20-6-2006 and 23-6-2006 on similar lines. The said petition is also covered under the interim order dated 28-7-2006. 9. In petitions being Special Civil Application No.13888/2006 and 13889/2006, the petitioners have challenged the decision of the respondents in excluding the petitioners' colleges from the purview of the Central Admission System in the PTC Course. Affidavit in reply has been filed on behalf of the State Government in these petitions contending inter-alia that there were large scale complaints against the management of the petitioners-institutions. The students have complained and made allegations about the irregularities and manipulations being committed by the management. Such allegations include non payment of scholarship, taking forcibly signatures of the students in the receipt books, charging of excess amounts towards examination fees and such other malpractices being committed SCA/12240/2006 17/45 JUDGMENT by the Trustees. It was on account of these allegations that it was found inappropriate to allot students to the petitioners for the current academic year. This Court had issued notice on 19-7-2006 and following the interim order passed in similar group of petitions on 1- 8-2006, this Court by way of interim directions, directed the respondents to allot sufficient number of students to the petitioners for its PTC college as per rules. It was provided that such allotments shall be provisional and subject to outcome of the petitions. It was further provided that the petitioners while granting admission to the students shall specify that the admissions are purely provisional and will be subject to further orders that may be passed in these petitions. 9.1 In these petitions also, it is contended on behalf of the petitioners that the respondents cannot act on unverified allegations and in any case, the State Government has no authority to suspend the allotment of the student of the colleges run by the petitioners as long as its recognition by the NCTE is in SCA/12240/2006 18/45 JUDGMENT force. 10.In Special Civil Application Nos. 12209/2006 and 12210/2006, the petitioners had challenged communications dated 20-6-2006 and 23-6-2006 by virtue of which the Commissioner of Higher Education had conveyed to the University that on account of involvement of the petitioners in granting admissions to unauthorised students pursuant to a so called Entrance Test, the colleges concerned may not be allotted students for the current academic year. These petitions have been covered by the interim order dated 28- 7-2006 passed by this Court. 11.In Special Civil Application No.13826/2006 and 13833/2006, the petitioners have challenged excluding the petitioner college from the procedure of allotment of students for PTC course for the academic year 2006-2007 without de-recognition by NCTE. 11.1 The stand of the respondents in the said petition was that the petitioners were facing serious allegations of malpractice and SCA/12240/2006 19/45 JUDGMENT that therefore, it was not found appropriate to allot students for admission to the colleges. This Court had by way of order dated 1-8-2006, granted interim protection to the petitioners and gave direction to allot sufficient number of students. This Court made following observations in the order : “10. Considering all these aspects of the matter, I find that the impugned action of the Government is required to be stayed. Permitting the respondents not to allot students would amount to temporary or permanent suspension of recognition of the college. 11. It may be noted that there are allegations though so far not yet established by bi-parte hearing of certain irregularities having been committed by the management. Such allegations need to be examined promptly, an appropriate action in accordance with law should be taken by the appropriate authority. Learned AGP Shri Gori stated that the Government is in the process of bringing these aspects to the notice of NCTE. If so done, it is expected that the NCTE shall initiate appropriate action promptly. 12. In the result,