IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 14707 of 2009 (O&M) Date of Decision: 21.1.2010 Sh. Laxmi Narayan Tayal Educational Society, Panipat --Petitioner Versus Kurukshetra University, Kurukshetra and another --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Rajiv Atma Ram, Sr. Advocate with Mr. Arjun Partap Atma Ram, Advocate for the petitioner. Mr. A.S. Virk, Advocate for the respondents. *** PERMOD KOHLI.J (ORAL) The petitioner, a registered society under the Societies Registeration Act is running a college under the name of LNT College of Education at 79th Mile Stone, G.T. Road, N.H.1, Haryana. This college was established for imparting B.Ed. Course. The society applied to the NCTE, the apex body competent to grant recognition for establishment of such an institution. Regional Council of NCTE after inspecting the infrastructural and other facilities of the college granted recognition vide its letter dated 27.11.2007 (Annexure P-2). The recognition was granted under section 14 (1) of the NCTE Act, 1993 on being satisfied regarding the existence and availability of infrastructure and other facilities as is evident from the following observations:- “ And whereas, on scrutiny of the application submitted by the institution, the documents attached therewith the affidavit and the input received from the visiting team in the form of report and videography, the Committee is satisfied that the institution society fulfils the requirements CWP. No. 14707 of 2009 (O&M) -2- under the provisions of NCTE Act, Rules and relevant Regulations including the Norms and Standards for the Secondary Teacher Education programme such as instructional facilities, infrastructural facilities, Library, accommodation, financial resources, Laboratory etc. for running the programme and has selected/appointed duly qualified teaching staff as per NCTE Norms.” Petitioner-institution was permitted to admit 100 students per session. The petitioner further applied for enhancement of its intake capacity from 100 to 200 students. The request of the petitioner was acceded to by the NCTE and vide its communication dated 27.2.2008 additional intake of 100 B.Ed seats was approved. On being granted recognition by the NCTE the petitioner applied for affiliation to the Kurukshetra University, Kurukshetra for increase to 200 intake capacity for the session 2008-09. The university vide its letter dated 3.12.2008 approved provisional affiliation for 200 intake capacity for the session 2008-09. It is relevant to note that in the aforesaid letter petitioner was conveyed that the admission to the course shall be governed strictly as per instructions/guidelines issued by the State Govt/University/Coordinator of State Level Common B.Ed. Entrance Test. The petitioner was informed by the university that a special inspection team of the university is visiting the college on 23.3.2009. A team of the university visited the college. On the basis of the report of inspection team petitioner was issued a show cause notice dated 16.6.2009 communicating that inspection team has pointed out that the building of the college is not made of lintel. The B.Ed class students are bound to sit in a shed and it CWP. No. 14707 of 2009 (O&M) -3- looks like a factory shed/godown. Then referring to Clause 8 (10) of the NCTE Regulations 2007 the petitioner was asked to show cause why the college be not debarred from participating in the admission process and to making admission to the B.Ed Course for the session 2009-10. Petitioner's reply was asked for within one week. In response to the aforesaid show cause notice the petitioner submitted its representation dated 6.7.2009 (Annexure P-6) mentioning therein that the college has all infrastructure and building facility duly approved by the university. There is no temporary structure. The roof is made by cemented sheets with forsealing which is in no way temporary structure. University was asked to re-inspect the college any time and request was made to allow admission for the session 2009-10. In response to the petitioner's aforementioned representation the Chairman of the college has been communicated that the college has been inspected twice by two different inspection committees/teams. Both the committees pointed out major deficiencies and made serious observations against the college and had not recommended the extension of provisional affiliation for the session 2009-10. Another inspection was declined. The college was advised to shift to its permanent building with prior approval of NCTE. In view of the passing of the aforesaid order the petitioner has filed this petition challenging the action of the respondent-university in denying it right to make admissions during the academic session 2009-10 with a further prayer for direction to the university to provide students to the petitioner during the current academic session. In the reply filed by the respondents, the contention raised is that the college does not have required infrastructure in accordance with the norms laid down by the NCTE and for this purpose reference is made to CWP. No. 14707 of 2009 (O&M) -4- Regulation 8 of 2007 Regulations framed by the NCTE. As regards the infrastructural deficiency is concerned, inspection committee's report is relied upon. The relevant observations are as under:- “ 4. The LNT College buildings are not made of lintel. The B.Ed. Class students are bound to sit under tin shed, which is not permissible. It looks like a factory shed/Godown.” In the replication filed contentions raised in the writ petition are reiterated. Additionally, it is stated that the petitioner is governed by the Regulations of 2005 which were applicable at the time of grant of recognition. While referring to the amended Regulation of 2007 it is stated that those regulations cannot be enforced to withdraw the recognition. In any case it is stated that no opportunity was granted to the petitioner to rectify deficiencies. It is also the stand of the petitioner that the university has no competence to dispute the infrastructural facilities duly approved by the NCTE. During the course of the arguments, Mr. A.S. Virk, learned counsel appearing for the university has laid emphasis on Regulation 8 (10) of the NCTE Regulations to contend that the petitioner do not possess the required infrastructural facilities, the roof being of temporary nature comprising of asbestos sheets nor does it confirm to the NCTE norms which has necessitated the withdrawal of the provisional affiliation earlier granted. While the university is pressing into service 2007 regulations, Mr. Rajiv Atma Ram, learned Senior Advocate appearing for the petitioner submits that these regulations have no applicability. According to him the 2007 regulations were formulated and notified on 27.11.2007, whereas the CWP. No. 14707 of 2009 (O&M) -5- petitioner had applied for recognition much prior to that, though, it was also granted letter of recognition on 27.11.2007. It is further contended that the inspection team of the NCTE visited the site when the 2005 regulations were in operation. Regulation 8 (8) of the 2005 Regulations, regarding the building infrastructure reads as under:- “ 8. At the time of inspection, the building of the institution shall be complete in the form of a permanent structure on the land possessed by the institution in terms of Regulation 8 (5), equipped with all necessary amenities and fulfilling all such requirements as prescribed in the norms and standards.” The amended Regulations of 2007, relating to the building read as under:- “10. At the time of inspection, the building of the institution shall be complete in the form of a permanent structure on the land possessed by the institution in terms of Regulation 8 (7), equipped with all necessary amenities and fulfilling all such requirements as prescribed in the norms and standards. The applicant institution shall produce the original completion certificate, approved building plan in proof of the completion of building and built up area and other documents to the Visiting Team for verification. No temporary structure/asbestos roofing shall be allowed.” From the above regulations, it appears that there is a marked distinction between the two sets of Regulations. Under 2005 regulations only a permanent building was required, whereas under the 2007 regulations asbestos and temporary roofing is prohibited. It is admitted case of the petitioner that the building in possession of the college is having asbestos roofing, though, with foreceiling etc. It is argued by Mr. Atma Ram that CWP. No. 14707 of 2009 (O&M) -6- this structure cannot be said to be a temporary structure and when the inspection was conducted, it was duly approved as it was permissible under the 2005 Regulations, referred to above. Another issue raised on behalf of the petitioner is that the university does not have competence and jurisdiction to dispute the infrastructure facilities duly approved by the NCTE. A similar issue came up for consideration before the Hon'ble Supreme Court in case of State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya reported as 2006(2) SCT 499. In the aforesaid judgement the question of inconsistency between NCTE, a central legislation and Maharashtra University Act, 1994, a State legislation came to be examined. While considering the issued, the Hon'ble Supreme Court has observed as under:- “ 48. Before parting with the matter, we may state that at one stage, the High Court has observed that “in so far as the university is concerned, considering the provisions of Section 15 of the NCTE Act, once permission has been granted under Section 14, the University is bound to grant affiliation in terms of the Act, Rules and Statutes. Section 83 requires the university to grant affiliation only after permission is granted under Section 82 of the Maharashtra University Act. To that extent the provisions of Section 82 and 83 are inconsistent with the provisions of NCTE Act and are null and void. 49. In our opinion, the observations that the provisions of Sections 82 and 83 of the Maharashtra University Act are “null and void” could not be said to be correct. To us, it appears that what the High Court wanted to convey was that the provisions of Sections 82 and 83 would not CWP. No. 14707 of 2009 (O&M) -7- apply to an institution covered by 1993 Act. As per the scheme of the Act, once recognition has been granted by NCTE under Section 14 (6) of the Act, every university (examining body) is obliged to grant affiliation to such institution and sections 82 and 83 of the university Act do not apply to such cases.” A Division Bench of this Court also examined a similar controversy in case of Nancy College of Education and another V. Punjabi University, Patiala and others reported as 2007 (6) SLR 62. In the aforesaid case also Punjabi University, Patiala cancelled the affiliation granted to the petitioner on account of certain deficiencies. Hon'ble Division Bench noted following issue for consideration:- “ The question for consideration is whether and to what extent the university has a role in examining the availability of infrastructure of a Teachers Training College and where there is a conflict in the opinion formed, whether the university can withdraw affiliation rendering recognition granted by the NCTE to be redundant.” With a view to answer the aforementioned questions the Hon'ble Division Bench referring to the judgement in case of State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra) observed as under:- “ In view of law settled by the Hon'ble Supreme Court in Sant Dnyaneshwar (supra), following which a Division Bench of this Court rendered its judgement in Mange Ram (supra), we are of the view that the issue is concluded in favour of the petitioners and it has to be held that grant of affiliation automatically follows on grant of recognition by the NCTE.” CWP. No. 14707 of 2009 (O&M) -8- Hon'ble Division Bench further examined the scope of two legislations and held as under:- “ The scheme of the NCTE Act as analysed in the judgement of the Hon'ble Supreme Court is that the said Act having been enacted with reference to Entry 66 of List I of Seventh Schedule of the Constitution, any State Act, including University Act will not override the statutory provisions of a Central Act. Since under the scheme of the Central Act, the NCTE has been given statutory power of conducting inspection with reference to availability of infrastructure and to determine whether an educational institution was entitled to recognition, any contrary view of any authority under the State Act cannot override the power of the NCTE and recognition so granted cannot be rendered redundant. The clear stand has been taken by the NCTE that the petitioner college fulfilled all the norms for recognition. In such circumstances, affiliation had to follow as a matter of course and cancellation of affiliation so long as recognition was operative, was not permissible. The authority of the examining body is to assess the students in examination and to conduct examination and to that extent university may have total autonomy in accordance with law but the university could not encroach upon the power of NCTE on the issue of grant and continuance of recognition. By cancelling affiliation, recognition could not be rendered redundant.” The university was accordingly advised to send its report to the NCTE for consideration and the action of the university for cancellation of the affiliation was set aside. Dictum of the aforesaid judgement has application to the facts of the present case on all fours. CWP. No. 14707 of 2009 (O&M) -9- Thus, at the first place the action of the university to refuse extension of provisional affiliation on ground of breach of regulations framed by the NCTE is not justified. The NCTE has already accorded its approval to the infrastructure available with the college as is evident from the observations made in the recognition letter itself. If, in the opinion of the university there was any deficiency, it was under the obligation to approach the NCTE reporting alleged breach of the regulations. It had no jurisdictional competence to initiate a penal action for breach of any rules or regulations for which there is a separate statutory authority to deal with. Secondly, the university proceeded to issue show cause notice for cancellation of the affiliation and even declined the request of the petitioner for re-inspection and simultaneously did not extend the provisional affiliation for the alleged breach even without providing an opportunity to the petitioner to make up the deficiencies and rectify its error. It is also pertinent to note that till date there is no action or even a notice from the NCTE in regard to the deficiencies in the building. The college has been operating since 2008-09 and 200 students are already studying. The college has created huge infrastructure, though, there is always a scope for improvement. Mr. Atma Ram's contention that the asbestos roof should be taken as the permanent structure is, however, not to be accepted. The asbestos roofing in any case should not be permitted notwithstanding whether it is a part of the permanent structure or not. The college is imparting education to students and charging fee. Students should not be treated like live stocks and should be provided a conducive, hygienic graceful accommodation for study and lodging. In any case the university before depriving the petitioner to continue to admit the students should have CWP. No. 14707 of 2009 (O&M) -10- at least provided one opportunity to remove the deficiencies; that has not been done. On being asked, Mr. Atma Ram, learned counsel appearing on behalf of the petitioner has undertaken that the petitioner is ready and willing to provide permanent lintel roof within the reasonable time. To close the college does not serve any purpose, neither it is in the interest of the university nor the college and particularly the students, who are studying or who may be admitted, if, college continues its operations. The petitioner is, thus, permitted to remove the deficiencies by the end of August, 2010 to confirm to the norms laid down by the NCTE in this regard. It is on account of the impugned order that the petitioner was prevented from participating in the counselling and no students were allocated to it for the academic session 2009-10. In view of the declaration that the impugned order is illegal, university is directed to extend the affiliation for the academic session within one week. In the meantime, the petitioner is permitted to admit the students for the current academic session by adopting the following procedure:- (i) The petitioner will issue separate Public Notice notifying seats available with it for selection through the counselling. The notice shall be published in two English national newspapers and one vernacular (Hindi) having wide circulation on 23.1.2010 and 24.1.2010. Last date for receipt of applications shall be 27.1.2010. The counselling will be held from 28.1.2010 to 29.1.2010. List of the candidates who are found eligible for admission shall be submitted to the University on 30.1.2010. The admissions will be made on the basis of merit in the qualifying examinations. The minimum eligibility criterion as notified in the Prospectus issued by the university for the session 2009-10 shall be strictly ad-hered to and there shall be no relaxation of any kind in the minimum eligibility criterion. It is made clear that if subsequently at any state, it is found that students have been admitted in violation of the eligibility criterion, not only the admission of the students shall be liable to be cancelled and quashed, by the university but the petitioner-institution shall also be liable to pay a compensation of Rs. 50,000/- per student admitted in violation of the norms to the university. (ii) After 30.1.2010, no student irrespective of the availability of the seats in college shall be admitted. (iii) The petitioner-institution will make admissions on the basis of inter se merit of the applicants who may apply and seek admission pursuant to the Public Notice issued by the petitioner. The College will not charge any extra fee other than the one prescribed by the university/Govt. (iv) The fee shall be deposited by the candidates in accordance with the norms/procedure already prescribed by the respondent- university/Govt. (v) It will also be notified in the Public Notice that the students who will be granted admission will deposit the fee before or on 30.1.2010 in accordance with the norms/procedure prescribed by the respondent university/Govt. in this regard. (vi) The Kurukshetra University, Kurukshetra will nominate one representative for counselling to be conducted by the petitioner college. Such nomination shall be made before the date notified hereinabove for counselling/admission by the college. If the respondent university fails to nominate its representative or if the nominated representative fails to approach the college, the petitioner-college may proceed to hold counselling/admission in absence of such representative with prior intimation to the respondent-university in this regard. (vii) Petitioner-college after making admissions will provide all details and merit position of admitted students to the respondent university, within a period of one week from the date of such admissions along with proof of payment of fee and the respondent university shall have the right to conduct scrutiny in accordance with the norms/procedure laid down by it. (viii) The petitioner shall hold extra classes to complete 180 days requirement of the university, without charging any extra amount from the students and comply with the other norms for examination for the course. It shall be open to the university to conduct an inspection regarding the extra classes to be conducted by the petitioner-institution. The university may also issue appropriate directions in this regard. This petition is allowed in the above manner. A copy of this order be given under the signatures of Court Secretary. (PERMOD KOHLI) JUDGE 21.1.2010. lucky Whether to be reported to the Reporters? Yes.