L.P.A. No.145 of 2007 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.145 of 2007 Date of decision: October 4 , 2008. Shri Vaishno Devi Shiksha Samity & Ors. ...Appellant(s) v. State of Haryana & Ors. ...Respondent(s) CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri Rajiv Atma Ram, Senior Advocate with Ms. Sunita Singh and Shri G.C. Gupta, Advocates, for the Appellant(s). Shri Rameshwar Malik, Additional Advocate General, Haryana for respondents No.1 and 4. Dr. Balram Gupta, Senior Advocate, with Shri Vikas Hooda, Advocate for respondents No.2 & 3. Shri Vinod S. Bhardwaj, Advocate for NCTE. ORDER Surya Kant, J. - This order shall dispose of Letters Patent Appeal Nos.145, 146, 147 and 148 of 2007 and Civil Writ Petitions No.17255, 18039 and 18063 of 2007, as common questions of law and facts are involved in these cases. While the Colleges are in appeal, the affected students have filed the connected writ petitions. For brevity, the facts are being extracted from LPA No.145 of 2007, arising out of CWP No.20656 of 2006, wherein the L.P.A. No.145 of 2007 -: 2 :- challenge by the four appellant-institutes to an order dated 20.12.2006 passed by the State Admission & Fee Committee for Technical Education, Haryana (in short SAFC) has been turned down by a learned Single Judge of this Court vide the impugned judgment dated 12.7.2007. [2]. The appellant-managements have set-up colleges to conduct B.Ed course in the State of Haryana. The National Council for Teachers Education (in short NCTE) is the statutorily prescribed apex body for teachers education under the National Council for Teachers Education Act, 1993 (in short the 1993 Act). To set up a B.Ed college, necessary approval of the NCTE is required and once the same is accorded, the State Govt. or the Affiliating University cannot refuse 'no objection certificate' or affiliation to the college, as the case may be, as per the law laid down by the Supreme Court in the case of State of Maharashtra v. Sant Dhyaneshwar Shikshan Shastra Mahavidalaya & Ors., JT 2006(4) SC 201. [3]. The NCTE vide its order dated 2.12.2006 (Annexure P-1) granted recognition to the appellants' colleges for the B.Ed course “subject to the condition of appointment of qualified staff through duly constituted selection committee as per the norms of NCTE/State Govt./Affiliating University/Body given effect before the commencement of the course etc.”. The recognition was further subject to the fulfillment of the conditions like maintaining the required strength of the teaching staff as per the NCTE norms; (ii) adherence to the regulations and guidelines framed by the NCTE; (iii) conversion of endowment fund into a joint account in the form of FDR; (iv) creation of reserve fund; (v) submission of self-appraisal report to the Regional Committee; (vi) up-dating of website of the institute; (vi) if operating from a rented premises, to shift to the permanent building, etc. L.P.A. No.145 of 2007 -: 3 :- [4]. The appellant colleges thereafter applied to the Maharishi Dayanand University (in short MDU), Rohtak for the affiliation. The MDU vide an order dated 7.12.2006 (Annexure P2) accorded 'provisional affiliation' to the appellants subject to the conditions that “the institute shall make appointments of teaching faculty, i.e., Principal and Lecturers in accordance with prescribed qualifications, norms and procedure of appointment as notified by the University within a period of three months, which shall be verified by the University, failing which the registration of the students of the defaulting college(s) shall not be made/allowed and the college shall also not be allowed the continuation in conditional provisional affiliation for the next session”. It was further stipulated that “the teaching and other staff shall be appointed through properly constituted selection committee…” and that “the faculty shall be appointed as per the NCTE norms as per the pay scales prescribed by it from time to time” etc. [5]. It may be noticed here that for admission to the B.Ed course for the session 2006-07, an entrance test was conducted by the Kurukshetra University, Kuruksehtra (in short KUK). It appears that there were 16 more newly established B.Ed colleges, other than that of the appellants, which were also granted provisional affiliation by the MDU or the KUK (13 by MDU and 3 by KUK) to admit students for the session 2006-07. On the recommendations of the SAFC, the State Govt. vide memo dated 28.11.2006 (Annexure P-4) asked the KUK to conduct centralized counselling for all the 16 colleges and that “the counselling for the vacant seats should be completed by 15th December in all respects”. On the advice of the SAFC, the State Govt. issued yet another circular dated 12.12.2006 L.P.A. No.145 of 2007 -: 4 :- (Annexure P-5) stating that the vacant seats reserved for Scheduled Caste category candidates in private self-financed B.Ed colleges could be filled up “within 12 days from the issuance of this letter”. Hence, admissions to the B.Ed course in self-financed private B.Ed colleges, in a way, continued till 24.12.2006. In the meantime, as noticed earlier, the appellant-colleges (7 in total) were also granted recognition by the NCTE as well as the 'provisional affiliation' by the MDU. These colleges also wanted admissions to be made against the allocated seats for the academic session 2006-07 through the ongoing counselling being conducted by the Kurukshetra University. The State and the University authorities having not acceded to their request, the first appellant filed CWP No.19690 of 2006, which was disposed of by a Division Bench of this Court vide order dated 12.12.2006 and after hearing all concerned, with liberty to the petitioners to approach the SAFC for Technical Education, set up by the State Govt. and the said Committee, headed by a retired Judge of this Court, was requested “to take into consideration the representation/application”. [6]. Pursuant thereto, the SAFC passed a hard-hitting order dated 20.12.2006 whereby not only the representations of the appellant-colleges were rejected, the MDU was also put into a dock for its act which “smacks of total disregard of norms and prudence on the part of the University authorities in granting provisional affiliation to these colleges”. The SAFC accordingly directed the MDU to withdraw the provisional affiliation granted to the appellants and thereafter to follow proper procedure for grant of regular affiliation. A copy of the order was also sent to His Excellency, the Governor of Haryana and the Chancellor of the University, for his kind perusal and information and to the Chief Minister of Haryana for “initiating L.P.A. No.145 of 2007 -: 5 :- appropriate action against the defaulters”. [7]. The SAFC felt that notwithstanding the glaring deficiencies found by the Inspecting Team of the University on 7.12.2006, such as inadequate premises and other infrastructure, non-availability of qualified staff, employment of ineligible staff, deficient library and lab set-up, etc., the colleges were still granted provisional affiliation in a hurried manner without following the due procedure, with a view to enable them to admit students for the session 2006-07 on the basis of ongoing counselling. [8]. Aggrieved at the order dated 20.12.2006 (Annexure P-10) passed by the SAFC, the appellants approached this Court through a Civil Writ Petition in which, while issuing notice, the motion Bench passed the following interim order on 23.12.2006:- “Notice of motion for 11.01.2007. In the meanwhile operation of the order dated 20th December, 2006 (Annexure P/10) shall remain stayed and the petitioners shall be provisionally permitted to commence and conclude the admission procedure for the vacant seats at their own risk and responsibility. The petitioners shall clearly disclose to the students who are admitted that the admission is subject to the final decision of this petition. A copy of this order be given dasti under the signatures of the Court Secretary of this Court.” [9]. Undeniably, about 800 students were provisionally admitted by the appellant colleges subject to the final decision of their writ petitions. The Single Judge, however, dismissed the writ petitions vide the impugned judgment dated 12.7.2007 after holding, inter-alia, that:- (i) while making the admissions, the merit in the Common Entrance Examination has not L.P.A. No.145 of 2007 -: 6 :- been followed; (ii) the admissions were to be finalized before 15.12.2006 whereas the appellants admitted the students even on 26.12.2006 and in some cases, on 29.12.2006 also; (iii) none of the institutes has conducted classes for the students for uninterrupted 180 teaching days; (iv) the recognition granted by NCTE being conditional, no admission could have been made without an unconditional recognition and in contravention of the NCTE Regulations of 2005. [10]. It requires mention here that even before the dismissal of the writ petitions by the learned Single Judge, the students admitted by the appellants had completed the duration of the B.Ed. Course and were due to appear in the final examination to be conducted by the MDU. [11]. On 16.7.2007, the Letters Patent Bench while issuing notice, directed that, “without prejudice to the rights and contentions of the parties, the students are permitted to take the examination”. [12]. Thereafter, on 1.2.2008, the following interim directions were issued:- “Dr. Balram Gupta, Advocate, appearing on behalf of respondents No.2 and 3 prays for some time to go through the voluminous records and seeks time to file reply. Reply, if any, be filed in the Registry within two weeks from today with an advance copy to the learned counsel for the appellant. Rejoinder, if any, be filed within two weeks thereafter. The result of the candidates in the sealed cover be brought in the Court on the next date of hearing.” [13]. On 3.3.2008, the LPA Bench passed yet another order in the following terms:- “The result of the candidates has been brought in a sealed L.P.A. No.145 of 2007 -: 7 :- cover. Let it be opened and be declared subject to the decision of the LPA. The result produced is given back to Dr. Balram Gupta.” [14]. It is indeed not in dispute that the University has already declared the result provisionally and the pass percentage of the students of appellant-institutes ranges between 88% to 95% or above. [15]. Learned counsel for the parties are also ad idem that soon after the disputed academic session 2006-07, all the seven appellant-colleges have been granted regular affiliation by the MDU as the deficiencies noticed earlier by its Inspecting Team stood rectified. The NCTE has already granted recognition to these colleges. The only issue which survives now is as to whether or not the provisional declaration of the result of the students admitted by the appellant-colleges is liable to be regularized. [16]. We have heard learned Counsel for the parties at some length and gone through the record. The additional documents placed on record by the appellants to meet out the alleged deficiencies noted by the Inspecting Team of the University and relied upon by the learned Single Judge, have also been taken into consideration, besides the documents produced by the University Counsel on our asking. [17]. It was argued on behalf of the appellants that the action of the SAFC as also of the MDU in resisting the regularization of the result already declared previously is wholly discriminatory and founded upon irrational considerations. According to the learned counsel, there were 16 other colleges which were provisionally affiliated with the same University, for whom the SAFC extended the last date for admissions till 15.12.2006, followed by yet another extension to fill-up the reserve category seats till L.P.A. No.145 of 2007 -: 8 :- 24.12.2006 (Ref: Annexures P-4 and P-5). On the other hand, the appellant- institutes were permitted by this Court to admit students at their own risk on 23.12.2006 and most of the admissions were made on 24.12.2006 itself. It is urged that irrespective of the reserve or non-reserve seats, once the students are allowed to be admitted in other colleges till 24.12.2006 and no objection is raised against their eligibility for appearing in the final examination by the MDU, how can an altogether different yardstick be applied qua the students admitted by the appellants? It is then urged that even in those 16 colleges, where admissions were permitted to be made till 24.12.2006, 180 lectures could be completed only by holding classes on Sundays and other gazetted holidays. So was the procedure followed by the appellants who too made sure that each student attended 180 uninterrupted lectures. As far as the deficiencies pointed out by the Inspecting Team of the University before granting provisional affiliation to the appellants is concerned, learned counsel pointed out that except in one college, the Inspecting Team has categorically recorded that the teaching and non-teaching staff appointed by the appellants were qualified and had been offered appointments. Learned counsel further pointed out that the NCTE and the MDU have prescribed varying qualifications and not even a single teacher was appointed by the appellants who did not possess the academic qualifications as prescribed by the NCTE. The only procedural lapse committed by the appellants was that no University nominee was associated as a member of the Selection Committee while recruiting the teaching faculty through public advertisements. Besides, the said non- inclusion is of no material consequence, urged the counsel, as the irregularity is stated to have been rectified within the three months period L.P.A. No.145 of 2007 -: 9 :- granted by University. Learned counsel also urged that the high pass- percentage scored by the appellants' students in the annual exam, is a proof by itself of the tall teaching standards maintained by them. [18]. Learned Senior Counsel for both the Universities, on the other hand urged that neither the teaching staff was recruited as per the qualifications prescribed by the University nor its nominees were associated before making any such appointments and since the University did not authorize these colleges to make admissions unless the teaching faculty was appointed as per the MDU norms, the admissions, if any, made by the appellants at their own risk, were a total fraud and could not be given the colour of legitimacy, solely on the basis of the performance of their students in the final examination. [19]. The National Council for Teachers Training Act, 1993 was enacted by the Parliament to provide for establishment of a National Council for Teachers Education (NCTE) with a view to achieve planned, uniform and coordinated development of the teachers' education throughout the country. Section 14 of the Act provides that every institution offering or intending to offer a course in teachers' training shall henceforth make an application to the Regional Committee concerned and if, after obtaining such other particulars as it may consider necessary, the NCTE is satisfied that the applicant has “adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfills such other conditions required for proper functioning of the course for teachers' training”, shall pass an order granting recognition to such institution. Keeping in view the legislative supremacy of the Parliament vis-a-vis the State Legislatures in respect of the matters falling under the Union List or L.P.A. No.145 of 2007 -: 10 :- the Concurrent List, in terms of the provisions contained in Part XI of the Constitution, the Supreme Court in the State of Maharashtra's case (supra) has held that once recognition is granted by the NCTE under Section 14(6) of the Act, every University or the Examining Body is obliged to grant affiliation to such institution and contrary provisions, if any, in the University Act or in any other legislature to that extent shall not apply to such cases. The decision mandates the grant of NOC or affiliation by the State Govt. or a University, as the case may be, to an institution which has been recognized by the Central Authority, namely, the NCTE under the Act. [20]. The NCTE granted recognition to the appellants on 2.12.2006 subject to the condition of their appointing qualified staff through duly constituted Selection Committee and as per the norms of NCTE/State Govt./Affiliating University. The Affiliating University, namely, the MDU conducted the inspection of each college and after pointing out certain shortcomings accorded 'provisional' affiliation to the appellants on 7.12.2006 with a clear stipulation that the teaching faculty was required to be recruited by these colleges within a period of three months which was to be verified by the University failing which the registration of the students of defaulting colleges shall not be made/allowed (emphasis applied). In other words, while granting provisional affiliation to the appellants on 7.12.2006, they were also permitted to admit students though the teaching faculty was required to be recruited before 6.3.2007 to the satisfaction of the University Inspection Team. [21]. On our asking, learned Counsel for the Universities has placed on record attested copies of the orders passed by the NCTE granting recognition to 16 other colleges on different dates in September/October/ L.P.A. No.145 of 2007 -: 11 :- November, 2006 as well as the orders passed by the University granting 'provisional' affiliation to those 16 colleges. Suffice it to say that the orders passed by the NCTE recognizing those 16 colleges are identical to the order dated 2.12.2006 (Annexure P-1) whereby the appellant-colleges have been granted recognition. [22]. We may also usefully quote the following conditions imposed by the same University while granting provisional affiliation to 16 other colleges in respect of whom there is no controversy:- “this conditional provisional affiliation has been granted with the stipulation that the concerned college shall make appointments of teaching faculty, i.e., Principal and Lecturers in accordance with prescribed qualifications/norms and procedures of appointment as notified by the University (copy enclosed) within a period of 3 months, which shall be verified by the University, failing which the registration of the students of the defaulting college(s) shall not be made/allowed and the college shall also not be allowed the continuation in conditional provisional affiliation in the next session”. The same condition mutatis mutandis has been applied to the appellant-colleges. However, the 16 other colleges were permitted firstly to admit the students till 15.12.2006 (Annexure P-4), followed by an extension till 24.12.2006 (Annexure P-5). The students from these colleges were permitted to appear in the annual examination and their results have also been declared. Then why an altogether different treatment was meted out to the appellants? [23]. The MDU was apparently in a predicament. There was no visible distinction between 16 colleges on one hand and the seven appellant- colleges on the other. The University, therefore, gave its nod for admissions to the seven appellant-colleges as well, though it invited the wrath of the L.P.A. No.145 of 2007 -: 12 :- SAFC vide impugned order dated 20.12.2006 (Annexure P-10). [24]. Pertinently, the MDU in its counter affidavit not only defended the provisional affiliation accorded to the appellant-colleges, but also termed the decision of the SAFC step-motherly as is discernible from the following averments:- “As regards the advanced stage of Academic Sessions (2006- 07), it is respectfully submitted that the Committee did not adopt uniform standard. On one hand, the Committee allowed admissions to 16 colleges upto 15.12.2006 (Annexure P-4) which was subsequently extended upto 23/24.12.2006 (Annexure P-5), as regard vacant S.C. Category seats. On the other hand, regarding admissions to the petitioner colleges to which conditional provisional affiliation had been granted by the answering respondent on 07.12.2006, the Committee refused admissions on the plea of advanced stage of Academic Sessions whereas the Kurukshetra University Kurukshetra held B.Ed. Admissions counselling for 16 colleges on 8.12.2006 and 9.12.2006. It is no doubt true that the stage was rather advanced but the Committee could not possibly adopt different yardsticks in the matter of making admissions. The plea of advanced stage of Academic Sessions 2006-07 was equally applicable to the 16 colleges in which the admissions had been allowed upto 23/24.12.2006.” (Emphasis applied) [25]. However, contrary to its above reproduced plea, the MDU did a somersault and opposed the appellant's writ petition, may be under the fear of attracting some punitive action against its authorities as was directed by the SAFC vide its order dated 20.12.2006. [26]. Be that as it may, it emerges out that on the issues like non- completion of uninterrupted 180 working days, conditional provisional L.P.A. No.145 of 2007 -: 13 :- affiliation subject to the recruitment of the teaching faculty as per the University norms and/or granting three months time to the colleges to make such recruitment as well as the conditions imposed by the NCTE, the two sets of colleges, referred to above, were placed identically. Unfortunately, while the 16 other colleges were extended whole-hearted support, the appellants were denied the advantage of ongoing admission process for no distinguishable reasons. [27]. Keeping the above narrated factual scenario in view, we now advert to the reasons assigned by the learned Single Judge while refusing the seal of approval to the provisional admissions made by the appellants under the orders of this Court. The foremost reason appears to be the appellants’ failure to fulfill the conditions imposed by the NCTE and the Affiliating University while granting them 'conditional' recognition or 'provisional' affiliation, namely, non-recruitment of the teaching faculty as per the University norms or no recruitment at all. It appears that attention of the learned Single Judge was not drawn to the fact that these inspection reports date back to 7.12.2006, namely, before the grant of provisional affiliation by the MDU. As per these inspection reports also, only one college had not made appointment of the teaching faculty. To remove these deficiencies, the University itself granted 3 months time to the appellants and permitted them to admit the students though with a condition that in the event of any default, the registration of the students shall not be made/allowed to continue. The Inspecting Teams, notwithstanding the deficiencies, never commented that these colleges did not have the basic infrastructure for the purpose of provisional affiliation. It also appears debatable as to whether in view of sub-section (i) of Section 14 of the 1993 L.P.A. No.145 of 2007 -: 14 :- Act, when the NCTE is satisfied with the infrastructure and the facilities available in an institution, can the Affiliating University be also permitted to hold a parallel inquiry regarding standards of such infrastructural facilities. [28]. We now turn to the Curriculum Transaction and Requirement of Teaching Staff Regulations, 2005 framed by the NCTE, as according to the learned Single Judge, no admissions could be made by the appellants for the reason that in view of clause 4 of these Regulations, the colleges were required to provide at least 150 teaching days in a year, followed by internship in teaching for 30 days in a Secondary/Senior Secondary school and both these conditions not having been fulfilled, no admission could be made by the appellants irrespective of the recognition or affiliation by the NCTE/University. In this regard, the plea of discrimination set-forth by the appellants has also been turned down by the learned Single Judge after observing that the illegality cannot be perpetuated. [29]. Higher-educational standards are undoubtedly sacrosanct. Maintenance of ideal norms and academic standards of excellence are the need of the hour. The courts over-zealously enforce and maintain their purity and are invariably reluctant to relax these standards. [30]. Deeper probe into facts of the case in hand, however, reveals that harbingers of the academic values themselves have waylaid them. The State Govt., the State Education & Fee Committee and both the Universities conveniently overlooked and bye-passed those very NCTE Regulations in the case of 16 other colleges, whereas the same have been pressed into aid against the appellants. The appellant colleges have already charged hefty fees from the petitioner-students, the University and the NCTE have also charged their statutory fee for according 'recognition’ or 'affiliation', the L.P.A. No.145 of 2007 -: 15 :- deficiencies have been subsequently removed