- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5763 OF 2007 Karnataka Lingayat Education Society ...Petitioner v/s. 1. The State of Maharashtra and others ...Respondents ... Mr.Y.S.Jahagirdar i/b Mr.M.A.Chaudhari for the Petitioner. Mr.R.P.Behare, AGP for the Respondent No.1, 3 to 9. Ms.Deepa Chavan with Ms.Rohini Karol i/b Little & Co. for Respondent No.7. CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 11TH AUGUST, 2008 P.C.: 1. By this petition the Petitioners challenge the order dated 21st May, 2007 passed by the Respondent No.3. The Petitioners also seek a direction to the Respondents to permit the students of three colleges of the Petitioners to appear for the D.Ed. examination for the academic year 2006-07. - 2 - 2. The brief facts which are relevant are that the Petitioners applied to the National Council for Teacher’s Education, which was Respondent No.2 in this petition, for grant of recognition to start D.Ed. College in the month of December, 2005. That body pursuant to that application conducted inspection of three colleges in the month of November, 2006. According to the Petitioners, that body made an order conditionally recognising the three colleges in December, 2006. According to the Petitioners, that body unconditionally recognised the courses at the three colleges of the Petitioners by order in the month of January, 2007. Thereafter on 15-1-2007, according to the Petitioners, they made an application to Respondent No.3 seeking affiliation. The Petitioners in the meantime, admitted students to D.Ed. course in three colleges in January, 2007. In this background, the letter dated 21-5-2007 was addressed by the Respondent No.3 to the Petitioners. By that letter the Petitioners were informed that the Petitioners have been permitted by letters dated 6-1-2007 and 19-1-2007 by NCTE, Bhopal to start D.Ed. college at Jule, Solapur, Akkalkot and Ichalkaranji. It was stated that in that letter/order it is not mentioned as to from which year the permission has been granted. Reference was made to condition - 3 - No.4(f) of that recognition letter. It was stated that, therefore, though recognition was granted by NCTE before starting the college, it is necessary to take permission of the Government of Maharashtra. It was further stated that the Government of Maharashtra has taken a policy decision that those colleges who have been granted permission before 31-12-2006 by NCTE would be granted permission to admit students from the academic year 2006-07. It was clarified that as the permission to the Petitioners’ colleges has not been granted by the N.C.T.E. before 31-12-2006, students cannot be admitted for the academic year 2006-07, if any admissions are given by the Petitioners, they will be unauthorised admission. It was clarified that only after Condition No.4(f) in the recognition letter is satisfied, permission would be granted by the Government of Maharashtra to the Petitioners. This letter dated 21-5-2007 refers to Government letter dated 5-4-2007. By letter dated 5th April, 2007 the Petitioners were informed that on inspection it was found that they have admitted students for the academic year 2006-07 without getting permission from the State Government and the Respondent No.3, therefore, admissions granted by the Petitioners are not legal and therefore, the Petitioners should close down their colleges. - 4 - 3. Writ Petition No.3526 of 2007 was filed in this court challenging the letter dated 5th April, 2007 directing the Petitioners to close down their colleges, because they have unauthorisedly given admissions to the students for the academic year 2006-07. That petition was decided by order dated 3rd May, 2007 by the Division Bench of this court. That order reads as under: "According to the petitioners they have been granted permission by N.C.T.E. to open three educational institutions. One of the requirement is that the admission to the College can be made only after receiving the unconditional order of recognition of N.C.T.E. It is the case of the petitioners that they have received the said permission. Apart from N.C.T.E. permission the petitioners were also to take permission from the respondent No.3 to whom they have made applications in January, 2007. Those applications are yet to be decided. Even before that it appears that the petitioners have started Colleges. - 5 - 2. The petitioners have now approached this Court as respondent No.5 has issued a notice dated 5th April, 2007 directing the petitioners to close down the unauthorised D.Ed. colleges at Akkalkot and Solapur. . In our opinion it will not be possible to grant the relief as prayed for. Institutions cannot take permission for granted and start educational institutions without due permission and then approach this Court to get protection. We are, therefore, not inclined to grant the relief as prayed for. 3. If, however, the petitioners applications for permission are pending before respondent No.3 the respondent No.3 to consider the same and dispose them of not later than 31st May, 2007. With the above observations, petition disposed of." 4. Perusal of the above quoted order shows that this court rejected the petition of the Petitioners so far as challenge to the letter dated 5th April, 2007 is concerned. It also held that the jurisdiction of this court cannot be used to protect the admission - 6 - granted to the students unauthorisedly. Perusal of the above order also shows that the Respondents were directed to dispose of the applications filed by the Petitioners for permission by 31st May, 2007. Therefore, the State Government issued the letter dated 21-5-2007 reiterating the stand that it had taken in the letter dated 5th April, 2007 and informing the Petitioners that they can admit the students in the three colleges for the academic year 2007-08, but the admissions given by them to the students during the academic year 2006-07 are unauthorised. 5. The principal submission of the learned Counsel appearing for the Petitioners is that in view of the judgment of the Supreme Court in the case of State of Maharashtra v/s. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and ors, 2006 (3) SCALE 675 before admitting the students after NCTE granted permission it was not necessary for the Petitioners to take any permission from the State Government or the Respondent No.3 and therefore the admission given by the Petitioners to the students for the year 2006-07 cannot be said to be unauthorised. 6. We have heard the learned Counsel appearing for - 7 - the State Government as also the learned Counsel appearing for the Respondent No.3. Their principal submission is that so far as admission granted by the Petitioners for the academic year 2006-07 are concerned, the Petitioners were informed by letter dated 5th April, 2007 that the admissions granted by them for the academic year 2006-07 are concerned, they are unauthorised and the Petitioners were not justified in starting their colleges during the academic year 2006-07. That letter was challenged by filing Writ Petition No.3526 of 2007 and the petition was dismissed by this court on merits and therefore according to them the question of validity or otherwise of the admissions granted by the Petitioners for the academic year 2006-07 cannot be raised by the Petitioners again before this Court. They submitted that this court has already held by the above referred order that the Petitioners cannot be granted any relief by this court so far as the admission given to the students for the academic year 2006-07 is concerned. It was submitted that, if according to the Petitioners the order of this court referred to above was not legal and was contrary to the judgment of the Supreme Court, the remedy of the Petitioners was either to apply for review of that order or to challenge that order before the superior - 8 - court. The Petitioners can not by filing a petition raise the same question before a co-ordinate bench. 7. Now, it is clear that what was challenged in the Writ Petition No.3526 of 2007 was the letter dated 5th April, 2007. Perusal of that letter dated 5th April, 2007 shows that that letter is written with reference to the letter of the Petitioners dated 15-1-2007, by which the Petitioners informed the Respondent No.3 and the State Government that after getting permission or recognition from NCTE they are applying for permission from the State Government for starting the courses. It appears that they also informed the State Government that they have already admitted the students for the academic year 2006-07. It was stated in the letter dated 5th April, 2007 that after getting permission from NCTE the students can be admitted and course can be started only after getting permission from the State Government and the Respondent No.3. It was stated that because the Petitioners have started their three colleges without obtaining prior permission from the State Government and the Respondent No.3, starting of the colleges and admissions given to the students for the academic year 2006-07 are unauthorised and illegal. It was also made clear that if any student suffers because - 9 - of this, it will be at the risk and costs of the Petitioners. The Petitioners, therefore, were asked to close down the colleges so that students do not suffer further. Thus by this letter the Petitioners were clearly told that starting of the colleges for the academic year 2006-07 and grant of admissions to the students for the academic year 2006-07 is completely illegal, because that has been done without obtaining permission from the State Government and the Respondent No.3. If according to the Petitioners, as per the judgment of the Supreme Court in the case of Sant Dnyaneshwar Shikshan Mahavidhyalaya (supra) permission from the Respondent No.3 and the State Government was not necessary for starting the college, that contention could have been raised by the Petitioners when they filed Writ Petition No.3526 of 2007. We really do not know whether such a contention was raised or not. But from the order passed by this court it appears that such contention was not urged. In our opinion, when the plea was available to the Petitioners, it will be deemed that they have raised the plea and they will not be permitted to raise it again and again and therefore the contention of the Petitioners that because of the judgment of the Supreme Court referred to above, the order/letter dated 21-5-2007 is invalid - 10 - so far as it relates to the academic year 2006-07 is concerned, in our opinion, cannot be considered by us. In this connection, in our opinion, observations of the Supreme Court found in paragraph 8 of its judgment in the case of The Workmen of Cochin Port Trust v/s. The Board of Trustees of the Cochin Port Trust and anr, AIR 1978 SC 1283 are relevant. They read as under: 8. It is well-known that the doctrine of res judicata is condified in S.11 of the Code of Civil Procedure but it is out exhaustive. Section 11 generally comes into play in relation to civil suits. But apart from the codified law the doctrine of res judicata or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by Courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of S.11 of the Code of Civil Procedure and in many other situations also principles not only of direct res judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and - 11 - explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided. In this case by letter dated 5th April, 2007 the Petitioners were clearly informed that the admissions given by them for the academic year 2006-07 are unauthorised. Therefore, when the petition was filed challenging that decision taken by the Respondents, all challenges that were available to the Petitioners must be deemed to have been raised by the Petitioners - 12 - and rejected by this court when the court rejected the Writ Petition filed by the Petitioners by the order quoted above. The letter dated 21-5-2007 is really pursuant to the directions given by this court by its order dated 3rd May, 2007 to decide the applications filed by the Petitioner. By that letter, so far as academic year 2006-07 is concerned, exactly the same position which was stated in the letter dated 5th April, 2007 has been repeated and so far subsequent academic year 2007-08 is concerned the Petitioners have been granted permission. The Petitioners can be said to be aggrieved by the directions given in the letter dated 21-5-2007 in relation to the academic year 2006-07, but that direction is not any fresh direction, that direction was already given by letter dated 5th April, 2007 and challenge to that direction failed because Writ Petition No.3526 of 2007 has been dismissed. The Petitioners, therefore, cannot be permitted to challenge the decision of the Government and the Respondent No.3 in relation to the admissions given by the Petitioners for the academic year 2006-07 is concerned. 8. In our opinion, therefore, challenge to the - 13 - letter dated 21-5-2007 in so far as admissions granted to the academic year 2006-07 are concerned, cannot be entertained in view of the judgment in Writ Petition No.3526 of 2007, which binds the Petitioners in the absence of any challenge being raised to it. 9. In this view of the matter, therefore, in our opinion, petition has to fail. The Petition, therefore, fails and is dismissed. Rule discharged with no order as to costs. . At the request of the learned Counsel appearing for the Petitioners, it is directed that despite dismissal of the petition, interim order that may be presently operating shall continue to operate for a period of six weeks from today. (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.)