IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 23-1-2008 Coram The Honourable Mr.Justice S.J.MUKHOPADHAYA and The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.A.Nos.82, 83 & 234 of 2007 W.P.Nos.624, 14729 & 18967 of 2007 W.A.No.82 of 2007 Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Udumalaipet Taluk, Coimbatore District. ... Appellant Vs. 1. The Regional Director, National Council for Teacher Education, Southern Regional Committee, 1st Floor, CSD Building, HMT Post, Bangalore - 560 031. 2. The Director of Teacher Education, Research and Training, College Road, Chennai -6. 3. The Principal, District Institute of Education and Training, Thirumurthy Nagar, Coimbatore. ... Respondents This Writ appeal is preferred under Clause 15 of the Letters Patent, against the order dated 16.12.2006 made in W.P.No.27148 of 2006. Filed under Article 226 of Constitution of India, Praying this Court to issue a writ of certiorari or any other appropriate writ in the nature of writ of direction calling for the records of the 2nd respondent in RC.No.1008/C1/2006, dated 9.8.2006 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ W.A.No.83 of 2007 Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Udumalaipet Taluk, Coimbatore District. ... Appellant Vs. 1. The Director of Teacher Education, Research and Training, College Road, Chennai - 6. 2. The Director of Government Examinations, College Road, Chennai - 6. 3. The Principal, District Institute of Education and Training, Thirumurthy Nagar, Coimbatore. ... Respondents This Writ appeal is preferred under Clause 15 of the Letters Patent, against the order dated 16.12.2006 made in W.P.No.46403 of 2006. Filed under Article 226 of the Constitution of India, Praying this Court to issue a writ of mandamus, to direct the 1st respondent to approve the students list submitted by the petitioner's Teacher Training Institute for the academic year 2005-2006 and further direct the respondents to permit those students of the petitioners institute to sit for the examination in the 1st year Diploma in Teacher Education to be held in December 2006 or on subsequent dates. W.A.No.234 of 2007 K. Ravi ... Appellant Vs. 1. Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Madathukulam, Udumalaipet Taluk, Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/ 2. The Regional Director, National Council for Teacher Education, HMT Post, Jalahalli, Bangalore - 560 031. 3. The Director of Teacher Education Research & Training, College Road, Chennai - 600 006. 4. The Principal, District Institute of Educational and Training, Tirumurthy Nagar, Coimbatore. ... Respondents This Writ appeal is preferred under Clause 15 of the Letters Patent, against the order dated 16.12.2006 made in W.P.No.27148 of 2006. W.P.No.624 of 2007 Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Madathukulam, Udumalaipet Taluk, Coimbatore District. ... Petitioner Vs. 1. The Regional Director, National Council for Teacher Education, HMT Post, Jalahalli, Bangalore - 560 031. 2. The Director of Teacher Education, Research and Training, College Road, Chennai - 6. ... Respondents This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records of the first respondent in code: APSO 1103F.SRO/NCTE/2006-07 dated 4.12.2006 and quash the same and further direct the first respondent to approve the shifting of the petitioner Teacher Training Institute from Thippampatty, Pollachi Taluk, Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.14729 of 2007 Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Madathukulam, Udumalaipet Taluk, Coimbatore District. ... Petitioner Vs. 1. The Director of Teacher Education Research & Training, College Road, Chennai - 600 006. 2. The Principal, District Institute of Educational and Training, Tirumurthy Nagar, Coimbatore. ... Respondents This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of mandamus directing the respondents to depute the 2005-2006 batch students of the Petitioner Institute for Teaching Practice and Commission Work and publish the first year result of the examination held on 18.12.2006 so as to enable them to complete the second year examinations. W.P.No.18967 of 2007 Evva Memorial Teacher Training Institute, rep.by its Correspondent S.Jayaparvathy, No.9/67, Vanjipuram, Kaniyur Post, Madathukulam, Udumalaipet Taluk, Coimbatore District. ... Petitioner Vs. 1. The Director of Teacher Education Research & Training, College Road, Chennai - 600 006. 2. The Principal, District Institute of Educational and Training, Tirumurthy Nagar, Coimbatore. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of mandamus directing the respondents to include the petitioner institute viz. Evva Memorial Teacher Training Institute, Vanjipuram, Kaniyur Post, Udumalaipet Taluk, Coimbatore District in the list of recognised Teacher Training Institute. For Appellant in WA.82, 83/2007, : Mr.Vijay Narayan, Petitioner in WP.624, 14729 & Senior Counsel 18967/2007 & R-1 in WA.234/2007 for Mr.S.Kamadevan Mr.T.V.Badrinarayan For Appellant in WA.234/2007 : Mr.K.Sridhar For NCTE/R1 in WA.82/2007, : Mr.P.R.Gopinath WP.624/2007 and R2 in WA.83/2007 For DTE/R1 in WA.83/2007,WP.14729/07: Ms.Dakshayani Reddy, WP.18967/2007; R2 in WA.82/2007 & Government Advocate WP.624/2007; R3 in WA.234/2007 COMMON JUDGMENT N. PAUL VASANTHAKUMAR, J. W.A.Nos.82, 83 and 234 of 2007 arise from the common order made in W.P.Nos.27148, 46406 and 27148 of 2006 respectively. W.A.Nos.82 and 83 of 2007 are filed by one S.Jayaparvathi, claiming herself as correspondent of Evaa Memorial Teacher Training Institute. W.A.No234 of 2007 is preferred by one K.Ravi, who is the Agreement Holder of Evaa Memorial Teachers Training Institute. 2. W.P.No.624 of 2007 is filed by the S.Jayaparvathi, claiming herself as Correspondent of Evva Memorial Teacher Training Institute, wherein the order of the Regional Director Southern Regional committee, NCTE, dated 4.12.2006 in which the request for shifting the location of Teachers Training Institute was rejected with a consequential direction to approve the shifting of the Teacher Training Institute from Thippampatti, Pollachi Taluk, Coimbatore District to Annai Sathya Nagar, Madathukulam, Udumalapet Taluk, Coimbatore District. 3. W.P.No.14729 of 2007 is also filed by the said S.Jayaparvathi for issuing a writ of mandamus directing the Director of Teacher Education Research and Training and the Principal, DIET, Tirumurthi Nagar, Coimbatore, to depute 2005-2006 https://hcservices.ecourts.gov.in/hcservices/ batch of students of her Institute for teaching practice and commission work and publish the first year results of the examinations held from 18.12.2006, so as to enable them to complete the second year examination. 4. W.P.No.18967 of 2007 is filed by the said S.Jayaparvathi, for issuing a writ of mandamus directing the Director of Teacher Education, Research and Training, Chennai-6, and the Principal, DIET , Tirumurthi Nagar, Coimbatore to include her institute in the list of recognised Teacher Training Institute. 5. The issue involved in all the writ appeals and the writ petitions are one and the same and hence all the cases are disposed of by this common Judgment. 6. The brief facts necessary for disposal of the writ appeals and the writ petitions are as follows: (a) A Teacher Training Institution was said to have been established by an Educational Trust called Evva Memorial Educational Trust and the same is said to have been registered under the Tamil Nadu Societies Registration Act, in the year 1992. The said Institute obtained recognition from the competent authority of the State of Tamil Nadu in August, 1992. The said recognition was cancelled along with the recognition granted to several other similar Teacher Training Institutes, pursuant to the order passed by the Division Bench of this Court in the year 1994 in W.P.No.9494 of 1994. (b) The National Council for Teacher Education Act, 1993, came into force from August, 1994, pursuant to which the Evva Memorial Teacher Training Institute having its office at Sathya Nagar, Madathukulam, Udumalapet Taluk, Coimbatore District, applied for No Objection Certificate from the State Government for submitting application for recognition before the Southern Regional Committee of the NCTE under Section 14 of the NCTE Act. The State Government by order dated 13.9.2004 granted NOC for establishing Teacher Training Institute (Elementary) to the said Trust on certain conditions. (c) Condition No.6 states that the Institution will be permanently located at Thungavai Village and the NOC was granted on the ground of having land measuring five acres shown at S.No.351/1 and 351/B, Udumalapet Taluk. Condition No.9 states that the Institution should be located temporarily in a rented building and should be shifted to its own building in its own land, within three years from the grant of recognition by the NCTE. (d) The said Trust applied for recognition before the NCTE for the grant of recognition under section 14 of the NCTE Act, 1993. The Southern Regional Committee of NCTE having not taken https://hcservices.ecourts.gov.in/hcservices/ any steps to consider the application for recognition, the Institute filed writ petition before this Court and obtained an order on 4.8.2004 for a direction to the NCTE to consider the application and pass orders on merits. When the application for recognition was pending before the NCTE, the Institute entered into an unregistered lease agreement on 29.11.2004 with one K.Ravi, who is the appellant in W.A.No.234 of 2007 for taking portion of the building owned by him at Thippampatti, where he is already running a Matriculation school. (e) The NCTE granted recognition to the Institute by order dated 27.1.2005 for offering two year teacher Training Course (Elementary) from the academic session 2004-2005. The recognition order states that the recognition is granted to Evva Memorial Teacher Training Institute, Vanchipuram, Kaniyur, Coimbatore District and it was communicated to the Thippampatti address, where the building was taken on lease from the said K.Ravi on 29.11.2004. The said order of recognition further states that the Institute will ensure that permanent building is constructed within a period of three years on acquiring of land with a further condition to get approval of staff list from the Director of Teacher Education, Research and Training, Chennai. The Director of Teacher Education Research and Training by order dated 19.8.2005, granted the staff approval. (f) Before the grant of staff approval, the Correspondent and the other representatives of the Institute entered into an unregistered agreement on 12.4.2005 with the said K.Ravi by stating that recognition granted to Evva Memorial Teacher Training Institute by the NCTE on 27.1.2005 and the No Objection Certificate granted by the State of Tamil Nadu is agreed to be transferred in the name of the said K.Ravi for a sum of Rs.15 lakhs and the parties agreed that from the date of agreement the said K.Ravi viz., the Agreement Holder shall administer the institution and no other person is entitled to administer the same and claim any right. It was further agreed that three seats in the Institute for 2005-2006 shall be filled up by the candidates suggested by the promoters. (g) The Correspondent/promoters received a cheque for Rs.9 lakhs from the Agreement Holder viz., K.Ravi and the same was encashed. They also received two post-dated cheques, each for a sum of Rs.3.00 lakhs. However, one of the post-dated cheque got dishonoured on the ground that the promoters did not come forward to sign necessary applications for effecting the transfer. (h) The promoters contend that as per the agreement, if any of the conditions of the agreement is contravened, the entire agreement will be treated as cancelled. On the basis of the said https://hcservices.ecourts.gov.in/hcservices/ agreement, the promoters as well as the Agreement Holder started admitting the students for Teacher Training Education Course and the results of the examinations written by the students were not declared. 48 students joined together and filed W.P.No.18967 of 2006 and prayed for direction to publish their results. In the said writ petition both the promoters as well as the Agreement Holder got themselves impleaded as owners of the Institution. By order dated 25.7.2006 this Court gave a direction to publish the results of the said students, leaving the dispute relating to the transfer of the institution undecided. (i) The promoters of the Institute applied to the DTERT for permission to shift the Institution to Annai Sathya Nagar, Madathukulam, Udumalapet Taluk. However, they were directed to get approval from the NCTE for shifting. The promoters filed W.P.No.25244 of 2006 claiming that they have applied before the NCTE on 29.10.2005 for permission to shift, in which the NCTE took a stand that for changing the site, prior approval is necessary and the application must accompany a demand draft for Rs.40,000/-. The said writ petition was disposed of by order dated 10.5.2006 by allowing the promoters to apply to the NCTE for approval in the prescribed form along with necessary documents, with further direction to the NCTE to inspect the site and pass orders according to law. (j) On 14.8.2006, the promoters submitted an application to the NCTE along with demand draft for Rs.40,000/-. On 9.8.2006, DTERT passed an order prohibiting admission of students by the promoters for the academic year 2006-2007 until the rival claims of the ownership of the Institute is lawfully resolved. The said order of the DTERT dated 9.8.2006 was challenged by the promoters in W.P.No.27148 of 2006 and while admitting the writ petition, interim stay of the order was granted and a further interim direction was issued directing the NCTE to inspect the premises at Annai Sathya Nagar, Madathukulam and pass orders within three weeks. In the said writ petition, the Agreement Holder viz., K.Ravi got himself impleaded. The NCTE Inspected the premises of Annai Sathya Nagar, Madathukulam on 11.10.2006 and rejected the request for shifting the institution by order dated 4.12.2006, which is challenged in W.P.No.624 of 2007. (k) On 19.1.2006 the promoters submitted a list of students to the DTERT for approval and the same having not been processed, the promoters filed W.P.No.46403 of 2006 and prayed for direction to approve the students list submitted by them for the academic year 2005-2006 and permit them to sit for examination scheduled to commence from 18.12.2006. The said K.Ravi, who is the Agreement Holder also filed W.P.No.47860 of 2006 for issuing writ of mandamus directing the Director of Government Examinations to https://hcservices.ecourts.gov.in/hcservices/ issue Hall Tickets to 48 students admitted by him in the rented premises to appear for examinations scheduled to commence from 18.12.2006. (l) The said writ petition 27148, 46403 and 47860 of 2006 were heard by the learned Single Judge and by a Common Order dated 16.12.2006 held that the certificate of recognition is sold by the promoters as a tradable commodity to the Agreement Holder viz., K.Ravi and the same is impermissible as it is in violation of section 23 of the Indian Contract Act, 1872. The agreement dated 12.4.2005 is void since both the parties are guilty of violating the provisions of the NCTE Act, 1993. The learned single Judge also held that the right to establish and administer Educational Institution, even though guaranteed under Article 19 (1)(g) of the Constitution of India, the Supreme Court has made it clear that Education cannot be treated as a trade or business, but should be treated only as an occupation, as per the Judgment of the Supreme Court made in TMA Pai Foundations and others Vs. State of Karnataka, (2002) 8 SCC 461 and P.A.Inamdar and others Vs. State of Maharashtra, (2005) 6 SCC 537. (m) The learned single Judge also found that there is no provision under the NCTE Act enabling the management to transfer a Teacher Training Institute and in the absence of any provision under the NCTE Act, the transfer of management could be made under section 8 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, which only provides transfer of the entire management and not transfer of recognition alone. Hence the learned Judge held that the order passed by the DTERT prohibiting admission of students is valid and the students admitted by the promoters of Institute numbering 48 (admitted in 2005-2006 batch) including 23 students admitted by the Government through single Window Selection shall be admitted in a Government Teacher Training Institute for the second year course. The students admitted by the agreement holder viz. K.Ravi even though is not entitled to get any relief, taking note of the interest of the students, a direction was issued to the Special Government Pleader (Education) to find out whether they could be accommodated in other institution for undergoing second year. In paragraph 43, the learned Judge passed the following order, 43. Under the above circumstances, all the three writ petitions are disposed of with the following directions:- (a) The prayer made in W.P.No.27148 of 2006 for setting aside the order of the Director dated 9.8.2006 is rejected. (b) In so far as the prayer made by the promoters of the institute in W.P.No.46403 of 2006 and the prayer made by the students in W.P.No.47860 of 2006 are concerned, the Director of Teacher Education Research and Training shall permit all https://hcservices.ecourts.gov.in/hcservices/ those students admitted for the academic year 2005- 2006 by both parties, to write the examinations scheduled to be held from 18.12.2006. (c) After the completion of the examinations, the entire batch of students admitted by the promoters and the agreement holder K.Ravi as well as those admitted under the Single Window System for the academic year 2005-2006, shall be reallotted by the Director of Teacher Education Research and Training to other recognised or Government Teacher Training Institutions, for continuing the second year of the Diploma Course. (d) The Director of Teacher Education Research and Training shall also send a proposal to the NCTE for the approval of the additional intake, to the institutions to which these students are reallotted, within a month from the date of receipt or production of a copy of this order. (e) The Southern Regional Committee of NCTE shall consider the request of the Director of Teacher Education Research and Training for approval of the additional intake for those institutions to which these students are reallotted and pass appropriate orders, within one month of submission of the request by the Director of Teacher Education Research and Training. (f) The students admitted by the promoters for the year 2006-2007 cannot continue the course, since they could have been admitted only after the interim stay order granted on 22.8.2006 in W.P.No.27148 of 2006. Therefore, the petitioner in W.P.No.27148 of 2006 shall return to those students, all the original certificates submitted by them, together with the entire amount of fees and other charges collected from those students, within a period of two weeks from the date of receipt or production of a copy of this order. Since these students could have been admitted only after 22.8.2006 and that too by virtue of an interim order of this Court, to the first year of the two year Diploma Course, these students may not be entitled to the rehabilitation, prescribed under clauses (c) to (e) above, along with the students admitted for the year 2005-2006. Therefore these students admitted for the academic year 2006-2007 will have to work out their remedies only against the persons who granted admission to them and they cannot seek approval of their admission. (g) The petitioners in W.P.No.27148 of 2006 https://hcservices.ecourts.gov.in/hcservices/ and 46403 of 2006 as well as the agreement holder K.Ravi, who is the petitioner in M.P.Nos.3 and 4 of 2006 in W.P.No.27148 of 2006, shall deposit with the Director of Teacher Education Research and Training, the entire amount of fees and other charges collected by them from the entire batch of 2005-2006 candidates, within two weeks from the date of receipt or production of a copy of this order. (h) The amount so deposited shall be utilised by the Director for the purpose of making payment of fees and other charges on behalf of these students, when they are reallotted to other institutions. While making payment, if any short fall arises, the Director shall be entitled to collect the same also from the promoters and K.Ravi, in proportion to the number of students admitted by them. If the amount deposited by the promoters and the agreement holder is in excess of the tuition fee and other charges payable by the rehabilitated students to the reallotted institutions, the same shall be refunded to the students proportionately. (i) The National Council for Teacher Education is directed to initiate action against the institute under Section 17 of the NCTE Act, within two weeks from the date of receipt or production of a copy of this order. (j) Henceforth NCTE shall not merely issue the order of recognition in the name of the proposed institute. NCTE shall enclose to every order of recognition granted by them, a format of particulars containing the details relating to the name and address of the Educational Agency to which recognition is granted, (apart from the name of the Institute) the nature of the Educational Agency as to whether it is a Trust, a Society or a Company, the Registration Number of the Trust, Society or Company, the address in respect of which the institution was granted recognition to locate its institute. The NCTE shall also make it mandatory for the institutes to publish both the order of recognition as well as the enclosed format of particulars with the above details, in the prospectus inviting applications for admission, so that the students know the actual persons who run run the Educational Agency and their background and the students are thereby prevented from being taken for a ride and also prevented from claiming https://hcservices.ecourts.gov.in/hcservices/ ignorance." As against the said order, both the promoters as well as Agreement Holder filed the above writ appeals. 7. Mr.Vijay Narayan, learned Senior Counsel appearing for the appellants in W.A.No.82 and 83 of 2007 filed by the promoters, contended that the promoters have not violated any provisions of the law while entering into the agreement to transfer the recognition order as well as No Objection Certificate obtained from the State Government to the said K.Ravi as it is permissible under Section 8 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, and post approval of transfer of management is permissible and therefore there is no illegality in entering into the said agreement. He further contended that in fact, the agreement holder, only breached the terms contained in the agreement by not honouring the cheque issued by him for a sum of Rs.3.00 lakhs and as per the terms in the said agreement, the agreement stands terminated due to non-performance of part of the agreement. The promoters having got a right to shift the Institution, have applied before the NCTE and the same is rejected on untenable grounds and therefore the writ petition filed in W.P.No.624 of 2007 challenging the order of rejection dated 4.2.2006 is to be allowed. The learned Senior Counsel further submitted that this Court, while admitting the writ appeals granted interim stay and the students admitted in the year 2005- 2006 continued their second year course through the Institute of the promoters and this Court also granted interim order on 4.10.2007 to write the second year examinations to 27 students, scheduled to be held from 8.10.2007 however their results are yet to be published and the practical examination and teaching practice shall be arranged to them. The learned senior counsel further submitted that the said K.Ravi, who is the Agreement Holder, who is also appellant in W.A.No.234 of 2007 is no longer running Teacher Training Institute and by granting permission to shift the Teacher Training Institute by the NCTE, no prejudice would be caused to anyone and the claim of the said Ravi can be decided in the suit filed by him in O.S.No.373 of 2006 before the District Munsif Court, Udumalpet and subject to the result of the suit, direction can be given for the continuance of the Institution by admitting students. 8. The learned counsel appearing for the appellant in W.A.No.234 of 2007 contended that the promoters having entered into an agreement on 12.4.2005 are bound to sign and submit the proposal for approving the transfer of management and on refusal to sign the necessary papers one of the cheque issued by the Agreement Holder was not honoured and therefore he has rightly filed O.S.No.373 of 2006 before the District Munsif Court, Udumalpet, seeking a decree of mandatory