Letters Patent Appeal No.756 OF 2008 -------- (Against the judgment and order dated 5.8.2008 passed by learned Single Judge in CWJC No. 5785 of 2007 and CWJC No. 13416 of 2007) 1. Lalit Narayan Mithila University, through its Registrar, Kameshwar Nagar, Darbhanga. 2. Vice Chancelllor, Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga. 3. Registrar, Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga. 4. Controller of Examination, Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga. ……Respondents/Appellants Versus 1. S.M.Zaheer Alam Teachers Training College, Bahera, through its Secretary, S. M. Naiyar Imam, son of late S. M. Zarif, resident of village Bahera, Police Station Bahera and District Darbhanga. … Petitioner. 2. The State of Bihar through the Commissioner cum Secretary, Human Resources Development Department, Government of Bihar, New Secretariat, Patna. 3. National Council for Teachers Education through the Member Secretary, Wing-II, Hans Bhawan, Bahadur Shah Zafar Marg, New Delhi. 4. Eastern Regional Committee through the Regional Director, N.C.T.E, 15, Neelkanth Nagar, Nayapalli, Bhubaneshwar. 5. Hon’ble Chancellor of Universities, Raj Bhawan, Patna. 6. Najeeb Ahmad Khan, s/o Dr. T. I. Khan r/o National Cinema Chowk, Darbhanga. 7. Sharmila Kumari, d/o Siya Ram Sharma, r/o Anand Bhawan, Sarita Tola, Sheetalpur, Saran 8. Tabassum Sultana, d/o Sultan Ahmad Khan, r/o Station Road, Nawadah, P. S. Nawadah, District-Nawadah. .. Respondents. -------- For the appellants : Mr. Lalit Kishore, Sr. Adv. : Mr. Pushkar Narain Shahi, Adv. For the Respondent No. 1 : Mr. Ashok Kumar Choudhary, Adv. : Mr. Pratap Sharma, Adv. For Respondent nos. 3 and 4 : Mr. S. N. Pathak, SCC.G. For respondent nos. 6 to 8 : Mr. Pratap Sharma, Adv. ------- 2 PRESENT: THE HON’BLE THE CHIEF JUSTICE THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA JUDGEMENT ( 20/05/2010) As per Mihir Kumar Jha, J. Heard Mr. Lalit Kishore, learned counsel for the appellants, Mr. Ashok Kumar Chaudhary, learned counsel appearing on behalf of the contesting respondent-writ petitioner, Mr. S. N. Pathak, learned counsel appearing on behalf of Nation Council of Teachers Education (NCTE) and Mr. Pratap Sharma, learned counsel appearing on behalf of respondent nos. 6 to 8. 2. This intra court appeal is directed against the judgment and order dated 5.8.2008 of the learned single Judge in C.W.J.C. No. 5785 of 2007 which was heard along with C.W.J.C. No. 13416 of 2007 and allowed by directing the appellant Lalit Narayan Mithila University, hereinafter referred to as the University to permit the students of S. M. Zaheer Alam Teacher Training College, Bahera, hereinafter referred to as the College, for the sessions 2001-02, 2002-03,2003-04 for appearing in the next forthcoming examination of B.Ed Course conducted by the said University subject to fulfillment of the prescribed formalities regarding forms and fees etc. 3. Shorn of niceties, the facts required to be taken into consideration lie in a narrow compass. The College is said to have been established in the year 1984 by a Muslim Minority Society, namely ‘Rauf 3 Muslim Jamia’ registered under the Society Registration Act, 1860 for imparting education of teachers training leading to one year B.Ed course. The college was granted permanent recognition by the State of Bihar on 29.9.1994. Soon thereafter however National Council For Teachers Education Act, 1993 (hereinafter referred to as ‘the Act’) came into force with effect from August 1995 in the State of Bihar and in terms of the requirement under the Act the College had applied for recognition with National Council for Teachers Education (NCTE) and the Eastern Regional Committee (E.R.C.) of NCTE at Bhuvneshwar had initially by an order dated 12.7.1997 in terms of section 14 of the Act had given recognition to the College for its one year B.Ed Course for the academic session 1997-98 only on a provisional basis making such recognition conditional and subject to fulfillment of NCTE norms. Such temporary recognition for one year of the college with the NCTE was again extended by another order dated 22.6.1998 of the regional committee for the academic session 1998-99 onwards on a condition that the College must continue to fulfil the norms laid down under the regulations and submit its annual report in this regard by 30th of April of each year. 4. It is a matter of record that such recognition of the College with NCTE had continued only upto 2000-01 session inasmuch as by order dated 9.5.2001 the E.R.C. of NCTE on the basis of its inspection report and other relevant materials furnished by the College had found that the College did not fulfil the prescribed requirement and as such by a 4 notice dated 29.6.2000 in terms of proviso to Section 14(3)(b) of the Act as with regard to cancellation of the recognition and after affording an opportunity of hearing to the College had refused to grant it recognition from 2001-02 session on as many as six grounds namely:- “1. Teachers are neither paid salary as per UGC scales not as per State Govt. scales. 2. The Psychology lad; E.T. lab & Work Experience lad. are not equipped as per NCTE norms. 3. The audited account of the college was neither shown to the visiting team nor has been submitted to ERC. 4. The institution does not have adequate number of practice teaching schools in the area. 5. The working days and teaching days are not observed as per NCTE norms in the institution. 6. The endowment fund of Rs. 5 lacs and reserve fund equal to three months salary of the staff is not maintained by the institution.” 5. The refusal of recognition by order dated 9.5.2001 made the College an unrecognized college by NCTE and despite the appeal preferred by the College before the Central Council of NCTE against the said order, dated 9.5.2001 of the E.R.C. was not interfered with as would be apparent from the appellate order passed by the Central Council of NCTE dated 4.9.2001 whereby and whereunder the case of the College was only remanded back for reconsideration under the relevant provision of the Act. There being no order of stay by the appellate authority, the College continued to remain derecognized by NCTE and the E.R.C. of the NCTE even after reconsideration had held that the claim made by the 5 College regarding its present status and removal of deficiencies was incorrect inasmuch as no significant improvement had been made in the status of the College and as such the E.R.C. by an order dated 19/20.05.2003, had again reiterated its the earlier decision of refusal of recognition of the College in the order dated 9.5.2001. 6. To complete the sequence, it would be also necessary to note here that the appeal filed by the College against the order of E.R.C. dated 19/20th May 2003 was again disposed of by the Central Council of NCTE by an order dated 25.8.2003 without giving any substantial relief to the College which in fact had once again only remanded the matter back to E.R.C. for considering the findings of the re-inspection of the College in the report dated 27.3.2003. The E.R.C. of NCTE on being again remanded the matter back by the appellate order of Central Council dated 25.8.2003 had once again reiterated its earlier decision dated 9.5.2001 regarding refusal of recognition to the College on the following grounds:- “(i) The audited accounts of the college were neither shown to the visiting team nor have been submitted to ERC. (ii) Transparency in financial transactions is not maintained. (iii) The salaries are not paid in cheque. (iv) The endowment fund of Rs.5 lacs and reserve fund equal to three months salary of the staff is not maintained by the Institution. (v) Proper procedure has not been followed in the recruitment of teachers as well as admission of students in the B.Ed. programme.” 6 7. The College again went in appeal for the third time before the Central Council of the NCTE which curiously this time by its order dated 28.7.2004 had set aside only the third order of the E.R.C. dated 6.11.2003 on the ground that new grounds recorded in the said order dated 6.11.2003 by the E.R.C. without its being brought to the notice of the College through a show-cause notice was unsustainable. It has to be however noted that the Central Council in its appellate order while reversing the order of E.R.C. had also sought to restore "status quo ante". 8. From the aforesaid admitted facts it is clear that the earlier order of refusal of recognition the E.R.C. dated 9.5.2001 and its affirmance again in the order dated 19/20.05.2003 were never set aside or reversed by the Central Council in exercise of its appellate power under Section 18(5) of the Act and it is only the third order of E.R.C. dated 6.11.2003 which alone was set aside and that too not on merits but only on the ground of alleged violation of principles of natural justice. 9. Be that it may, after the said order dated 28.7.2004 was passed by the Central Council of NCTE the College, respondent-writ petitioner, had approached the University with a request that its students of Sessions 2001-02, 2002-03,2003-04 should be allowed to appear in the B.Ed. examination conducted by the University. The University accordingly had sought certain clarifications by its letter dated 11.9.2004 from the E.R.C. of NCTE as with regard to meaning of the "status quo ante" granted to the College by the Central Council in its order dated 28.7.2004. The E.R.C. 7 in its reply vide letter dated 24.9.2004 had informed the Controller of the Examination of the University that meaning of status quo ante granted and restored under the order of Central Council of NCTE was being ascertained from the NCTE headquarters and the same would be communicated on receipt of such clarification from the headquarter of NCTE. 10. From the averments made in the writ petition it however appears that in the meantime the College had moved Delhi High Court in WP(C) No. 6695 of 2003 as against the aforementioned order dated 6.11.2003 passed by the E.R.C. refusing to give recognition to the College but in view of the aforesaid appellate order of the Central Council dated 28.7.2004 reversing the order of the E.R.C. dated 6.11.2003, the College had sought leave of the Delhi High Court to withdraw the writ petition which was allowed by an order dated 13.10.2004 of the Delhi High Court with a direction to NCTE that steps be taken for holding examination of B.Ed. Course of students of the College in terms of the order of the Central Council of NCTE dated 28.7.2004. The Central Council of NCTE thereafter, interpreting the order of Delhi High Court dated 13.10.2004 had directed the E.R.C. of NCTE to permit all the students of the College to take examination for B.Ed. Course who were enrolled even after 8.5.2001 and accordingly the E.R.C. of NCTE in its letter dated 5.11.2004 addressed to the Controller of Examination of the University on the basis of order of the Delhi High 8 Court dated 13.10.2004 had advised the University that the students of the College who were enrolled either before or after 8.5.2001 should be allowed to appear the University B.Ed. examination in the light of order of the Delhi High Court after due verification of their enrollment by the College. 11. The University, thus, had constituted a committee of three members, namely, Professor A. P. Sinha, Department of Zoology, Marwari College, Dr. Jaykar Jha, Head, P. G. Deptt. Of Botany, L. N. Mithila University, and Dr. R. K. Choudhary, Inspector of Colleges to enquire into the details regarding affiliation of the college, enrollment of the students after 8.5.2001 and other necessary formalities for holding of the examination as would be evident from the resolution of the Examination Board of the University dated 13.12.2004. It appears that three members committee had submitted their report whereafter the matter was placed to the Examination Board of the University in its meeting held on 17.2.2005. The Examination Board in the light of the enquiry report submitted by the three members committee and its recommendation had rejected the request of the College for holding examination of its students for the Sessions 2001-02, 2002-03, 2003-04 in the period in which the College had stood derecognized by the NCTE and a communication to this effect was also made to the Principal of the College by the University vide its letter dated 24.2.2005, which had also become final in the absence of its assailed either before Chancellor of the 9 University or before an appropriate court of law. 12. The College infact had only moved the Delhi High Court by filing a contempt petition for violation of its order dated 12.10.2004 and the Delhi High Court had issued notice for contempt on 4.3.2005 and thereafter by a fresh order dated 14.3.2005 Delhi High Court had directed the Controller of the Examination of the University that those students of the College who had allegedly been admitted in 2003-04 Session, be permitted to take next ensuring examination whereas for the other students of 2001-02 and 2002-03 sessions, the University should submit its proposal to Delhi High Court for holding a special examination. 13. The Vice- Chancellor and the Controller of examination of the University thereafter had moved the Apex Court by filing Special Leave Petition No. 7354 of 2005 as against the notice of contempt and the aforesaid order of the Delhi High Court dated 14.3.2005 and the Apex Court by its order dated 6.4.2005 had stayed the hearing of the contempt proceedings till further orders. Subsequently, the Apex Court by order dated 16.8.2005 had held that Vice Chancellor, the Examination Controller as also other authorities of the University, who were not impleaded as parties to the original writ petition filed by the College in the Delhi High Court, could not be proceeded for contempt and accordingly had set aside the order of Delhi High Court dated 14.3.2005. 14. It is, however, very significant to note here that the College had also filed a writ petition under Article 32 of Constitution of India 10 before the Apex Court, W.P.(Civil) No. 375 of 2005, for permitting its students of three academic sessions to appear in the B.Ed examination of the University which however was dismissed by the same order dated 16.8.2005 by giving liberty to the College to file its writ application under Article 226 before the High Court wherein it was also observed that setting aside of notice of contempt and order dated 14.3.2005 passed by Delhi High Court issuing directions for holding examination of students of College in S.L.P. filed by the Vice-chancellor and Examination Controller of the University would not stand as a bar in the way of the College seeking same relief in a writ petition which may be filed before the High Court and the High Court would be at liberty to grant interim relief being uninfluenced by the order passed in S.L.P. No. 7354 of 2005. 15. It is again a matter of record that the writ petition filed by the College before the Delhi High Court, W.P.(C) No. 17549 of 2005 in the light of observations made by the Apex Court was also dismissed vide its order dated 9.9.2005 on the ground of territorial jurisdiction wherein it was held that the entire cause of action relating to the grievance raised therein pertaining to Lalit Narayan Mithila University, Bihar had arisen in the State of Bihar. 16. It appears that after the writ petition of the College was dismissed by the Delhi High Court, the College had moved this Court in C.W.J.C. No. 12995 of 2005 and this Court had allowed the prayer of the petitioner by an order dated 17.8.2006 by issuing a direction to the 11 appellant-University to take examination of the students of College for the Sessions 2001-02,2002-03, 2003-04 in the next forthcoming examination subject to such terms and conditions as imposed and insisted by the University. 17. The University, however on being approached by the College for compliance of the aforesaid order of this Court dated 17.08.2006 had by its letter dated 10.11.2006 had sought a number of information in writing from the College for the purpose of holding B.Ed. examination of students admitted in Sessions 2001-02,2002-03, 2003-04 in terms of its Examination Regulations, namely:- “(I) When the college advertised in news paper about admission to B.Ed. course for aforesaid sessions ? please name the paper, date of publication and also enclose the paper- cutting of the said advertisements. (2) When the entrance tests were taken ? whether the dates of tests were notified in the newspaper ? If yes, please mention the dates and clippings of the notice. (3) The answer sheets of entrance test exams. for aforesaid sessions be furnished. (4) Why the dates of admissions are not mentioned on the admissions forms ? (5) Whether the viva-voce tests of the selected students for each sessions mentioned above were conducted by the selection committee for admission comprising of:- a) Principal of the college & two senior most teachers of the college. (b) District Education Officer; (c) The Principal of state Govt. run Teacher’s Training college as required under rules framed by the Govt. of Bihar under section -5 of Bihar State Private Physical Training College & Private Teacher Training College & Private Primary School Teachers 12 training college (control & Regulation) Act, 1982 (Act, 29 of 1982)? If yes, please furnish details with signatures of the concerned authorities. (6) When did you publish the results of the entrance test for the sessions 2001-02, 2002-03 & 2003-04 ? Please furnish the information. (7) When did you take steps for registration of students of B.Ed. Course of your college for aforesaid three sessions? (8) When your Institution was de- recognized did you take admission for aforesaid 3 session of B. Ed. Course?” 18. Additionally, the University by a separate letter dated 10.11.2006 had made certain enquiries from the College as to where the students of the College of the three sessions were said to have undergone practical training. The College thus instead of submitting the required information to the University had initiated a contempt proceeding, MJC No. 2294 of 2006 in this Court alleging that the aforesaid enquiry by the University in its two letters dated 10.11.2006 were in violation of the order dated 17.8.2006 in C.W.C. No. 12995 of 2006. This Court by an order dated 11.10.2006 while hearing the aforesaid contempt petition in view of the plea raised by the University as with regard to statutory requirement of fulfilment of its Examination Regulations, had directed the College to hand over the documents and information to the Counsel for the University as required by the University in its aforesaid two letters dated 10.11.2006 for verification. It was during the pendency of this contempt application the Vice-chancellor of the University on 17.12.2006 had 13 passed a reasoned order holding that no students were admitted in B.Ed. Course in the College much less imparted training and therefore the claim of the College for allowing the students to appear in the examinations of 2001-02, 2002-03, 2003-04 Sessions was unsustainable as they did not fulfil the prescribed conditions of the Examination Regulations of the University. Let it be noted that after this order of the Vice Chancellor dated 17.12.2006 was produced before the learned single Judge hearing the contempt application, MJC No. 2294 of 2006 of the College he had dropped the contempt proceedings by an order dated 19.12.2006 wherein it was recorded as follows:- “ While complying with the Court’s order, the University found that the students of the applicant institute for the sessions 2001-2002, 2002-03 and 2003-04 cannot be allowed to appear in the forthcoming examination in as much as the terms and conditions for allowing them as imposed or insisted upon by the University have not been complied with. In those circumstances, the Court’s order has been complied with. Accordingly, the application is disposed of but with no order as to costs. The petitioner institute is aggrieved by the decision by which the University has held that the said students have not complied with the terms and conditions and provisions as are normally imposed and insisted upon by the University. In those circumstances, leave is granted to the petitioner institute as well as the students of the said sessions to take such recourse to law as they may be advised to … their grievances against the said decision of the University.” 14 19. It appears that thereafter the College had also filed a review application before the Vice-Chancellor of the University on 25.12.2006 which too was rejected by a reasoned order dated 7.2.2007 reiterating that there was no question of holding of the examination of students of 2001- 02,2002-03, 2003-04 batch of the College as they had not fulfilled the prescribed requirement of the Examination Regulations of the University. 20. It would be also useful to record here in view of the aforementioned order dated 19.12.2006 in the contempt petition, L.P.A. No. 681 of 2006 filed by the University as against the order of learned single Judge dated 17.8.2006 in C.W.J.C. No. 12995 of 2006 directing the University to hold the examination of students for the Sessions 2001- 02,2002-03, 2003-04 was withdrawn on 19.2.2007. 21. It is only thereafter two connected writ applications one by the college itself C.W.J.C. No. 5785 of 2007 on 2.5.2007 and the other by three students of the College, respondent nos. 6 to 8 to this appeal, C.W.J.C. No. 13416 of 2007 on 8.10.2007, were filed for an identical relief namely; “(i) To quash the order dated 13.12.2006 and 17.12.2006 passed by the Vice-Chancellor (Respondent No. 6) whereby he has not allowed the students of the petitioner college of the Sessions 2001-02, 2002-03 and 2003-04 to appear in the B. Ed. Examination and refused the same in illegal, mala fide and arbitrary manner (Annexure-36). (ii) To issue an appropriate writ, order or direction to quash the resolution of 15 Examination Board dated 17.2.2005 as contained in Agenda No. 5 (ii) passed by Respondent Nos. 5 to 8 (Annexure-18). (iii) To issue an appropriate writ/writs, order/orders and direction/directions in the nature of mandamus to the respondent nos. 5 to 8 to take appropriate steps to hold the examination of the students of the college/ Institution of the Sessions 2001-02, 2002-03 and 2003-04 within a shortest period and publish the result. (iv) To issue an appropriate writ/writs, direction/directions order/orders particularly against respondent nos. 6 and 7 for initiation of a contempt proceeding for overreaching the Hon’ble Court’s order and for filing a false affidavit before this Hon’ble Court in the facts and circumstances of the case. “ 22. A counter affidavit was filed on behalf of the appellant University wherein on the basis of Examination Regulation of B.Ed. examination of the University it was sought to be contended that since none of the students of the College had fulfilled the requirement of Examination regulations of the University as with regard to admission, undergoing course, completing of classes and practical training, the University had taken a conscious decision to reject the prayer of the College for allowing its students of 2001-02,2002-03, 2003-04 Sessions from appearing in the B.Ed. examination. 23. On the basis of these facts and rival contentions of the parties the learned single Judge in the impugned judgment had framed following questions:- “(i) Whether the said order of the Council dated 28.07.2004 will have prospective effect and will be operative from the year 2004 16 onwards as claimed by the authorities of the Regional Committee as well as the authorities of the University or the said order of the council dated 28.7.2004 will have retrospective effect and will be operative from the date of order of the Regional Committee i.e., 9.5.2001 which was challenged by the College before the National Council in the appeal decided by the National Council on 28.7.2004 ?. (ii)Whether in view of the final order of the National Council and the specific provisions of law, the College even though de-recognized for three years