1 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER (1) Shri Ana Sagar STC College and another Versus Union of India and others (S.B. CIVIL WRIT PETITION NO.11699/2008) (2) Varsha Education Society (Regd.) Versus N.C.T.E. and others (S.B. CIVIL WRIT PETITION NO.12048/2008) (3) Neelkanth Education Society Versus N.C.T.E. and others (S.B. CIVIL WRIT PETITION NO.12050/2008) (4) Bhanwar Kanwar Sujan Shiksha Mahavidyalaya Versus Union of India and others (S.B. CIVIL WRIT PETITION NO.11700/2008) (5) Shri Shyam Shiksha Prashikshan Sansthan & anr. Versus Union of India and others (S.B. CIVIL WRIT PETITION NO.11701/2008) Date of order ::: March 05,2009 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr.S.M.Mehta, Sr.Advocate with Mr.S.Pathak and Ms.Sonia Shandilya, for the petitioner, Mr.Alok Sharma with Mr.P.C.Sharma, for the petitioner Mr.Govind Rawat on behalf of Mr.Kamlakar Sharma, for the Union of India Mr.Raju Ramchandran, Sr.Advocate with Mr.Sanjay Pareek, for the NCTE Mr.I.R.Saini, Addl. AG with Mr.Lokendra Singh REPORTABLE BY THE COURT (1) By these writ petitions, the petitioners are challenging the withholding of recognition of S.T.C./B.Ed. by the National Council for Teachers Education (in short `N.C.T.E.'). (2) Out of the aforesaid writ petitions, in 2 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) S.B.C.W.P.No.12050/2008 Neelkanth Education Society V. N.C.T.E. special leave petition was filed against the interim order dated 27.11.2008 wherein the Supreme Court on 30.1.2009 requested the High Court to dispose of the writ petition as expeditiously as possible and it was directed that pending disposal of the same, the interim order passed by the High Court shall not be given effect to. (3) In view of the above, all the connected cases have been clubbed together and are being decided together. (4) By all these writ petitions, the petitioners are seeking appropriate writ, order or direction for release of the recognition order for the year 2008-2009 which was withheld by the respondent N.C.T.E. vide its meeting dated 20-21st September, 2008 on the ground of some objections of minor nature whereas recognition orders were issued in respect of 80 colleges. The petitioners have prayed for issuance of mandamus to release the recognition order. (5) It is also pertinent to mention here that on 24.10.2008 when a submission was made by the counsel for the N.C.T.E. that the next meeting is scheduled to be held on 31.10.2008, interim orders were passed to allow the petitioners for participation in the counselling on provisional basis subject to the decision of the writ petition and the cases of the petitioners were directed to be considered even after 31.10.2008 from the waiting list in case approval is granted by the N.C.T.E. 3 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) (6) It is further relevant to mention here that in one of the writ petitions – SBCWP No.11699/2008 Shri Ana Sagar STC College V. Union of India and others, there was direction of the Delhi High Court to try to dispose of the application by 7.9.2008 but the order was not issued even after the meeting dated 20-21st September, 2008 although recognition for STC was granted to the 80 colleges. (7) The leading facts are taken from SBCWP No.11699/2008 Shri Ana Sagar STC College V. Union of India and others wherein there are some additional facts of Delhi High Court judgment dated 1.8.2008 in W.P.(C) No.5252/2008 Shri Aanasagar STC College V. N.C.T.E. (8) The petitioner Institution was granted recognition for STC for the academic session 2007-2008 vide order dated 12.10.2007. On 19.2.2008, the petitioner applied for recognition of the additional intake of students for STC. When the recognition was not granted, the petitioner Institution filed Writ Petition No.5252/2008 before the Delhi High Court and the respondents were directed to try to dispose of the application by 7.9.2008 so that the academic session may be started. On 8.8.2008, the petitioner Institution submitted representation for grant of recognition. On 5.9.2008, the letter of intent seeking consent from the petitioner Institution for inspection was issued and the respondents sought certain information regarding approval as to the plans, FDR, affidavit and details of the website along with mandatory disclosure 4 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) form. On 8.9.2008, a letter was issued by the respondents to carry out inspection which was carried out. The matter of the petitioner Institution was placed in the 132nd meeting of the N.R.C. (Northern Regional Committee). After inspection, the orders granting approval to about 80 colleges were issued under Regulation No.7(9) and 7(11) of the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 (in short `the Regulations of 2007'). Although the petitioner Institution fulfilled all the requirements but its name was not mentioned in the list of 80 colleges which was published on Internet. On enquiry, the petitioner Institution came to know that although recognition was granted but the formal orders were withheld. Thereafter, notice of demand for justice was given but no heed was paid and the petitioner Institutions were discriminated. (9) The writ petition was filed on 20.10.2008 and on 22.10.2008, the notices were given Dasti. Subsequently, counsel appeared for the parties on 24.10.2008 and it was submitted by the counsel for the petitioner Institution that the objections of minor nature regarding submission of affidavit on Rs.100/- stamp paper and similar nature were raised which were also fulfilled, but till today no approval has been communicated with the result, the petitioner Institution will not be able to take students from the counselling commencing from 31.10.2008. In the aforesaid facts and circumstances of the case, the aforesaid interim order was 5 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) passed on 24.10.2008 (10) At this stage, an additional affidavit dated 10.11.2008 was filed by the counsel for the petitioner Institution in SBCWP No.11699/2008 Shri Ana Sagar STC College referring in paras 4 and 5, the decision of the N.C.T.E. in the meeting dated 31.10.2008 which is as under: “4. That it is submitted that in the meeting dated 31.10.2008, the case of the petitioner was considered and it was decided by the committee that the recognition order be issued to the petitioner immediately for the academic session 2008-09. 5. That the petitioner has been informed that the decision to issue the recognition order for academic session 2008-09 has been taken in favour of the petitioner and the committee has decided as under: “In compliance to the orders of the Hon'ble High Court of Rajasthan in Writ petition No.12050/2008, 12048/2008, 16699/2008, 11700/2008, 11701/2008, in the matter of Neelkanth Education Society, Varsha Education Society, Shri Ana Sagar STC College, Kota, Banwar Kanwar sujan Shiksha Mahavidyalaya and Shri Shyam Shiksha Prashikshan Sansthan, Distt. Hanumangarh, Rajasthan, the cases hereby cleared and decided as, where 7(11) are there the recognition order be issued immediately for academic session 2008-09 and where 7 (9) are there as soon as the required documents are submitted the 7 (11) be issued for the academic session 2008-09” (11) The respondents have filed reply on 14.11.2008 only in SBCWP No.12048/2008 Varsha Education Society V.N.C.T.E. and submitted therein that the N.C.T.E. has promulgated the Regulations, 2007 vide notification dated 27.11.2007 which came into force w.e.f. 10.12.2007 with the publication in the gazette and further submitted that on 11.9.2008, the petitioner Institution was inspected by the expert who submitted report on 15.9.2008 and the matter of recognition to the petitioner Institution was placed in the 132nd meeting held on 20-21.9.2008. It transpired that vide notification 6 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) dated 1.7.2008 Clause 5(4) and 5(5) of the Regulations, 2007 have been amended and as per the said amended Regulations, recognition cannot be granted to the petitioner Institution for the academic session 2008-2009 as inspection of the petitioner Institution was carried out after 31.8.2008. It is also mentioned in the reply that the recognition cannot be claimed as a matter of right but the said reply is silent about the proceeding dated 31.10.2008. (12) In the aforesaid facts and circumstances, on 18.11.2008, the counsel for the respondent NCTE was given time to file counter affidavit to the additional affidavit more particularly to para 5 of the additional affidavit wherein the order of grant of recognition in compliance to the interim order dated 14.10.2008 has been mentioned. (13) On 21.11.2008, Mr.Pareek brought to the notice of this Court interim order of the Supreme Court dated 26.9.2008 arising out of the same set of litigation decided by the Delhi High Court on 25.7.2008 which has been relied while passing the order dated 1.8.2008 according to which, “until further orders, it is directed that if pursuant to the impugned order recognition has not been granted as yet, the same shall not be granted” but no specific answer was given as to what happened to the order of the Delhi High Court dated 1.8.2008 which is on record as Annexure-1, therefore, time was granted to both the counsel to verify whether any special leave petition has been filed against the decision dated 7 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) 1.8.2008 in Writ Petition No.5252/2008 and if filed, then the present position be also ascertained. The date of the order passed by the Delhi High Court has been wrongly typed in the order sheet as `5.8.2008' whereas in fact it is `1.8.2008'. (14) On 27.11.2008, counsel for the petitioner Institution brought to the notice of this Court that although SLP was filed against the order dated 1.8.2008 but on 24.10.2008 the same was withdrawn by the respondent with liberty to file appeal before the Division Bench of the Delhi High Court. In such circumstances, the following interim order was passed on 27.11.2008 in SBCWP No.11699/2008 Shri Ana Sagar STC College and another V. Union of India and others. Similar orders were passed in other connected writ petitions – SBCWP No.12050/2008, 12048/2008, 11700/2008 and 11701/2008. “....... In view of the above, the respondents are directed to issue approval letter (sanction) in compliance to the Meeting dated 31 st October, 2008 and further the other respondents are directed to allot the students in respect of the seats, which have been approved by NCTE regarding STC Course, as per said approval from the waiting list.” (15) Against the said order dated 27.11.2008, SLP was filed and the Supreme Court passed order for hearing the writ petitions on 27.1.2009. The said order of the Supreme Court dated 27.1.2009 was produced before this Court and the hearing of the case was started on 30.1.2009 but the respondent still insisted the fact that the petitioner Institution is not entitled to recognition as the inspection of the 8 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) petitioner Institution was carried out after 31.8.2008 i.e. the cut off date fixed by the amended Regulations,2007. (16) The three detailed orders dated 2.2.2009, 6.2.2009 and 20.2.2009 passed by this Court on taking note of all the aforesaid facts have some relevant bearing on the controversy in issue. The aforesaid three orders are as under: “2.2.2009 Counsel for the petitioners in Writ Petition No.11699/2008 Shri Anasgar STC College V.Union of India and others and other connected writ petitions submit that this Court has taken note of the fact in the order of this Court dated 24.10.2008 that in 132 nd meeting of the N.C.T.E. held on 20-21 st September, 2008, objection of minor nature regarding submission of affidavit on Rs.100/- stamp paper or of similar nature were raised which were also fulfilled later on but till today, no order of approval has been communicated with the result that the petitioners will not be able to take students from the counselling commencing from 31 st October, 2008. On the same day, Mr.Sanjay Pareek, appearing for the respondents No.3,4 and 5, office bearers of the N.C.T.E. submitted that the next meeting was scheduled to be held on 31.10.2008. Subsequently, on 18.11.2008, the petitioner filed in S.B. Civil Writ Petition no.11699/2008 an additional affidavit wherein the decision of the approval taken by the N.C.T.E. in its meeting held on 31.10.2008 in respect of the petitioners Institutions has been reproduced in para No.5. Therefore, Mr. Sanjay Pareek sought time to file counter affidavit to the said additional affidavit, more particularly, to para 5 of the additional affidavit, but no counter affidavit was filed. On 21.11.2008, another issue was raised by Mr.Sanjay Pareek that in same set of litigation in Writ Petition No.1119/2008 decided by the Delhi High Court on 25.7.2008 the Supreme Court has issued interim orders on 26.9.2008 to the effect that “until further orders, it is directed that if pursuant to the impugned order recognition has not been granted as yet, the same shall not be granted” but the same was not brought to the notice of the Court on 24.10.2008, therefore, one week's time was granted to the parties 9 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) whether any Special Leave Petition has been filed against the Delhi High Court judgment dated 1.8.2008 passed in Writ Petition No.5252/2008. On 27.11.2008, Mr.Mehta brought to the notice of the Court that Special Leave Petition (Civil) No.25456/2008 (NCTE V. Shri Anasagar STC College) was filed before the Supreme Court and vide order dated 24.10.2008, the same has been allowed to be withdrawn after some arguments with liberty to file appeal before the High Court but no appeal has been filed before the Division Bench of the Delhi High Court against the order dated 1.8.2008. In the aforesaid cases, interim orders were passed by this Court on 27.11.2008 directing the respondent-NCTE to grant approval(sanction) in compliance of the meeting dated 31.10.2008 and further directed the other respondents to allot students in respect of the seats which have been approved by the NCTE. Out of the aforesaid writ petitions, in writ petition no.12050/2008, on filing of the copy of the order passed in the special leave petition pursuant to the order of the Supreme Court dated 27.1.2009 in Special Leave to Appeal (Civil) No.930/2009 and connected special leave petitions arising out of the interim order dated 27.11.2008, this Court passed the following order on 30.1.2009 and heard the arguments in part :- “In this case and other connected cases,N.C.T.E. has filed Special Leave Petitions against the respective orders and while disposing of the Special Leave Petition (Civil) No.930/2009 National Council for Teacher Edu. & anr. V. Dhattarwal Edu.Society (Regd.) & ors. and other connected Special Leave Petitions, the Supreme Court has passed the following order on 27.1.2009: “Learned counsel appearing on behalf of the respondents in these petitions stated that they shall not press for implementation of the interim orders passed by the High Court during the pendency of the writ petitions, which have been directed to be listed on 30 th January, 2009. Learned counsel appearing on behalf of the petitioners stated that his clients undertake not to take adjournment in the writ petitions, which have been fixed for 30 th January, 2009. In view of the stand taken on behalf of the parties, the High Court is requested to dispose of the writ petitions as expeditiously as possible and it is directed that pending disposal of the same, interim order passed by the High Court shall not be given effect to. 10 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) With the aforesaid directions, the special leave petitions are, accordingly, disposed of.” Today, when the case was taken up, during the course of hearing, it was brought to the notice of the Court that the respondent Union of India has not been served. Mr.Alok Sharma submits that copy of the writ petition for the Union of India has already been given to Mr.Kamlakar Sharma. Thus, service is complete. Mr.Kamlakar Sharma is prepared to argue the case. Arguments heard in part. List on 2.2.2009 for further arguments after showing name of Mr.Kamlakar Sharma, counsel for the Union of India, in the cause list.” The similar type of order to the effect of service and argument was passed in other connected writ petitions. Mr.Sanjay Pareek submits that he is prepared to file counter additional affidavit and he will also apprise the Court about the fact whether any appeal was filed before the Delhi High Court against the judgment dated 1.8.2008 or not and if filed, then with what result, and further, he will also file copy of the decision taken in the meetings held on 20/21.9.2008 and 31.10.2008 in respect of the petitioners-institutions. The counsel for the petitioners reassert that the cut-off date for recognition/permission to start Teacher Training Course for the current academic session i.e.2008-09 fixed as 31.8.2008, shall not be applicable as the N.C.T.E. granted recognition to 80 colleges in its meeting held on 20/21.9.2008 but not to petitioners-institutions resulting into discrimination. Otherwise also, the same has become arbitrary on consideration of the facts and circumstances narrated in the writ petition and mentioned hereinabove. The counsel for the NCTE submits that they are bound by the said notification dated 1.7.2008 whereby clauses 5(4) and 5(5) of the NCTE (Recognition Norms and Procedure) Regulations, 2007 have been amended and the cut-off date for recognition for the academic session 2008-09 was fixed as 31.8.2008. List on 3.2.2009 for further arguments. 11 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) The photo copy of this order be placed in each file.” Order dated 6.2.2009 “During the course of arguments, counsel for the petitioners submits that they have not challenged the relaxation letter dated 25 th of September 2008 (Annexure-R/7) along with replies whereby in direction No.2 was that NCTE Headquarter Letter dated 16 th September 2008 clarified that cases where inspection have been completed by 31 st of August 2008 and which could not be considered by NRC due to paucity of time (and were deferred) may be given recognition from 2008-09. It is not disputed by the counsel for the petitioners that the 80 colleges were granted recognition by the N.C.T.E. in its 132 nd Meeting dated 20-21 September, 2008 and the date of inspection has not been shown in the attach list of Institution considered by the NRC in its aforesaid 132 nd Meeting. In such circumstances, I deem it proper to direct the respondents to furnish the list of the 80 colleges along with date of receipt of application, completion of formalities of application, the date of inspection etc. The petitioners are also at liberty to file the combined list in all these cases with regard to their application, date of completion of formalities and then first request made by them for inspection as well as the inspection carried out before the NCTE. Put up for further arguments on 11.02.2009.” Order dated 20.2.2009 “Along with the affidavit filed by the NCTE in compliance to the order dated 6.2.2009, two documents (Anx.R-10 and Anx.R-11) have been filed but in the entire affidavit, it has not been made clear whether the recognition has been granted to the Colleges mentioned in Annexure R-10. Mr.S.M.Mehta, appearing for the petitioner institutions along with Mr.Alok Sharma has filed a list wherein he has referred some of the Colleges whose inspection was carried out after 31.8.2008 and they have been granted recognition. Counsel for the N.C.T.E. is directed to file specific affidavit on the issue whether the recognition 12 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) was granted to the Colleges whose names are mentioned in Annexure R-10 and that in the list of colleges submitted by counsel for the petitioner, no inspection was carried out after 31.8.2008 and further recognition was granted. Put up on 25.2.2009 along with connected cases.” (17) Submission of counsel for the petitioner Institutions is that the petitioner Institutions are similarly situated to 80 institutions to whom the recognition was granted in the meeting dated 20-21.9.2008 and cases of some of the petitioner Institutions are on better footing than those institutions, on account of filing applications on earlier point of time but still the petitioner Institutions have been discriminated on the ground of inspection being carried out after 31.8.2008. Counsel further submit that out of the 80 institutions, there were thirteen institutions wherein the inspection was carried out after 31.8.2008 but still those institutions have been granted recognition and further the students have been admitted and studies in the respective institutions are going on. It is also submitted on behalf of the petitioner Institutions that fixation of the date 31.8.2008 is a fortuitous circumstances as to carry out inspection even after completion of the formalities is in the hand of the respondents or availability of the members of the inspection team but anyhow, inspection of their institutions was completed before 20-21/9/2008, therefore, the date of meeting is crucial for the purpose of deciding the issue of recognition and further, there is no justification to withhold 13 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) the recognition order on minor deficiency like undertaking on Rs.100/- stamp paper or other minor objection of similar nature. It was also permissible for the respondents to grant provisional recognition in such type of cases so that the Institutions may participate in the counselling which was again started on 31.10.2008 and ended on 15.1.2009. Lastly, it was submitted on the basis of the aforesaid facts that the impugned orders are violative of Article 14 of the Constitution of India on account of treating the petitioner Institutions differently at least from the thirteen Institutions whose cases were at par with the petitioners. (18) Counsel for the respondents initially contended that as per Annexure R-7 dated 25.9.2008, the date 31.8.2008 has been fixed as the cut off date of inspection for the purpose of grant of recognition but when the respondents were confronted that thirteen Institutions have been granted recognition, the counsel submitted that although illegality has been committed by them but the same cannot be allowed to be perpetuated by granting recognition to the petitioner Institutions. (19) Ultimately, the arguments were concluded on 25.2.2009 when the respondents admitted that they have granted recognition to the thirteen Institutions whose inspection was carried out after 31.8.2008. The list of the aforesaid thirteen colleges whose inspection was carried out after 31.8.2008 and recognition has been granted, is 14 CWP No.11699/2008 Shri Anasagar STC College V.State (5.3.2009) mentioned in para 4 of the additional affidavit dated 25.2.2009 filed by the N.C.T.E. However, the respondents have submitted that the recognition has been granted to the aforesaid Institutions as per the Delhi High Court order dated 1.8.2008 without specifying number and title of the writ petition. Paras 4 and 5 of the additional affidavit dated 25.2.2009 filed by the N.C.T.E. are as under: “4. It is submitted that no recognition has yet been granted to the colleges mentioned in Annexure R-10. So far as following colleges are concerned, recognition was granted in the month of September, 2008 for the session 2008-2009:- S.No . File No. Name of Institution Date of inspection Date of recognition 1. HR- 1706 Kinder Kin College of Education,Haryana 9.9.2008 15.9.2008 2. HR- 1748 Sivalik College of Education,Haryana 9.9.2008 15.9.2008 3. HR- 1704 GDR College of Education,Haryana 9.9.2008 15.9.2008 4. HR- 1746 Ch.Matu Ram College of Education, Haryana 9.9.2008 15.9.2008 5. HR- 1747 Gyan BhartiSikshi Samiti,Harayana 8.9.2008 15.9.2008 6. HR- 1744 Budha College of Education, Haryana 8.9.2008 15.9.2008 7. HR- 1750 Ch.R.R.Memorial College of Education,Haryana 6.9.2008 15.9.2008 8. HR- 1745 Maharaja Agrasain College of Education, Haryana 5.9.2008 15.9.2008 9. HR- 1669 Dharam College Education, Haryana 9.9.2008 15.9.2008 10. HR- 1751 Mahabir College of Education for Women, Haryana 10.9.2008 15.9.2008 11. HR- 1705 Rao Mohan Singh College of Education 10.9.2008 15.9.2008 12. UP-3032 Abhinav Sewa Sansthan Mahavidyalaya, Kanpur (UP) 10.9.2008 25.9.2008 13. RJ-2148 Ganesh College of Education, Jhunjhunu 10.9.2008 19.9.2008 5. That the recognition to the aforesaid colleges were granted in compliance of directions given by Hon’ble Delhi High Court. The operative part of directions of Hon’ble Delhi High Court is reproduced as under: “Counsel for the petitioners points out that in case the recognition is not granted by 16.9.2008, the petitioner would not be in a position to admit students in