HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. WPSS No. 1634 of 2004 Smt. Pramila Pandey Vs State and others. Approved for reporting. __________________ Not approved for reporting Date of decision 10.07.2006 Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO. 1634 (SS) OF 2004 Smt. Pramila Pandey, A/a 39 years, W/o Shri Mohan Chandra Pandey, R/o Numish Khet, Dug Bazar, Bageshwar. ………….Petitioner. Versus 1. State of Uttaranchal through Secretary Education. 2. Principal District Education and Training Institute, Didihat, District Pithoragarh. 3. Director of Basic Education, Uttaranchal, Dehradun. ……….Respondents. Dated: 10.07.2006 Hon’ble Rajesh Tandon, J. Heard Sri B.D. Upadhyay, Advocate for the petitioner and Standing Counsel for the respondents. 2. By the present writ petition, the petitioner has prayed for a writ of mandamus directing the respondents to treat the petitioner qualified for the Special B.T.C. and select her for the said course. 3. Briefly stated, the petitioner is a permanent resident of Uttaranchal and after passing post-graduation examination from the Kumaun University in the year, 1986, she obtained the degree of Shiksha Visharad from Hindi Sahitya Sammellan Allahabad through correspondence in the years 1995 and according to her the degree of Shiksha Visharad is equivalent to B.Ed. Syllabus of the University. The requirement in the advertisement is quoted below:- vfuok;Z ;ksX;rk,a& 1 - “kSf{kd& fof/k ekU;rk izkIr fo”ofo|ky; ls LukrdA 2- izf”k{k.k%& bl gsrq mRrjkapy@mRrjizns”k dh ekU;rk izkIr laLFkk }kjk laLFkkxr ijh{kkFkhZ;ksa ds :Ik esa ch0,M0@,y0Vh0 vFkok i=kpkj ds ek/;e ls ch0,M0 gsrq ekU;rk izkIr fo”ofo|ky; ls ch0,M0 mRrh.kZ fd;k x;k gksA ftUgksaus laLd`r fo”ofo|ky; ls f”k{kk 'kkL=h dh mikf/k yh gks ,oa f”k{kk 'kkL=h dh ijh{kk laLFkkxr ijh{kkFkhZ ds :Ik esa mRrh.kZ dh gks os Hkh vgZ gksaxsA mRrjizns”k ljdkj }kjk ekU;rk izkIr ,slh laLFkkvksa tks jk"Vªh; v/;kid izf”k{k.k ifj"kn }kjk ekU;rk izkIr gksa] ls 'kkjhfjd f”k{kk izf”k{k.k ;Fkk ch0ih0,M] Mh0ih0,M0] lh0ih0,M0 vH;FkhZ Hkh vgZ le>s tk,axsA blds laca/k esa mRrj izns”k 'kklu }kjk ekU; dh xbZ vof/k ¼o"kZ 1997½ rd ds ekU; dh xbZ laLFkkvksa ls mRrh.kZ laLFkkxr vH;fFkZ;ksa dks gh vgZ le>k tk,xkA 3- vk;q lhek%& vH;FkhZ dh vk;q 1 tqykbZ] 2004 dks 18 ls de o 40 ls vf/kd u gksA vkfjf{kr oxZ ds vH;fFkZ;ksa dks vf/kdre vk;q lhek esa NwV iznku dh tk,xh tks bl laca/k esa izpfyr 'kklukns”kksa ds vuqlkj vuqeU; gksxhA 4- vkosnu 'kqYd%& js[kkafdr iksLVy vkMZj@cSad MªkQ~V ds :i esa 100@& ¼lkS :i;s ek=½ ,l0lh0@,l0Vh0 ds fy, :0 40@& ¼pkyhl :i;s ek=½ 'kqYd fy;k tk;sxkk] tks izkpk;Z ftyk f”k{kk ,oa izf”k{k.k laLFkku MhMhgkV] fiFkkSjkx<+ ds in uke ls ns; gksxkA 5- vafre frfFk%& bPNqd vH;FkhZ fu/kkZfjr izk:I ij QksVks;qDr vkosnu i= ij] irk fy[kk gqvk fyQkQk jftLVªh fVdV ;qDr ¼25 X 10 lseh½ leLr 'kSf{kd o izf”k{k.k izek.ki= vad i=ksa rFkk vU; izek.ki=ksa dks Loizekf.kr izfr;ksa lfgr jftLVMZ Mkd ls vkpk;Z] ftyk f”k{kk ,oa izf”k{k.k laLFkku MhMhgkV fiFkkSjkx<+ ds irs ij foKfIr izdk”ku ds 15 fnu ds Hkhrj vo”; igq¡p tk,aA blds ckn ds vkosnu i=ksa ij dksbZ fopkj ugha fd;k tk;sxkA” 4. According to the case of the petitioner under the U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983 the courses, which are conducted by the Hindi Sahitya Sammenllan are recognized i.e. Sahitya Ratna (2 years course) from the Hindi Sahitya Sammellan, Prayag and is equivalent degree to Bachelors degree in Hindi. Shiksha Visharad equivalent to B.Ed. having not been considered, she approached to this Court under Article 226/227 of the Constitution of India. In a similar writ petition on 26.03.2004 following interim order was passed:- “Heard Sri H.M. Raturi, learned counsel for the petitioner. Sri J.P. Joshi learned Standing Counsel has accepted notice on behalf of the respondents. The respondents may file counter affidavit within four weeks. Put up thereafter. In the meantime, if the petitioner is permanent resident of Uttaranchal, the respondents shall consider the case of the petitioner provisionally for admission in special B.T.C. training course, in terms of the order dated 04.02.2004 passed by this court in W.P. No. 56/2004 passed by this court in W.P. No. 56/2004 Rashmi Thakur Vs. State of Uttaranchal and others. Put up with W.P. No. 56/2004.” 5. A counter affidavit has been filed by the Standing Counsel, where it has been stated that Shiksha Visharad has not been recognized by the Nainital Council for Teacher Education and as such the same cannot be termed as an equivalent qualification mentioned in the advertisement and the petitioners are not entitled to be selected in Special B.T.C. 6. Standing Counsel has referred procedure of the N.C.T.E. Act. The preamble of the Act is quoted below:- “An Act to provide for the establishment of a National Council for Teacher education with a view to achieving planned and co-ordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matter connected therewith. BE it enacted by Parliament in the Forty- Fourth year of the Republic of India as follows:-” 7. Section 16 of the National Council for Teacher Education reads as under:- “16. Affiliating body to grant affiliation after recognition or permission by the Council.- Notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day.- (a) grant affiliation, whether provisional or otherwise, to any institution; or (b) hold examination, whether provisional or otherwise, for a course or training conducted by a recognized institution. unless the institution concerned has obtained recognition from the Regional Committee concerned, under section 14 or permission for a course or training under section 15. 8. Section 14 of the National Council for Teacher Education Act, 1993 provides as under:- “14. Recognition of institution offering course or training in teacher education.-(1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations; Provided that an institution a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee. (2) The fee to be paid along with the application under sub-section (1) shall be such as may be prescribed. (3) On receipt of an application by the Regional Committee from any institution under sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall, -- (a) if it satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that if fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or (b) if it is of the opinion that such institution does not fulfil the requirements laid down in sub-clause (a), pass an order refusing recognition to such institution for reasons to be recorded in writing; Provided that before passing an order under sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a writer representation. (4) Every order grating or refusing recognition to an institution for a course or training in teacher education under sub-section 93) shall be published in the Official Gazette and recommunicated in writing for appropriate action so such institution and to the concerned examining body, the local authority or the State Government and the Central Government. (5) Every institution, in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of sub-section (3). (6) Every examining body shall, on receipt of the order under sub-section (4),-- (a) grant affiliation to the institution, where recognition has been granted; or (b) cancel the affiliation of the institution, where recognition has been refused.” 9. Proviso to Section 14 provides that they shall be entitle to continue such course or training for a period of six month if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee. 10. Section 17 (4) provides the contravention and consequences. Sub Clause (4) is quoted as under:- “(4) If an institution offers any course or training in teacher education after the coming into force of the order withdrawing recognition under sub-section (1), or where an institution offering a course or training in teacher education immediately before the appointed day fails or neglects to obtain recognition or permission under this Act, the qualification in teacher education obtained pursuant to such course or training or after undertaking a course or training in such institution, shall not be treated as a valid qualification for purposed of employment under the Central Government, any State Government or University, or in any school, college or to her educational body aided by the Central Government or any State Government.” 10. The said Act was made applicable from 1st July, 1995. 11. The grievance of the petitioner is that he has already qualified the course in years before 1993 and as such the said Act which was made applicable form 1st July, 1995 is not applicable with the facts of the present case. 12. The petitioner has referred Nirmal Rani (Smt.) Vs. State of U.P. and others U.P.L.B.E.C. 2000 (1) Page 86, where the Shiksha Visharad has been held to be equivalent to B.Ed. Relevant paragraph 3 is quoted below:- “3. Petitioner has passed High School and Intermediate Examinations of ‘U.P. Board, Allahabad’. She also passed ‘Madhyama’ (Intermediate level), Sahitya Ratna (B.A. Level) as well as Shiksha Visharad Examinations (said to be equivalent to B.Ed.), Teaching Training Course from Hindi Sahitya Sammelan, Allahabad. Petitioner has filed certain documents (as Annexures-I, II and III to the Writ Petition) to show that ‘Shiksha Visharad’ of Hindi Sahitya Sammelan is recognized as equivalent to B.Ed./Trained Teacher.” 13. The petitioner has also referred Act of Hindi Sahitya Sammellan. The provision of Hindi Sahitya Sammellan is quoted below:- “6 ¼Pk½ f”k{kk fo”kkjn ¼ch0,M0½ ijh{kkFkhZ dks Lukrd] e/;ek vFkok led{k mikf/k /kkjd ds lkFk 2 o’kZ dk v/;kiu dk;Z dk vuqHko gksuk pkfg,A bl ijh{kk esa fuEu 5 iz”u i= gksrs gSaA “1& f”k{kk euksfoKku rFkk “kSf{kd ewY;kadu 2& f”k{kk fl)kUr rFkk f”k{k.k fof/k;ka] 3& Hkkjrh; f”k{kk dk bfrgkl 4&LokLF; f”k{kk rFkk ikB”kkyk dk izcU/k 5& nsoukfxjh fyfi] fgUnh Hkk’kk vkSj lkfgR; dk bfrgklA bl ijh{kk dk ikB~;dze ch0,M0 ds ikB~dze ds lkekU; gksrk gSaA ijh{kkFkhZ dks fyf[kr ijh{kk ds lkFk&lkFk iz;ksxkRed ijh{kk Hkh nsuh gksxh rFkk mls 20 oknu p;fur fo’k;ksa dk f”k{k.k gsrq ikB~;kstuk rS;kj djuh gksxh ftls ijh{kk iwoZ laLFkku dk;kZy; esa tek djuk vfuok;Z gksxkA” 14. Standing counsel has referred the judgment of Shailendra Kumar Singh Vs. State of U.P. and others E.S.C. (All.J.) [2004(1)]. In the aforesaid case law, the question with regard to the applicability to the N.C.T.E. Act has not been considered, but only general proposition was considered. Relevant observations are quoted below:- “29. Before parting with the case, in order to safeguard the career of the students and to prevent them form being misled by uncrecognized degrees, the Court feels it proper to issue directions to the State Government and the National Council for Teacher Education to ensure that the Hindi Sahitya Sammelan, Allahabad which is a body constituted under the provisions of the 1962 Act, does not hold any examinations of a course of teacher training and/or grant affiliation to any institution which has not been recognized by the National Council for Teacher Education. 30. The Court further finds that the provisions of the NCTE Act are not sufficient to deal with unscrupulous person who run institutions/colleges offering unrecognized course of training in teacher education by playing with the career of innocent youths and running their life. Except under Section 17 of the NCTE Act, which deals with the contravention of the provisions o the NCTE Act and consequences thereof by only providing that the unrecognized course or training in teacher education shall not be treated as a valid qualification for the purposes of employment under the Central/State Government, there is no provision in the NCTE Act which may provide any deterrent for such an unscrupulous person. In fact, they go scot free leaving the innocent persons high and dry. Time has come for the Government of India to provide for more stringent provisions in the NCTE Act for dealing with such unscrupulous persons.” 12. The Apex Court in Suresh Pal and others Vs. State of Haryana and others AIF 1987 SC Page 2027 has observed that where it has been held that any enactment cannot be said to apply retrospectively. Relevant observations are quoted below:- “We are of the view that since tat the time when the petitioners joined the course it was recognized by the Govt. of Haryana and it was on the basis of this recognition that the petitioners joined the course, it would be unjust to tell the petitioners now that though at the time of their joining the course it was recognized, yet they cannot be given the benefit of such recognition and the certificates obtained by them would be futile, because during the pendency of the course it was derecognized by the State Govt. on 9th January, 1985. We would, therefore, allow the appeal and direct the State Govt. to recognize the certificates obtained by the petitioners and others similarly situate as a result of completing the certificate course in Shri Hanuman Yayayam Prasarak Mandal Amravati for the purpose of appointment as Physical Training Instructor in Govt. Schools in Haryana. Of course, if any person has joined the certificate course after 9th January, 1985 he would not be entitled to the benefit of this order and any certificate obtained by him form the said Institute would be of no avail.” 13. In State of Mararashtra Vs. Sant Dnyaneshwar Shikshan Sanstra Mahavidyalaya & Ors. 2006 AIR SCW 2048, the three Judge Bench of the Apex Court has held as under:- “72. It is thus clear that the Central Government has considered the subject of Secondary Education and Higher Education at the national level. The Act of 1993 also requires Parliament to consider Teacher Education System ‘throughout the country.’ NCTE, therefore, in our opinion, is expected to deal with applications for establishing new B.Ed. colleges or allowing increase in intake capacity, keeping in view 1993 Act and planned and co-ordinated development of teacher-education system in the country. It is neither open to the State Government nor to a University to consider the local conditions or apply ‘State Policy’ to refuse such permission. In fact, as held by this Court in cases referred to hereinabove, State Government has no power to reject the prayer of an institution or to overrule the decision of NCTE. The action of the State Government, therefore, was contrary to law and has rightly been set aside by the High Court.” 17. In Mohd. Sartaj and another Vs. State of U.P. (S.C.) [2006 (108) FLR 847], the Apex Court has held as under:- “The minimum qualification prescribed under Rule 8 should be fulfilled on the date of recruitment. Equivalence of degree of Moallim-e-Urdu, Jamia Urdu Aligarh with that of B.T.C. in the year, 1994 would not entail the benefit to the appellants on the date they were appointed. The appellants could not have been appointed to the post of Assistant Teachers without having training required under Rule 8. That being the case, the appointments of the appellants were de hors the Rules and could not be treated to be continued. For the aforesaid reasons, we do not find any substance in the appeals and are, accordingly, dismissed. However, in the circumstances of the case, there shall be no order as to costs.” 18. In R.N. College, Meerut Vs. Chancellor, B.R. Ambedker University, Lucknow and others 2006 (2) ALJ 721 (D.B.), it has been held as under:- “There is no provision under the Act by means of which an inference could be drawn that once the recognition is granted, the affiliation has to follow automatically. In the instant case, the Recognition was granted subject to affiliating university ensuring the appointment of thue teachers as per norms of NCTE.UGC/Affiliating University amongst other things. Thus, according to recognition order itself the matter for affiliation of the college with the university was to be examined by Chancellor/Vice Chancellor before grant of affiliation. The affiliation of a college is for the purpose of holding examination of the candidates while the recognition of an institution is for other purpose. When matter of affiliation has to be considered by University, it cannot be expected to act ion mechanical manner without application of mind. ‘Recognition’ and ‘affiliation’ are two differed and independent things. Thus, the plea cannot be accepted that affiliation by university after recognition by NCTE is to follow as a natural consequence.” 19. Relying upon the judgment Krishnasamy reddiar Educational Trust v. Member Secretary National Council for Teacher Education and another, (2005) 4 SCC 89 in National Council for Teacher Education & another Vs. Committee of Management & others, 2006 AIR SCW 1333, the apex Court has held as under:- “18. We may notice that a Division Bench of this Court in Krishsamy Reddiar Educational Trust v. Member Secretary, National Council for Teacher Education and another, reported in (2005) 4 SCC 89, opined that: “It was submitted that in the present matters, all the appellants were applying for the first time and as such they were required to follow the Regulations in force, operative and applicable to fresh applications. In such cases, Notes (1) and (2) of Appendix 1-B (list of essential documents) will apply. Notes (1) and (2) read thus: (1) If the application is found incomplete i.e. with all the essential documents, the institution may be asked to make good deficiencies in the application on or before the last date prescribed in the Regulations. (2) In the even when deficiencies in an application get removed only after the last date, the application of the institution shall be carried forward by the Regional Committee for consideration for the subsequent academic year i.e. for the course that would be offered one year later.” In our view, the respondents are right in submitting that there was delay on the part of the appellants. In all the three cases, applications were submitted without NOC from the State Government. It has come on record that NOC was applied for belatedly. The State Government could not be blamed for not taking a decision on the applications of the appellants as under Regulation 6 as amended in 2003, it was required to dispose of such applications within six months of the last date of receipt of applications. Even prior to the amended Regulation 6, it was expected to take decision within “reasonable time” (four months) as held in St. Johns Teachers Training Institute. As the appellants applied for NOC in the last week of October, 2003, they cannot make complaint that the State Government delayed the matter. Admittedly, NOCs were submitted to the respondent after the last date of application., If in the above facts and circumstances, recognition has been granted by the respondent on 28-10- 2004 by imposing a condition that it would be operative from academic year 2005-2006, it cannot be said that the respondent had acted illegally, arbitrarily or otherwise unreasonably.” 21. Before parting with this case, we may place on record that it is categorically stated before us by Mr. Raju Ramchandran that the Council carried forward the application of the Institution for consideration of the subsequent academic year. An inspection has already been carried out and the eligibility of the first respondent to obtain such recognition shall be determined within a period of eight weeks from date. We place on record the aforementioned submissions of the learned senior counsel appearing on behalf of the appellant.” 20. The petitioner has obtained the degree of Shiksha Visharad before 1995, when the N.C.T.E. Act was not in force i.e. before 1st July, 1995. 21. In view of the above, National Council for Teacher Education Act being not in existence at the relevant time, approval/recognition of the Institution from N.C.T.E. was not required. 22. Sri Sudhir Singh, Advocate for the National Council for Teacher Education has orally submitted that NCTE has been established under an Act of Parliament on August, 17th 1995 and has become empowered to recognize teacher education institutions from the session 1996-1997 and therefore, the candidates, who have been awarded degree diploma certificate etc. prior to this date by Universities / State Govt. may be got verified from the concerned University/State Govt. or association of Indian University. 23. Subject to the restrictions imposed by the National Council for Teacher Education Act, 1993, petitioner has obtained the degree of Shiksha Visharad in the year, 1995 equivalent to B.Ed are entitled to be considered for special B.T.C. provided the recognition and verification is obtained from the concerned University/State Govt. or the institution concerned regarding their concerned degree. 24. Subject to the verifications as stated above, writ petition is allowed. No order as to costs. (Rajesh Tandon, J.) 10.07.2006 Rathour