1. THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA Shiva Kirti Singh,J. The order dated 06.12.2006 whereby a learned single Judge of this Court dismissed writ petition preferred by the appellants bearing CWJC No. 11428 of 2006 in limine on the ground of delay, latches, negligence and acquiescence is under challenge in the Letters Patent Appeal which has been heard together with a connected writ petition.
2. The writ petition has been preferred by the Principal of the Institution which is appellant no.1 in the appeal, challenging a letter bearing no. 90 dated 09.04.2009 issued by the Home Resources Development, Government of Bihar whereby an earlier departmental letter contained in Memo No. 254 dated 04.09.1997 (Annexure-3 to the writ petition and Annexure-4 to the L.P.A.) under which the Institution/College was granted recognition, has been cancelled on the ground that the recognition was granted contrary to bar created by Section 16 of the National Council For Teacher Education Act, 1993 (NCTE Act, 1993). As per the writ petitioner, the impugned order dated 09.04.2009 is misconceived and against the principles of natural justice because it was issued without any notice or opportunity of hearing to the petitioner. The main issues arising for determination in the appeal as well as in the writ petition are same and relate to the same Institution/College, hence both were heard together and shall be disposed of by this common judgment and order.
3. The prayer in the earlier writ petition leading to the Letters Patent Appeal was for a direction to the respondent, Bihar School Examination Board to hold Primary Teachers Training Examination of the students of Dr. Zakir Hussain Primary Teachers Education College (hereinafter referred to as 'the College') for academic sessions 1984-86 to sessions 1994-96 after issuing examination forms, admit cards and to publish their results. The main averments in the writ petition were to the effect as follows.
Sultanganj area in the town of Patna is thickly populated by Muslim community who established a registered society for promoting education amongst the Muslim society. The society established Dr. Zakir Hussain Primary Teachers Education College, Sultanganj, Patna, the appellant no.1 in the yerar 1975 and applied to the Director, Research and Training, Government of Bihar for grant of recognition. The College admitted students but since no reply was given to the application for recognition, it preferred three writ petitions during the years 1983 to 1985 for grant of recognition to the College and to permit their students to appear in the Primary Teachers Training Examination. Those writ petitions were disposed of by judgment/ order dated 28th January 1993 (Annexure-1 to the appeal). The State Government was directed to dispose of the application for recognition within three months. The students had allegedly completed their course as per syllabus for the academic sessions in question but no examination was taken by the Bihar School Examination Board(hereinafter referred to as 'the Board') in spite of representations. In the meantime NCTE Act 1993 came into force w.e.f. 17th August 1995. The Institution, in view of provisions of the Act did not admit any student than those who had already been admitted for the sessions 1994-1996. According to appellants, the authorities delayed the decision in spite of judgment and order dated 28.01.1993 but ultimately vide letter contained in Memo No. 67 dated 26th April 1995 issued under the signature of Director, Research and Training, Government of Bihar, Patna granted approval/recognition for the sessions 1979-1981 to 1994- 1996. That letter is Annexure-2 to the appeal. Through letter bearing no.24 dated 06.02.1997 the Director informed the Secretary of the Board that State Government had granted recognition to 14 Institutions and the enclosed list included the name of the appellant Institution at Serial No.12 showing recognition from 1979-81 to 1994-1996. Again by a letter bearing Memo No. 254 dated 04.09.1997 (Annexure-4 to the appeal), a Deputy Secretary in the Department of Secondary, Primary and Adult Education Department, Bihar informed the Secretary of the appellant no.1 that in the light of High Court's order dated 28.01.1993 (Annexure-1), the State Government had granted recognition to the appellant- College for the sessions 1979-81 to 1994-1996. Strangely, this letter mentioned in Paragraph-2 that in the light of the present order the earlier order bearing no.67 dated 26.04.1995 (Annexure-2) had been superseded. In the copy addressed to the Secretary of the Board a direction was given to publish the result of the examination held for the Sessions 1979-1981 to 1983-1985 .
4. The fate of the students for the remaining Sessions i.e., 1984-1986 till 1994-1996 remained hanging for which no examination was being taken by the respondent-Board. Hence, the writ petition no. 11428/2006 was preferred by the appellants but the same was dismissed summarily on the ground of delay etc. without going into merits and without there being any counter affidavit on behalf of respondents.
5. While Letters Patent Appeal was still pending for admission, an Advertisement No. 10/2007 was issued by the Board for the relevant Sessions. A learned vacation Judge considered the relevant facts and noticing that the Board had published Advertisement for holding Teacher's Training Examination after a long gap of about two decades and that the State Government had granted recognition through Annexure-2 dated 26.04.1995 for the Sessions in question prior to coming into force of the NCTE Act, 1993, allowed the students to submit fees and forms and to appear in the ensuing Teacher's Training Examination by order dated 13.06.2007. However, the result of the students was made subject to the result of the L.P.A. It is useful to extract the interim order dated 13.06.2007 which runs as follows:-
"Having heard counsel for the appellants, the State and the Bihar School Examination Board, Patna (hereinafter referred to as "the Board") and having considered the contents of the orders of the State Government bearing Memo No. 67 dated 26.04.1995, as contained in Annexure-2, whereunder appellant institution was allowed recognition for undertaking Teachers Training Course for the period 1979-81 till 1994-96, which is prior to coming into force of the National Council for Teachers Education Act, 1993 which came into force with effect from 17.8.1995, I direct that genuine students of the aforesaid institution be permitted to submit their fees and forms in response to the advertisement no.10 of 2007 issued by the Board for the aforesaid sessions for which recognition was allowed by the State Government, within one week from today. In terms of the submission of the fees and forms, they should be allowed to appear in the ensuing Teachers Training Examination. The result of those genuine students shall, however, be subject to the result of this L.P.A. The cases of the genuine students should be forwarded by the competent authority of the State Government. Aforesaid interim order has been passed taking into account the dictum laid down by the Division Bench of this Court in the case of B.N.Mandal University v. Md. Mustaque Alam & Ors, reported in 2003(4) PLJR 197 as also the fact that the advertisement no. 10/07 for holding the Teachers Training Examination by the Board has been published after a long gap of about two decades. Put up for admission after summer vacation.
6. This L.P.A. was heard and dismissed by judgment and order dated 26.03.2008 passed by a Division Bench of this Court.
7. The Division Bench also took the view that the writ petition suffered from latches and inordinate delay as it was filed in the year 2006 when the last sessions for which examination was prayed for was of the year 1994-96. It also decided against publication of result of the students who had taken examination pursuant to interim order dated 13.06.2007. The Division Bench declined to go into the merits of a submission that judgment and order dated 23rd March 2005 in CWJC No.3794/2004 preferred by a student of the Institution suffered from an error apparent on record inasmuch as the coming into effect of NCTE Act of 1993 was wrongly taken as 30th December 1993 whereas in fact the date should have been 17th of August 1995. The Division Bench held that such an issue could have been raised by the appellants only by making a direct challenge to judgment and order dated 23rd March 2005 because representing the Institution they were expected to know about that judgment dismissing a writ petition filed by a student of the Institution.
8. The appellants challenged the judgment and order passed in the present L.P.A. dated 23rd June 2008 as well as the order dated 25.07.2008 dismissing MJC No.1590/08 filed for recalling the order dated 23.06.2008 leading to Civil Appeal Nos. 8239-8240 of 2009 before the Apex Court. At the Special Leave stage itself, I.As were filed which were disposed of on 21.11.2008 with a direction to the respondent-Board to publish the results of the students of the appellant College who had completed the course before 17.08.1995 subject to the result of petitions for Special Leave to Appeal Nos. 19147-19148 of 2008. As noticed above, the Special Leave Petitions were allowed leading to Civil Appeal Nos. 8239- 8240/2009. It is relevant to extract aforesaid order of the Supreme Court dated 21.11.2008 which runs as follows:- " Upon hearing counsel the Court made the following
O R D E R
It is sated that the petitioner College was retrospectively granted recognition for the period 1979- 81 to 1994-96 and that the High Court had also permitted its students to take the examinations on 13.06.2007. It is admitted that so far as the period 1979-81 to 1994-95, NCT had no role to play. Therefore, there shall be an interim direction to the third respondent Board to publish the results of the students of the petitioner College who had completed the course before 17.08.1995, that is during 1979-81 to 17.08.1994 subject to the result of this petition. IA Nos. 3 & 4 are disposed of accordingly.
9. The aforesaid appeals were finally disposed of by the Apex Court on March 16, 2010. In paragraph-8 of that judgment the Supreme Court noticed the relevant facts including the fact that Board had not held the examinations for the last two decades and came to conclusion that the writ petition ought not to have been dismissed on the ground of delay and latches and ought to have been considered on merits.
10. The matter was remitted back to this Court and not finally decided on merits by the Apex Court only because learned counsel for the Board submitted that the Board did not get opportunity to file its counter affidavit before the High Court as the writ petition was dismissed mainly on the ground of delay and latches. The Apex Court was incorrectly informed that the counter affidavit by the Board was filed for the first time only before that Court enclosing a copy of order dated 09.04.2009 which is under challenge in CWJC No. 5642 of 2009. The records show that although no counter affidavit was filed before the learned single Judge but a counter affidavit on behalf of the Board was filed in the Letters Patent Appeal on 13.06.2007 i.e. prior to judgment and order dated 23rd June 2008. In fact, a counter affidavit on behalf of State had also been filed in L.P.A. on 17th August 2007.
11. Be that as it may, now this Court is required to decide the matter on merits in view of request made by the Apex Court. A supplementary counter affidavit on behalf of the Board has been filed.
12. On merits the main issue is whether the College had been granted recognition/approval by the State Government prior to coming into force of NCTE Act on 17.08.1995 or not. On behalf of the appellants reliance has been placed upon Annexure-2 and Annexure-3 to show that vide Annexure-2 dated 26.04.1995 it was conveyed to the Secretary of the College in unequivocal terms that the Government, after full consideration of relevant facts and in the light of statutory provisions mentioned therein had granted approval/recognition to the College for the sessions 1979- 81 to 1994-1996. This letter is not in dispute and the said decision stands corroborated by another letter of the respondent-Director dated 05.02.1997 sent to the Secretary of the Board in which name of the appellant- College is mentioned amongst Colleges having recognition of the State Government. On behalf of the State and the Board a plea has been taken that the communication of State Government's decision vide Annexure-2 was made by Director of the Department and hence such communication was defective and was not in compliance with requirements of Article 166 (1) and (2) of the Constitution of India which required executive action of the State Government to be expressed in the name of the Governor and authentication in the prescribed manner. According to the rules the authentication should have been by a Secretary or Deputy Secretary.
13. It is not in dispute that there was a decision by the State Government prior to issuance of the letter dated 26.04.1995 (Annexure-2) which was communicated to the Secretary of the appellant-college by the Director of the concerned department. In such circumstances, it has rightly been submitted on behalf of the appellants that even if the order was not properly expressed or authenticated it would not lose its force. In support of this principle reliance has been rightly placed upon several constitution bench judgment of the Supreme Court starting from 1. AIR 1952 SC 181 (Dattatraya Moreshwar v. The State of Bombay & Ors), 2. AIR 1952 SC 317 (State of Bombay v. Purushottam Jog, 3. AIR 1955 SC 160 (P. Joseph John v. State of Travancore-Cochin, and 4. AIR 1964 SC 1823 (Chitralekha v. State of Mysore).
14. The respondents have tried to take advantage of the letter dated 04.09.1997 (Annexure-4) in which the decision of the State Government in favour of the appellant-College has been reiterated but with reference to direction of the High Court vide order dated 28.01.1993 in CWJC. No.2428/1985. As noticed earlier, in paragraph-2 of that letter there is a mention that in the light of this order the earlier order dated 26.04.1995 (Annexure-2) will stand superseded. The arguments advanced on behalf of the respondents that the order of recognition dated 26.04.1995 would stand nullified with retrospective effect by virtue of letter dated 04.09.2009 is misconceived and impermissible because the supersession was only because a more formal order by Deputy Secretary was issued on 04.09.1997 and the earlier order was neither held to be illegal in any manner nor was sought to be superseded retrospectively since its inception. There is nothing in the letter dated 04.09.1997 to indicate that the earlier order of recognition would stand superseded from the date of that order itself. To the contrary, a copy to the Secretary of the Board contains a direction to issue the result of the students of the College for sessions up to 1983-85 expeditiously. Thus, on facts the order dated 04.09.1997 (Annexure-4) is found not at all adverse to the appellants. It is not difficult to visualize that Government purposely did not try to exercise its executive power with retrospective effect when the rights of the students and the College had already crystallized in view of the earlier decision apparent from Annexure-2 dated 26.04.1995. Hence, no merit is found in the submissions advanced on behalf of the respondents that recognition to the appellant-College was granted only on 04.09.1997 vide Annexure-4 i.e. on a date after 17.08.1995 when the NCTE Act,1993 came into force. Such a submission is misconceived. In view of Annexure-2 and 3 it must be held in favour of the appellants that the appellant-College had the necessary approval/recognition from the Government prior to 17.08.1995.
15. In view of the aforesaid findings and considering the interim orders passed by a vacation judge wherein the students of the concerned sessions had appeared in the examination and the interim order of the Apex Court under which their results have already been published, there could have been nothing to discuss further on merits for allowing the Letters Patent Appeal and the writ petition. However, one last submission advanced on behalf of the Board requires to be noticed before arriving at the final conclusion. A technical stand was taken on behalf of the Board that after the NCTE Act, 1993 came into force i.e., 17.08.95, its provisions became binding on all concerned including the Board, particularly provisions in section 16 which place a restrain upon an examining body like the Board that on or after the appointed date i.e. the date when National Council for Teachers Education was established, it shall not grant affiliation to any Institution or hold examination, whether provisionally or otherwise for a course or training conducted by a recognized Institution unless the Institution has obtained recognition from the Regional Committee concerned under Section 14 or permission for a course or training under Section 15. It has submitted that recognized Institution in the context would mean an Institution like the appellant which had recognition prior to coming into force of the NCTE Act and hence unless the Institution gets recognition or permission under Section 14 or 15 of this Act, the Board is barred under law from holding examination for the appellant-Institution even in respect of sessions of period prior to 17.08.95. The submission appears attractive on the face but lacks substance. On a proper reading of the provisions of the Act and Section 16 itself and taking aid of its heading- "affiliating body to grant affiliation after recognition or permission by the Council" it has to be held that the bar is in respect of courses or training conducted by an earlier recognized institution for the Sessions beginning after the coming into force of the Act. This provision need not to be read as retrospective or retroactive as it would cause undue hardship and injustice to the students of Institutions having recognition prior to 17.08.95. It would be unjust to interpret the provision as retrospective because, it would debar holding examination for a course or training conducted by a recognized Institution under valid recognition and affiliation only because the examination, as in the present case, was not held in time but conducted later. On behalf of the Board reliance was placed in support of their aforesaid proposition upon a Division Bench judgment of this Court in the case of Kumari Ranjana Mishra v. State of Bihar, 2008 (2) PLJR 809. The facts of that case were different inasmuch as the concerned Institution of that case had been found to be unfit leading to derecognition in the year 2004 and in paragraph-6 it was further found that for that Institution the State Government had never made any request to the Board for allowing the students to take examinations in the past.
16. In the present case the facts are different and the results of the students of earlier batch were directed to be published. Moreover, by an interim order of this Court the Institutions were allowed to take their examination and their results have also been published under order of the Apex Court which has already been extracted above. In the facts of the case, this Court finds that on merits the claim of the appellants and the writ petitioner deserves to be allowed as it relates to claims having valid foundation in law and on facts for a period prior to coming into force of the NCTE Act, 1993. It is made clear that no claims of any kind of the Institution for the period after 17.08.1995 shall receive any support from this judgment. The only practical relief which the appellant and the petitioner would get is the benefit of result of the examination already published. The appeal and the writ petition are allowed to that extent only.
17. There shall be no order as to costs.