Kumari Ranjana Mishra
& ANR Vs The State of Bihar & Ors.
J U D G M E N T
K. PATNAIK, J.
1.
Leave
granted.
2.
This
is an appeal against the order dated 23.05.2008 of the Division Bench of the
High Court of Patna in Letters Patent Appeal No.972 of 2007.
3.
The
facts very briefly are that the Government of Bihar in the Department of Human Resource
Development granted temporary recognition to the Champaran Physical Training College
(for short `the College') for C.P.Ed. (Certificate of Physical Education) and
D.P. Ed. (Diploma in Physical Education) courses from July, 1986 alongwith permission
to the students of the College to appear in the examinations subject to certain
conditions stipulated in the order dated 09.08.1988.
The two appellants
took admission in the C.P.Ed. course in the College in the academic session 1989-1990.
Several other students also took admission in the C.P.Ed. course in the College
in different academic years 1989-1990 to 1995-1996. With effect from
01.07.1995, the National Council for Teacher Education Act, 1993 (for short `the
NCTE Act') came into force and under Section 14 of the NCTE Act, the power to
grant recognition was vested in the Regional Committee of the National Council for
Teacher Education (NCTE) with effect from 17.08.1995. On 13.04.2004, the State
revoked the recognition of the College and all other Non-Government Physical
Training Colleges in the State.
The two appellants and
five other candidates, who had undergone the C.P.Ed. course in the College
during the academic years 1989-1990 to 1995-1996, moved the High Court under Article
226 of the Constitution in C.W.J.C. No. 11413 of 2007 for a direction to the Bihar
School Examination Board to release the form and accept the fees and forms of the
appellants and the five other candidates on the basis of the training courses
completed in the academic sessions 1989-1990 to 1995-1996 from the College and to
allow them to appear in the examination to be conducted in 2007. By order dated
07.11.2007, a learned Single Judge of the High Court dismissed the Writ Petition.
The two appellants and the five other candidates then filed Letters Patent
Appeal No. 972 of 2007 before the Division Bench of the High Court. By the impugned
order dated 23.05.2008, the Division Bench of the High Court dismissed the Letters
Patent Appeal. Aggrieved, the appellants have filed this appeal.
4.
Mr.
Sunil Kumar, learned senior counsel appearing for the appellants, submitted
that before the Division Bench of the High Court, the appellants contended that
the College was recognized by the State Government during the years 1989-1990
to 1995-1996 when the appellants and five other candidates undertook the C.P.Ed.
course and that the Regional Committee of NCTE was vested with the power to grant
recognition only after the NCTE Act came into force on 01.07.1995 and, therefore,
the Bihar School Examination Board should be directed to allow the appellants
to take the C.P.Ed. examination. He submitted that before the High Court the appellants
relied on the decision in Sunil Kumar Parimal & Anr. v. State of Bihar
& Ors. [(2007) 10 SCC 150] in which this Court has held that the Tirhut Physical
Education College, Muzaffarpur, was duly recognized by the State Government and
lost its recognition only with effect from the date the NCTE Act came into force,
and hence the candidates, who had undertaken the course in the aforesaid College
recognized by the State Government before the NCTE Act came into force, were eligible
to appear in the examination of C.P.Ed. course.
He submitted that the
High Court did not accept the contention of the appellants and instead held that
Tirhut Physical Education College, Muzaffarpur, was a recognized institution and
despite repeated requests of the State to allow the students to appear in the examination,
the Bihar School Examination Board did not follow the request of the State Government,
but in the facts of the present case no such request had been made by the State
Government and no direction was issued by the State Government to the Bihar School
Examination Board to allow the students of the College to take the C.P. Ed.
examination.
He submitted that the
High Court further held that the order passed by this Court in Sunil Kumar Parimal's
case was in exercise of this Court's jurisdiction under Article 142 of the Constitution
to do complete justice between the parties and the High Court had no such power
to do complete justice under Article 226 of the Constitution. Mr. Sunil Kumar further
submitted that the High Court also held that after the NCTE Act had come into force
the College had also not applied for recognition and in fact the recognition of
the College had been cancelled in the year 2004 and that it was only after the
College was derecognized that the appellants sought to appear in the examination
to be conducted by the Bihar School Examination Board in the year 2007, to which
the appellants were not entitled. He argued that the case of the appellants is
squarely covered by the decision of this Court in Sunil Kumar Parimal's case
(supra) and this Court should direct the Bihar School Examination Board to allow
the appellants to take the C.P.Ed. examination. Learned counsel for the respondents
nos. 8 and 9, namely, the Secretary and the Principal of the College, adopted the
aforesaid arguments of Mr. Sunil Kumar.
5.
In
reply, Mr. Gopal Singh, learned counsel appearing for respondent Nos. 1 to 5,
namely, the State of Bihar and the Bihar School Examination Board and their officers,
submitted that the Bihar School Examination Board has conducted examinations on
several occasions during the years 1989-90 onwards, but the appellants did not make
any request to sit in the examination in all the years till 2007 and it is only
after the State Government started recruitment of teachers in large numbers and
appointed Panchayat Teachers that the appellants were anxious to take a chance in
the examination.
He further submitted that
the recognition of the College in which the appellants had studied was in fact
withdrawn by the State Government in 2004, and after the NCTE Act came into
force, the College had not been granted recognition by the Regional Committee of
the NCTE. He submitted that Section 16 of the NCTE Act is very clear that no examining
body shall hold examination for a course or training conducted by a recognized institution
unless the institution concerned has obtained recognition from the Regional Committee
of the NCTE under Section 14 or permission for a course or training under
Section 15 of the NCTE Act.
He argued that since the
College had not obtained recognition of the Regional Committee of the NCTE under
Section 14 or permission for the course or training under Section 15 of the NCTE
Act, the Bihar School Examination Board was clearly prohibited under Section 16
of the NCTE Act from holding the examination for the appellants. Mr. Gopal Singh
submitted that considering the judicial pronouncements in L. Muthukumar &
Anr. v. State of T. N. & Ors. [(2000) 7 SCC 618], St. John's Teachers Training
Institute (for Women), Madurai & Ors. v. State of Tamil Nadu & Ors. [(1993)
3 SCC 595], State of Maharashtra v. Vikas Sahebrao Roundale & Ors. [(1992) 4
SCC 435] and N. M. Nageshwaramma, etc. v. State of Andhra Pradesh & Anr., etc.
[1986 (Supp.) SCC 166] the appellants are not entitled to take the examination after
derecognition of the College. He also cited a recent decision of this Court in Bhagwan
Budha Prathmik Technical Training College Nirmali v. The State of Bihar &
Ors. [2010 (12) SCALE 364] in which it has been held that after the NCTE Act
came into force in July, 1995 the State Government had no authority to issue the
order dated 16.03.2007 granting recognition to an institution for the period
1987-1995.
6.
We
have considered the submissions of the learned counsel for the parties and we find
from the record of this case that the College was established after permission was
granted by the State Government to open the College and the College started
C.P.Ed. and D.P. Ed. courses from July 1986. Thereafter, a spot inspection of the
College was carried out pursuant to the orders of the State Government in the
Department of Youth Affairs, Games and Culture, and the Inspection Committee comprising
the Director-cum-Deputy Secretary, Student and Youth Welfare, Deputy Director, Youth
Welfare-Bihar and Principal, Government-cum-Teaching College, Patna, submitted a
report dated 04.12.1987 stating that the College had a building over 10 acres
30 decimals of land, seven Lecturers, two Instructors, one Library and other non-teaching
staff and all the Teachers were eligible and experienced and that the College was
running properly. On the basis of the said report dated 04.12.1987, the
Government of Bihar in the Department of Human Resource Development by order dated
09.08.1988 granted temporary recognition to the College from July 1986 for the
C.P.Ed. and D.P.Ed. courses till further orders "along with permission to the
students to appear in the examination".
7.
Rule
7 of the Bihar School Examination Board Rules, 1963 which has been referred to
in paragraph 6 of the reply of the Bihar School Examination Board reads as
follows: "7. Departmental Examinations to be conducted by the Board: (1) The
Board shall on, such terms and conditions as may be laid down by the State Government,
conduct the following departmental Examinations, namely:-- (a) Certificate in
Social Education; (b) Diploma in Physical Education; (c) Certificate in
Physical Education; (d) Short Training Course in Physical Education; (e)
Primary Training Course in Physical Education; and (f) Training School
Examinations: Provided that the State Government may, by notification in the official
gazette, authorize the Board to conduct such other departmental examinations not
specified or withdraw the authority given to the Board to conduct any of the
examinations mentioned, in this sub-rule. (2) The State Government may give instructions
to the Board about the content as well as the academic and vocational standards
of these examinations, and may modify these instructions, as and when
necessary.
"The word
"shall" in sub-rule (1) of the Rule 7 indicates that a duty is cast
duty on the Bihar School Examination Board to conduct the Certificate in Physical
Education (C.P.Ed.) examinations on such terms and conditions as may be laid down
by the State Government. In the order dated 09.08.1988 of the State Government
granting recognition to the College, there were ten conditions and condition no.6
was to the following effect:- "Students will be compulsorily required to perform
successfully as per the standard of one star, in the test conducted by Government
Health and Physical Training College, Rajendranagar, Patna, before appearing in
the examination conducted by the Bihar School Examination Board."
It
is thus clear from the terms and conditions of the order dated 09.08.1988 of the
State Government granting recognition that the students of the College were to
appear in the C.P.Ed. and D.P.Ed. examinations conducted by the Bihar School
Examination Board. Hence, the Bihar School Examination Board was under a duty to
hold the C.P.Ed. and D.P.Ed. examinations for the students of the college and this
duty could be enforced by the Court by an appropriate writ or direction by the
High Court under Article 226 of the Constitution. The High Court was not right in
taking the view in the impugned order that without a direction of the State Government
to the Bihar School Examination Board to allow the appellants to take the examinations,
no relief could be granted by the High Court to the appellants.
8.
The
High Court was also not right in distinguishing the present case from the case
of Sunil Kumar Parimal (supra). In the case of Sunil Kumar Parimal (supra), this
Court had found that the Tirhut Physical Education College, Muzaffarpur, had been
granted permission to enroll the students in C.P.Ed. and D.P. Ed. courses for the
Sessions 1994-1995 to 1995-1996 and was duly recognized by the State Government
and this Court held that the NCTE Act will be applicable prospectively to those
students who have to undertake the examination after the Act came into force. This
Court having found that the aforesaid College was recognized by the State
Government prior to the date when the NCTE Act came into force and the NCTE came
into existence, directed that the students of the College would be permitted to
appear in the examination for the courses of C.P.Ed and D.P. Ed. for the
Sessions 1994-1995 and 1995-1996 to be conducted by the Bihar School Examination
Board on the next available opportunity. In our considered view, the decision of
this Court in Sunil Kumar Parimal (supra) squarely applies to the facts of this
case also as the College was duly recognized by the State Government during the
year 1989-1990 when the appellants were admitted to the C.P.Ed. course and when
the NCTE Act had neither been enacted nor come into force.
9.
The
decision of this Court in Bhagwan Budha Prathmik Technical Training College Nirmali
v. The State of Bihar & Ors. (supra), cited by learned counsel for respondent
nos.1 to 5, is not applicable to the facts of the present case. In that case, after
the appointed date (17.08.1995) when the NCTE had been established under the
NCTE Act, the State Government passed an order dated 16.03.2007 granting recognition
to the Teachers' Training College at Nirmali, District Supaul (Bihar) for 1987-1989
onwards and this Court held that after the appointed date the State Government cannot
exercise the power of recognition nor can the examining body hold examination
of the students of a teacher training institute unless the institution was
recognized by the Regional Committee of the NCTE as laid down in Section 16 of
the NCTE Act. In the facts of the present case, on the other hand, we find that
the order of the State Government granting recognition to the College in which the
appellants studied in the year 1989-1990 was issued on 09.08.1988, several years
before the NCTE Act came into force.
10.
In
L. Muthukumar & Anr. v. State of T. N. & Ors. (supra) on which great
reliance has been placed by learned counsel for the respondent nos. 1 to 5,
some students had filed writ petitions contending that they had undergone secondary
grade teachers' training in different training institutes between the period 1989
to 1991 and that they had taken public examination in May 1992, but their
results were not published and certificates were not awarded.
The Court found that the
institutes, in which they had undergone training, had recognition but the same was
withdrawn subsequently by virtue of the judgment in P.M. Joseph v. State of T.
N. (1993 Writ LR 604) holding that the orders of recognition had been granted only
on extraneous considerations. On these facts, this Court held that as the students
had undergone the training in the institutes which were derecognized by virtue of
the judgment in P. M. Joseph's case, the prayers of the students for writ of mandamus
for issuing of mark-sheets and/or diplomas/certificates contrary to the judgment
in P.M. Joseph's case could not be granted by the High Court. In the facts of
the present case, however, the recognition to the College that was granted by the
State Government for the years 1989-1990 during which the appellants were
admitted in the course had not been withdrawn on the ground that the recognition
was granted for extraneous considerations.
On the contrary, we find
from the record of this case that until 13.04.2004 the recognition of the
College had not been revoked by the State Government and on 13.04.2004 the recognition
of all non-Government Physical Training Colleges including that of the College in
the present case were revoked presumably because the State Government no longer
had the power to grant recognition and the non-Government Physical Training Colleges
in the State were required to obtain recognition from the Regional Committee of
the NCTE under the NCTE Act.
11.
We
have also perused the decisions of this Court in St. John's Teachers Training Institute
(for Women), Madurai & Ors. v. State of Tamil Nadu & Ors. (supra), State
of Maharashtra v. Vikas Sahebrao Roundale & Ors. (supra) and N. M. Nageshwaramma,
etc. v. State of Andhra Pradesh & Anr., etc. (supra) cited by learned counsel
for respondent nos.1 to 5 and we find that in these decisions this Court has held
that the students studying in the unrecognized institutions are not entitled to
any relief, interim or final, from the Court for taking examinations.
The main reason given
by this Court for refusing such relief is that standards of education, sports,
administration and maintenance of the Teachers Training Institutes should not
be compromised by granting such reliefs. These decisions have no relevance to the
facts in the present case in which we find that after inspection of the College
the Inspection Committee had submitted a report stating that the College had
the required facilities and the teaching and other staff and on the basis of such
report the State Government had, in fact, granted temporary recognition to the College
by order dated 09.08.1988 and the appellants were admitted in the College during
the year 1989-1990 when the recognition granted by the State was in force.
12.
In
the result, we allow this appeal, set aside the impugned order of the High Court
and direct the Bihar School Examination Board to conduct the C.P.Ed. examination
for the appellants as soon as possible. No costs.
..........................J.
(R.V. Raveendran)
..........................J.
(A. K. Patnaik)
New
Delhi,
March
10, 2011.
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