Writ Petition No.1105 of 2010

13th January, 2011

Petitioner Counsel: Mr. ANAND PARCHURE
Respondent Counsel: Mr. R. A. HAQ,Mr. Z. A. HAQ,Mr. A. M. DESHPANDE

Cases Cited:
S.M.B.S.P. Mandal Vs. State of Maharashtra, 2005(5) Bom.C.R.395 [Para 14]

JUDGMENT

V. C. DAGA, J. :- The petitioner - Society has invoked the writ jurisdiction of this court under Article 226 of the Constitution of India, to seek writ of Mandamus against respondent No.1 - Rashtra Sant Tukdoji Maharaj Nagpur University ('University' for short), directing it to grant provisional affiliation for the academic year 2009-2010 to Dr. Arun Motghare Master of Education (M.Ed.) College run by the petitioner - Society by modifying the impugned order, whereunder affiliation for the academic year 2010-2011 is granted. The petitioner, by way of interim prayer has further prayed that the University be directed to accept the examination forms of the first year students for the M.Ed. Course admitted in the academic year 2009 - 2010.

THE FACTUAL MATRIX :

2. The factual matrix leading to the present petition is that the petitioner is a Trust and Society running various colleges, one of them run under the name and style Late Dr. Arun Motghare Master of Education (M.Ed.) College at Kosra-Kondha, Tahasil: Paoni, Distt. Bhandara.

3. The petitioner sought permission from the National Council of Teachers Education (NCTE) - the respondent No.3 through Government of Maharashtra, the respondent No.2, to start new M.Ed. College. The respondent no.2 vide it's letter dated 13/8/2009 permitted the petitioner - Society to run college based on the permission granted by the N.C.T.E. vide its letter dated 13/7/2009 subject to the terms and conditions contained therein. One of the relevant conditions thereof is as under:

"6. The institution shall make admission only after it obtains affiliation from the examining body in terms of clause 8(12) of the NCTE (Recognition Norms and Procedure) Regulations, 2007." (Emphasis supplied)

Accordingly, the petitioner - Society submitted an application to respondent No.1 - University to grant affiliation to M.Ed. College for the academic year 2009-2010. The University did not grant affiliation for the academic year 2009 - 2010. It granted affiliation for the academic ear 2010 - 2011.

4. The petitioner - Society without there being any affiliation from University, in violation of the above condition No.6 put by the NCTE, chose to admit the students for M.Ed. Course. In other words, the admissions for the academic year 2009 - 2010 to the M.Ed. Course were made without there being any affiliation from the Nagpur University.

5. The petitioner now, in order to cover it's lapse, is before this court to challenge the order granting affiliation from the year 2010 - 2011 with a prayer to modify it and to make it operative with retrospective effect from the academic Session 2009 - 2010 so as to regularize the illegality committed by admitting students for the academic year 2009 - 2010 in breach of the permission granted by the NCTE.

SUBMISSIONS :

6. The learned counsel for the petitioner made submissions in consonance with the prayer made. Per contra, learned counsel appearing for the respondents vehemently opposed this petition and urged that the petitioners cannot be allowed to take advantage of their own wrong. According to them, petitioner is guilty of committing breach of the terms and conditions of the permission granted by the NCTE, as such no relief in the equitable writ jurisdiction of this court should be granted in favour of the petitioners.

CONSIDERATION :

7. Having heard the learned counsel for the petitioner, we could not be persuaded to accept the prayer made by the petitioner.

8. The above factual matrix makes it clear that the petitioner has admitted students without there being affiliation from the examining body, the Nagpur University. By admitting the students, in absence of affiliation, petitioner has played with the academic life of the students. The students have lost their one academic year because of the illegal admissions of the students in breach of the conditions put by the N.C.T.E.

9. At this juncture, it will not be out of place to mention that it has become a regular practice on the part of the educational institutions to run the classes illegally, admit students illegally without there being any infrastructure. True facts are not disclosed to the students. False representations are made to the students. They are persuaded to take admissions through attractive advertisements. It is common knowledge that when the examining body refuses to accept examination forms or to issue hall tickets to the students, then either students or their parents are made to approach the courts to seek regularization of the illegal admissions. Some time out of sympathy they get relief, some time they do not. Now, it has become necessary to arrest this tendency. This is not possible unless such cases are dealt with iron hand.

10. As a writ court, this court would be failing in its duty, if it does not take appropriate steps at the earliest to arrest tendency to run illegal schools and/or colleges and/or admit students without there being a proper infrastructure and/or sanction and/or authorization from the State Government and/or NCTE and/or affiliation of the examining body, like; University and Board etc.

11. The Apex Court has repeatedly held that the imparting education cannot be treated as a trade or business. The education has never been nor can it be allowed to become a trade and commerce in this country though the educational societies have started treating it as a trade and commerce. If writ jurisdiction is allowed to be usurped for regularization of illegal admissions, then the writ courts unknowingly might become party to the illegal actions of the educational institutions.

12. Having examined the facts of the case in hand and having noticed illegal act of admitting students in violation of the terms of the authorization, we called upon the petitioner - Society to justify their act of admitting students. No satisfactory answer has been given to this court. In the circumstances, no case is made out to exercise writ jurisdiction in favour of the petitioner. The petition is thus without any substance and liable to be dismissed in limine.

13. In our considered view, mere dismissal of this petition will do no justice. Needless to mention that to some extent students are also responsible for taking admission in a college which is not affiliated to the University. It appears that they have fallen prey to the false representations made by the petitioner - College through its prospectus. At any rate, we were of the prima facie; view that the petitioner cannot escape liability to compensate students. Hence, we, in exercise of suo motu writ jurisdiction under Article 226 of the Constitution of India, vide our order dated 29/11/2010, reproduced herein below, issued show cause notice to the petitioner.

"-ORDER-

Dated 29/11/2010)

In exercise of suo motu powers under Article 226 of the Constitution of India, issue show cause notice returnable on 13/12/2010 to the petitioner as to why the students should not be awarded compensation following judgment of this Court in the case of S.M.B.S.P. Mandal Vs. State of Maharashtra, 2005(5) Bom.C.R. 395, (the SLP preferred against which bearing SLP (Civil) No.2858/2005 dismissed by the Hon'ble Supreme Court vide order dated 11.03.2005) for the loss caused to them because of the act of the petitioner in admitting the students without there being affiliation with the Nagpur University, especially, when there were specific directions by the N.C.T.E. vide it's direction dated 2/13th July, 2009 not to admit students in absence of affiliation from the examining body.

Mr. Anand Parchure, learned Counsel for the petitioner is asked to take notice on behalf of the petitioner."

14. In response to the above notice, the petitioner filed it's reply contending that the students were admitted to protect their academic interest. The blame was sought to be thrown at the door of the University for not granting affiliation. According to the reply, in some cases, in favour of some of the institutions affiliation is granted whereas in some cases it was denied without there being any valid reason. The submission made is absolutely misplaced. In our considered view, the petitioner could not have admitted students without there being any affiliation. The loss of one academic year of the students cannot be brushed aside. The relief of monetary compensation, as exemplary damages, in proceedings under Article 226 by the High Courts can always be granted. Similar relief was granted by this court in favour of the students in more or less similar facts in the case of S.M.B.S.P. Mandal Vs. State of Maharashtra, 2005(5) Bom.C.R.395.

15. A judicial note of the resultant loss caused to the students, who have taken admission in an unauthorized course for the academic year 2009-2010 can be taken by this court in the writ jurisdiction. Since we have refused to grant provisional affiliation for the year 2009-2010 and decided to dismiss this petition, we feel that the students would be entitled to the amount determined herein below by way of reasonable compensation from the petitioner Society, since it alone is responsible for causing loss of one academic year of the students.

: ORDER :

16. In the above premises, we direct the petitioner to return the admission fees, as disclosed by the petitioner to this court, to all the students quantified in the sum of Rs.40,000/- each and shall make additional payment to them by way of compensation quantified in the sum of Rs.40,000/- each. The amount of refund along with compensation shall be paid to all the students by payees Account bank demand drafts, the payment of which the Joint Director of Higher Education, Nagpur (M.S.) shall certify within period of eight (8) weeks from today under intimation to this court, failing which the amount due and payable shall carry interest thereon at the rate of 12% per annum from the date of this order till actual payment is made in full and final.

17. The Joint Director of Higher Education, Nagpur is directed to see that all the students of the petitioner - College are duly paid as per this order.

18. With the above directions, the writ petition is dismissed in limine with costs quantified in the sum of Rs.15,000/- to be paid to the respondents in equal ratio. Amount of costs shall be deposited with this court within four weeks from today.

19. The effect and operation of this order is stayed for a period of six weeks from today as per prayer made by the learned counsel for the petitioner since order is adverse to the petitioner.

Ordered accordingly.