Durba Sanyal (Bhattacharya) vs West Bengal Central School Service Commission and Others

Tapan Kumar Dutt, J.—Heard the Learned Advocates for the respective parties.

The facts of the case, very briefly, are as follows:

The petitioner completed her Masters Degree in English from Jadavpur University in 1993 and also completed her M. Phil from Rabindra Bharati University in the year 1995. The petitioner was selected for the post of Assistant Teacher in a certain school namely, Sahapur Girls'' High School at Kolkata, in the year 1995 and her service was approved by the authority concerned in 1995 itself. The petitioner''s case is that the petitioner completed her B.Ed. Course from Rabindra Bharati University (respondent No. 10) and appeared at the Bachelor of Education Examination, 1999 and secured a First Class in the said examination. According to the petitioner, the petitioner is also discharging the functions of a Teacher-in-Charge in the said School as there is no permanent Head Mistress. In response to an advertisement issued by The West Bengal Central School Service Commission (respondent No.1) for holding the 8th Regional Level Selection Test for appointment of Headmasters/Headmistresses in recognized non-government aided Schools, the petitioner applied for such post. The petitioner came to learn from the web-site concerned that her admit card has been rejected owing to ineligibility in terms of educational and professional qualifications. The petitioner came to learn that in terms of a certain circular dated 22.11.06 issued by the respondent No.3 and the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2007, she has been declared ineligible. The petitioner came to learn from the respondent No.2 that since the B.Ed. Course under the respondent No.10 was not recognized by the National Council for Teacher Education (for short, NCTE) in respect of the relevant academic year, the petitioner''s B.Ed. qualification was not a valid one. The petitioner, in the present writ petition, has challenged the stand taken by the respondents and prayed for a direction upon the respondents to allow the petitioner to appear at the said 8th Regional Level Selection Test (for short, RLST). The petitioner has challenged the decision of the respondent authorities, concerned of not issuing the admit card in favour of the petitioner.

In this matter the written notes of arguments have been submitted on behalf of the petitioner, respondent Nos.1 to 5 and respondent Nos.10 to 12. Affidavit-in-opposition has been filed on behalf of the respondent No.13 and also respondent Nos. 10 to 12. The respondent Nos. 1 to 5 have also filed an affidavit as to facts. The learned advocate for the State-respondents has also appeared in the matter to contest the writ petition.

The only issue involved in the present writ petition is whether or not the B.Ed. degree obtained by the petitioner from the Rabindra Bharati University after completing the course in the academic session April, 1998 to March 1999 is a valid one. According to the petitioner such degree is a valid one but the School Service Commission authorities have challenged such contention and it has been submitted on their behalf that the said degree is an invalid degree and as such the petitioner was not entitled to appear at the 8th RLST

The petitioner''s Learned Advocate submitted that the petitioner has obtained the said, degree after successfully completing the B.Ed. Course in the academic Session 1st April, 1998 to 31st March, 1999 with the bona fide belief that there was nothing illegal in pursuing such studies in the institution concerned.

The learned advocate appearing on behalf of the petitioner relied heavily on section 14 of The National Council for Teacher Education Act, 1993, particularly, sub-section 5 of the said Section. The said learned advocate submitted that the provisions of section 14 show that if an application for recognition is made by the institution concerned then till the time the order of recognition is passed the course should stand protected and that it is not the intention of the legislature that an institution offering B.Ed. Course should be prevented from proceeding with such course during the pendency of the application for recognition. According to the said learned advocate, section 14(5) of the said Act of 1993 clearly indicates that the course which might be in progress at the time when the order of refusal reaches the institution concerned cannot be affected by such order of refusal. The said learned advocate submitted that since it appears that the application for recognition was made in the year 1996 in the present case and the order of refusal was passed on 18th June, 1998, the course undertaken by the petitioner cannot be deemed to have been affected. The petitioner''s learned advocate submitted that the covering letter of the order of refusal will also indicate that the National Council for Teachers Education did not want to immediately stop the course which was being conducted by the institution concerned at the time when the said letter of refusal reached the Rabindra Bharati University i.e. the B.Ed. Course which was being pursued by the petitioner at the material time. In the covering letter dated 18.06.1998 issued by the Regional Director of the Eastern Regional Committee, National Council for Teacher Education addressed to the Principal, Department of Education, Rabindra Bharati University, it has been stated that "In terms of the NCTE Act, you are advised to discontinue admission after the end of the current session". It appears from the order of refusal dated 18.06.1998 which was enclosed with the said covering letter that the Regional Committee as early as on 10-11 February, 1998, after considering the report of the visiting team as well as other materials furnished by the institution concerned, had opined that the institution concerned does not fulfil certain requirements and a notice was issued as early as on 13.03.1998 to the institution concerned under proviso to section 14(3)(b) of the said Act of 1993. Thus, the institution concerned and the Bharati University were quite aware of the fact that not intending to grant concerned until and unless the institution concerned satisfies the said Council with regard to all the necessary conditions. It appears from the said order of refusal that the institution concerned did not fulfil the NCTE norm in respect of teaching staff, physical facilities such as science lab and psychology lab. and curriculum transaction. In such circumstances, the recognition to the institution concerned was refused. Therefore, it cannot be said that the order of refusal came in the midst of the session concerned as a bolt from the blue. What was indicated in the said covering letter was that the said institution concerned should not admit any student after the end of the current session which was then going on. This is quite obvious since the admission in respect of the current session i.e. 1998-1999 had already taken place by the time the order of refusal was issued and as such the question of stopping such admission for the said session did not arise. It was only the future admission which could be prohibited, and, as such, the National Council for Teacher Education prohibited any admission after the end of the aforesaid session which was then going on.

The learned advocate appearing on behalf of the respondent Nos. l to 5 submitted that there is no dispute, as would appear from the materials on record, that the institution concerned did not have the recognition from the NCTE when the petitioner had pursued the B.Ed. Course and as such the School Service Commission was right in taking a decision of not issuing any admit card to the petitioner for the Test concerned since the petitioner did not have a valid B.Ed. degree.

The learned advocate appearing on behalf of the respondent Nos.10 to 12 relied upon certain paragraphs of the affidavit-in-opposition of the said respondents. The said paragraphs of the said affidavit-in-opposition are quoted below:

"3. (i) It is on record that the Rabindra Bharati University made an application to the National Council for the Teachers Education in the year 1996 after complying with all formalities. The said application was submitted to the concerned authority of National Council for Teachers Education (hereinafter referred to as NCTE) on 28th March, 1996. Such, application was submitted for recognition of old institution that means prior coming into effect of the jurisdiction of NCTE. The Rabindra Bharati University has introduced B.Ed. course in the said university keeping in mind the interest of students and such B.Ed. course was affiliated and/or recognized by the concerned authority of University Grants Commission (hereinafter referred to as the UGC).

I crave leave to produce and refer to all relevant documents/papers in support of abovementioned contentions, at the time of hearing, before this Hon''ble Court.

(ii) It is on record that by a letter dated 27.4.1998 the Regional Director, Eastern Regional Committee, National Council of Teacher Education, issued a letter to the Registrar of Rabindra Bharati University as regard application for recognition of B.Ed. course and the first paragraph of the said letter is set out hereinbelow:

"I am glad to know that your university is taking positive steps towards fulfillment of NCTE norms. I hope that adequate number of regular and qualified teaching staff will be appointed soon to facilitate the recognition of the Department of Education."

A photocopy of the ''said letter dated 27.4.1998 is annexed hereto and marked with the letter "A/1".

(iii) It appears from the said letter dated 27.4.1998 of NCTE that the authority of Rabindra Bharati University was all through vigilant and have taken positive steps towards fulfillment of NCTE norms. It further appears from the letter under reference that at no point of time NCTE restrained the Rabindra Bharati University from running B.Ed. course in their campus. In fact, the authority of NCTE has appreciated the action and/or steps taken by the Rabindra Bharati University.

It is further on record that the Education Department of Rabindra Bharati University is the only university and/or organization and/or institution made application for recognition for B.Ed. course in West Bengal in the year of 1996 after complying with all formalities.

(vi) It is on record that the B.Ed. Course of the Rabindra Bharati University was started on and from 1985. The course is unique one in the region not only because of Tagore''s thought and ideas were inflicted in the syllabus but also due to vocal music and visual Art (pending) being offered on Method Papers.

(vii) It is on record that by a letter dated 18th January, 1999 the Regional Director of Eastern Regional Committee, NCTE informed the Registrar of Rabindra Bharati University that the university should conduct examination of approved number of candidates only and those institutions which are recognized/allowed to continue by NCTE. As such it is ex facie clear that at the relevant point of time the Education Department, Rabindra Bharati University has been allowed to continue B.Ed. Course by NCTE.

A photocopy of the said letter dated 18.1.1999 is annexed hereto and marked with the letter "A/2".

(viii) I state that on May 21, 2001 the authority of NCTE ultimately has been pleased to grant recognition to the Department of Education, Rabindra Bharati University for B.Ed. Course of one year duration from the Academic Session 2001-2002. A photo copy of the said letter dated May 21, 2001 is annexed hereto and marked with the letter "A/3".

None of the said paragraphs in the said affidavit-in-opposition indicate that the institution concerned was duly recognized by the respondent No.13 at the material point of time i.e. when the petitioner was pursuing the B.Ed. Course. Reading the said paragraphs of the said affidavit-in-opposition it does not appear to this Court that the respondent No.13 had ever taken the stand that even without the recognition of the institution concerned, the institution concerned could continue with the B.Ed. Course.

The learned advocate for the said respondent Nos.10 to 12 cited a decision reported at Bharat Singh and Others Vs. State of Haryana and Others, and emphasised the observation made by the Hon''ble Supreme Court in paragraph 13 of the said reports to the following effect:

............................................................................................In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter- affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the CPC and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.

The learned advocate appearing on behalf of the respondent Nos. 10 to 12 further submitted that the respondent Nos.1 to 5 had affirmed an affidavit as to facts and in paragraph 5 of the said affidavit it has been stated that it transpires from the orders concerned that the qualification of the students of the institution concerned was validated by the NCTE with retrospective effect since the academic year 2000-01. The said learned advocate submitted that no documents/papers were annexed by the respondent Nos.1 to 5 to their affidavit and as such the said learned advocate relied upon the said paragraph 13 of the said reports. This Court is of the view that since the issue as to whether or not the institution concerned was duly recognized by the respondent No.13 at the material point of time, i.e., when the petitioner was pursuing the B.Ed. Course, it is for the respondent Nos.10 to 12 to prove that the institution concerned was duly recognized by the respondent No.13 if the said institution concerned was at all granted such recognition by the respondent No. 13. The respondent Nos. 1 to 5 had made it clear that the recognition was only with effect from the academic year 2000-01 and as such the respondent Nos. 1 to 5 had no further obligation to prove anything else. The observations made by the Hon''ble Supreme Court in the said reported case with regard to the pleading of facts and also evidence in proof of such facts in a writ petition or in the counter affidavit cannot be disputed but in the facts and circumstances of the instant case the said reported decision cannot come in aid of the respondent Nos. 10 to 12 since it is for the said respondent Nos. 10 to 12 to prove that the institution concerned was duly recognized by the NCTE at the material time.

From the affidavit-in-opposition filed on behalf of the respondent No.13, it appears that the Rabindra Bharati University made an application in the year 1996 for recognition of the said B.Ed. Course but the said application was refused on 18.06.1998; thereafter the Rabindra Bharati University made an application for such recognition on 04.04.2000 which was also returned by a letter dated 30.06.2000 for non-submission of required documents but subsequently when Rabindra Bharati University made a fresh application on 07.09.2000 for grant of such recognition, the Eastern Regional Committee of the respondent No.13 vide order dated 21-23.05.2001 granted the recognition for B.Ed. Course of one year duration from the academic session 2001-02 with an annual intake of 60 students subject to fulfilling certain conditions. It has also been stated in the said affidavit-in-opposition filed on behalf of the respondent No.13 that the institution concerned was not an applicant in respect of the ordinance dated 11.09.2006 and its recognition was not validated retrospectively vide order dated 08.12.2006 in the ERC meeting concerned. Thus, it will appear from records that there is no dispute with regard to the fact that the institution concerned was not at all recognized by the respondent No.13 at the material point of time i.e. when the petitioner was pursuing the B.Ed. Course.

The learned advocate for the petitioner, as already indicated above, heavily relied upon the provisions of section 14(5) and the covering letter of the order of refusal dated 18.06.1998 as already mentioned above. Some discussions have already been made above in this regard. According to the petitioner''s learned advocate, section 14(5) of the said Act of 1993 finds place in the said statute to obviate the difficulties which may arise like the one in the present case. The said learned advocate in his fairness placed the copies of the decisions - rendered by the respective Division Benches of this Court in W.P. No. 21101(W) of 2005 (Tulshi Bakshi & Ors. v. The State of West Bengal & Anr), W.P. No. 11247(W) of 2006 (Anjan Bhattacharya & Ors. v. The State of West Bengal & Anr.) and W.P. No. 4107(W) of 2006 (Tulshi Bakshi & Ors. v. The State of West Bengal & Anr.) and submitted that in the aforesaid decisions the interpretation of section 14(5) of the said Act of 1993 did not come up for consideration and as such the aforesaid decisions of the Hon''ble Division Benches cannot go against the petitioner. In the present case there is no dispute that the application for recognition was made beyond the period of six months from the appointed day in so far as the said Act of 1993 is concerned. The respective Hon''ble Division Benches in the aforesaid decisions were clearly of the view that an institution which is not recognized by the respondent No.13 cannot ''offer valid courses in B.Ed. Course and the act of the University concerned in granting affiliation to such institution is in violation of the provisions of the said Act of 1993.

In Tulshi Bakshi''s case (W.P. 21101(W) of 2005) (supra) the question that cropped up was whether or not an institution not being recognized u/s 14 of the said Act of 1993 could be given any affiliation by any University and as to whether or not any valid B.Ed. degree could be conferred upon the students of such non-recognized institutions. The Hon''ble Division Bench was pleased to hold that the institutions which were not recognized by the NCTE could not be given affiliation by the University and the University cannot admit the students of such non-recognized institutions to the B.Ed. examination. The following observations and/or directions of the Hon''ble Division Bench in the said case are quoted as follows:

This leaves us with the question of further direction to these colleges. It is clear that these colleges have acted in flagrant disregard of the provisions of the Act and rules. All these colleges are bound to be aware of the provisions of the NCTE Act and could not have merely on the basis of affiliation admitted the poor students. We are aware that the students are now going to lose one year which is very precious in their young lives. However, the law must prevail. If the students had been a little careful they would not have sought admission in these colleges. However, we direct all these unrecognized colleges to return all the fees to each and every student. This shall include all the fees recovered from the students. Besides this, each student shall be paid compensation of Rs.5000/- by the unrecognized colleges. We are ordering the compensation as the students have suffered not only on account of their own fault but also on account of the illegal act on the part of the colleges to admit the students. Compliance of this order shall be made within three months from the date of the judgment. In passing this direction, we are relying on the observation made by the Supreme Court in paragraph 39 of the reported decision in Maharshi Dayanand University v. MLR Saraswati College of Education (supra) which we have already reproduced.

Similar question arose in Anjan Bhattacharya''s case (supra) and the Hon''ble Division Bench was pleased to observe that "we adopt the same course as was adopted in the case of Tulshi Bakshi (supra)."

In the other case (W.P. No. 4107(W) of 2006), as aforesaid, the Hon''ble Division Bench took a similar view and was pleased to hold that "all the respondent institutions which are not recognised by the NCTE could not be given affiliation by the Board. The Institutions, which have not followed the provisions of the NCTE Act and are not recognised by the NCTE Authority, had no right to admit students in the said training programme." The said Division Bench was also pleased to give the following direction: "We are aware that the students are now going to lose one year which is very precious in their young lives. But the law must prevail and, accordingly, we direct all these unrecognized institutions to return all the fees to each and every student."

After having perused the aforesaid judgments rendered by the respective Hon''ble Division Benches in the aforesaid cases and having considered the letter and spirit of such judgments, this Court is unable to accept the contention of the petitioner''s learned advocate. Moreover, if the petitioner''s learned advocate''s argument is accepted then in that event one has to come to the conclusion that there has to be an automatic validation of the course conducted by the institution concerned even though such institution has not been recognized by the NCTE. This would lead to absurd situations and the very purpose for which the said Act of 1993 was enacted would be frustrated. This Court is of the clear view that the institution concerned where the petitioner pursued the B.Ed. Course was not duly recognized at the material time and as such the B.Ed. degree obtained by the petitioner is not a valid one.

In such circumstances, this Court does not find any merit in the present writ petition which is, accordingly, dismissed. But before parting with this matter this court has to observe that if the petitioner had been a little careful, the petitioner would have made an appropriate enquiry before seeking admission to the institution concerned for pursuing the B.Ed. Course. Of course, the petitioner has suffered not only owing to her negligence and laches but also owing to the gross illegal act on the part of the respondent Nos.10 to 12. The respondent Nos. 10 to 12 are directed to return all the fees which were recovered, if any, from the petitioner and besides such fees, the said respondent Nos. 10 to 12 shall also pay a compensation of Rs.5000/- to the petitioner. Such return of fees and payment of compensation shall be made by the respondent Nos. 10 to 12 in favour of the petitioner within 12 weeks from the date of communication of this order to the said respondent Nos. 10 to 12.

The appearance, if any, of the petitioner at the written examination, personality test and counselling pursuant to interim orders, passed by this Court without prejudice to the rights and contentions of the parties and subject to the result of the writ petition cannot be of any benefit to the petitioner and has become ineffective in view of the dismissal of the writ petition.

Let urgent Xerox certified copy of this order, if applied for, be given to the parties on compliance of usual formalities.