Hindi Prachara Kendra College of Teacher Education, Poyya, Kodungallur; The Principal, Hindi Prachara Kendra College and Teacher Education, Kodungallur; C.F.I Charitable Trust v. National Council for Teacher Education and Regional Director, National Council for Teacher Education

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` MONDAY, THE 24[TH] DAY OF JULY 2023 / 2ND SRAVANA, 1945 WP(C) NO. 11427 OF 2022 ``` ## **`PETITIONERS:`** ``` 1HINDI PRACHARA KENDRA COLLEGE OF TEACHER EDUCATION, POYYA, KODUNGALLUR POST-680664, THRISSUR, KERALA, REPRESENTED BY TIS MANAGER P.J.MATHEW, SREELAYAM HOUSE, A.V.GEORGE LANE, KADAVANTHRA, KALOOR P.O.-682 017, ERNAKULAM ``` - **`2 THE PRINCIPAL, HINDI PRACHARA KENDRA COLLEGE AND TEACHER EDUCATION, KODUNGALLUR, THRISSUR DISTRICT-680 664`** ``` 3C.F.I CHARITABLE TRUST, J-4/46, KHIRKI EXTENSION, MALVIVA NAGAR, NEW DELHI, REPRESENTED BY ONE OF THE TRUSTEE, C.S.JOSEPH S/O.V.M.SAMUEL, AGED 70 YEARS, CHALLAKKAL HOUSE, KEEKOZHUR, PATHANAMTHITTA DISTRICT-689 672 ``` ``` BY ADVS. ``` ``` SAIBY JOSE KIDANGOOR, BENNY ANTONY PAREL ``` ``` P.M.MOHAMMED SALIH, ANOOP SEBASTIAN PRAMITHA AUGUSTINE, IRINE MATHEW ADITHYA KIRAN V.E, ANJALI NAIR ``` ## **`RESPONDENTS:`** - **`1 NATIONAL COUNCIL FOR TEACHER EDUCATION - NCTE REPRESENTED BY ITS MEMBER SECRETARY, G-7 SECTOR-10 (NEAR SECTOR 10 METRO STATION), DWARAKA, NEW DELHI-110 075`** WP(C) No.11427 of 2022 2 - **`2 THE REGIONAL DIRECTOR,REGIONAL COMMITTEE, NATIONAL COUNCIL FOR TEACHER EDUCATION, G-7, SECTOR-10 (NEAR SECTOR 10 METRO STATION), DWARAKA, NEW DELHI-110 075`** ``` BY ADVS. SHIGA N P ABRAHAM P.MEACHINKARA ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ``` ``` 24.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.11427 of 2022 3 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.11427 of 2022 .................................................................** Dated this the 24[th] day of July, 2023 ## **JUDGMENT** Petitioners have approached this Court challenging Ext.P20 order and for a further direction to the 2[nd] respondent to approve the change of management effected by the 3[rd] petitioner with regard to the 1[st] petitioner college. Petitioners have also sought for a declaration that Ext.P12 clarification letter is not applicable in the facts of the present case. 2. 1[st] petitioner is a College of Teacher Education. 2[nd] petitioner is the principal of the 1[st] petitioner college and the 3[rd] petitioner is the trust, the owner which is currently managing the affairs of the college. It is the case of the petitioners that as per Ext.P1 the college was granted recognition for conducting Secondary Course (B.Ed Course) by the 2[nd] respondent and the said recognition was periodically renewed without any default. After the promulgation of the NCTE Regulation, 2014 Ext.P2 revised provisional recognition order was issued in respect of the 1[st] petitioner college for conducting B. Ed WP(C) No.11427 of 2022 4 course of two-year duration with annual intake of 50 students from the academic session 2015-2016. The college is affiliated to the University of Calicut, as per Ext.P3 order. The college was formerly managed by the one of the members of the society Mrs.Shreeja Muralidharan, who played a pivotal role in the functioning of the college. In the year 2014, she passed away unexpectedly due to cancer. Apart from that the management found it difficult to meet the financial requirements of the college due to severe financial stringency faced by the society. Thereupon the erstwhile owner society decided to transfer the management of the college to the 3[rd] petitioner herein as per Ext.P4 minutes dated 17.03.2018. The 3[rd] petitioner has several educational institutions under its management and it is a non-profit organization having interest in the field of education and services with sufficient financial resources. In view of the stipulation in the regulation of NCTE that the management running the college should be in possession of land of its own, the 3[rd] petitioner as per Ext.P5 sale deed purchased the landed property together with a building wherein the college is situated. In order to ensure that the students in the college are not affected due to the change in the management, Exts.P6 and P6(a) no objection certificates were obtained from the Government of Kerala Higher WP(C) No.11427 of 2022 5 Education Department and the Central Hindi Directorate, Ministry of Human Resources for transfer of ownership of the college. The University of Calicut has also issued Ext.P7 order sanctioning the transfer of the management of the college to the 3[rd] respondent. After the change of management of the college, the new management revamped the entire model and infrastructure of the college and provided excellent faculty members to provide quality education to the students. The 3[rd] petitioner has complied with all the mandates for running a B.Ed. College regarding the land, buildings and other infrastructures and also deposited Rs.16,00,000/- towards endowment fund and reserve fund as required by the respondents. Thereafter Ext.P8 request was made by the 3[rd] petitioner before the 2[nd] respondent along with all the relevant documents for approval of change of management in its name. Thereafter Ext.P9 show cause notice was issued by the NCTE to which Ext.P10 reply was given by the petitioners. Thereafter Ext.P11 show cause notice styled as a final show cause notice was issued to which Ext.P11(a) reply was given by the petitioners. For withdrawing the recognition, etc. and for not approving the change of management, the 2[nd] respondent relied on Ext.P12 clarification letter which mandates that “in view of lack of any specific provisions in the regulations about change in the WP(C) No.11427 of 2022 6 management, no request needs to be considered wherein a society/trust/company intends to handover a recognized TEI to any other society/trust/company as it amounts to commercialization of teacher education”. Thereupon by Ext.P13 order dated 28.06.2021, the 2[nd] respondent withdrew the recognition of the 1[st] petitioner college and the said order was issued essentially relying on Ext.P12 clarification letter. Petitioners relying on Ext.P14 show cause notice dated 20.06.2019 would contend that in respect of a similarly situated college by name Vinooten Shikshana Sevasams the Rural College at Koppal, Karnataka, the transfer made to Rajeev Gandhi Rural Education was allowed by the very same respondent. Aggrieved by the withdrawal of recognition petitioners preferred Ext.P15 statutory appeal before the 1[st] respondent. The 1[st] respondent considered the entire aspects of the issue in question, perused the relevant documents and after hearing the concerned parties set aside Ext.P13 withdrawal order as per Ext.P16 order and remitted the matter back to the 2[nd] respondent for reconsideration. While so the petitioners have approached this Court by filing W.P.(C) No.15743 of 2021 which was disposed of as per Ext.P17 judgment taking note of Ext.P16 order and directing the 2[nd] respondent to reconsider the matter in the light of Ext.P16 order passed by the Appellate Authority. To the utter shock WP(C) No.11427 of 2022 7 and surprise of the petitioners by Ext.P18 order the 2[nd] respondent entered a finding that the change of management of the 1[st] petitioner college amounts to commercialization. Though the 2[nd] respondent published Ext.P18 minutes of the decision taken, the petitioners were not issued with any notice indicating the status of the management of the college and thereupon the petitioners were constrained to approach this Court again by filing W.P.(C) No.6054 of 2022 which was disposed of by Ext.P19 judgment with a direction to the 2[nd] respondent to pass order consequent to Ext.P16 order passed by the Appellate Authority. Thereafter Ext.P20 order was issued wherein Ext.P13 order was confirmed holding that the transfer of the 1[st] petitioner college to the 3[rd] petitioner for sale consideration amounts to commercialization. It is aggrieved by the same the petitioners have approached this Court. 3. The main contention raised by the petitioners is that in the absence of any law, order or regulation under the NCTE Act prohibiting the change of management of college to which the recognition is granted, the decision taken by the 2[nd] respondent as is evident from Ext.P20 is absolutely arbitrary and unjust and violative of NCTE Act and the Regulations. Petitioners contended that such change of management has been approved by the 2[nd] respondent WP(C) No.11427 of 2022 8 himself in respect of a similarly situated college and that the petitioners have been discriminated in the matter of approval of change of management. Petitioners further contended that by Ext.P16 appellate order all the aspects have been considered in detail wherein the Appellate Authority has noted that the appellants have submitted documents covering all the six grounds stated for withdrawal of recognition in Ext.P13 and thereafter remitted the matter back for reconsideration. This Court in Ext.P19 judgment has entered a finding that the Appellate Authority has found in favour of the petitioners and directed the respondents to dispose of the matter consequent to Ext.P16 order issued by the Appellate Authority. 4. A detailed counter affidavit has been filed on behalf of the respondents wherein it is specifically contended that the transfer of management of the college was for a consideration to the tune of Rs.3.63 lakhs and that NCTE as per Ext.R1(a) (which is also produced as Ext.P12 in the writ petition) clarified that since there is no provision for change of management in the Regulations, no request need to be considered as it amounts to commercialization of teacher education. So, on the basis of Ext.R1(b) the stand of the respondents is that they are well within their powers to withdraw the recognition already granted. WP(C) No.11427 of 2022 9 5. The question to be considered is as to whether the recognition of the 1[st] petitioner college could be withdrawn based on Ext.P12. 6. Even on a perusal of Ext.P12 communication relied on by the respondents it is clear that there is no specific provision in the Act or the Regulation regarding change of management and thereafter the same is to be regulated by Ext.P12 communication. The question is as to whether when there is no provision in the NCTE Act or in the Regulation can a restriction be imposed based on an internal communication in the nature of Ext.P12. Admittedly the statutory regulation does not contain any provision or rather any prohibition on recognition of a teacher’s training institution for the reason that the same has been transferred for a valid consideration. The Apex Court in _**Employees’ State Insurance Corporation v. Union of India and others ((2022) 11 SCC 392)**_ while considering the event of conflict between executive instructions and statutory regulations entered a finding that the internal communication of the organization will not have force of law until enforced through amendment to the recruitment rules. The Apex Court after considering the various judgments on the point held that the regulations will have precedents over the office memorandum. Petitioners also relied on the judgments of the Apex Court in _**State of Sikkim v. Dorjee Tshering Bhutia and**_ WP(C) No.11427 of 2022 10 _**others ((1991) 4 SCC 243), Commissioner of Central Excise, Nagpur v. Gurukripa Resins Private Limited ((2011) 13 SCC 180)**_ and _**Bengal Iron Corporation and another v. Commercial Tax Officer and others ((1994) Supp.1 SCC 310)**_ in support of their contentions. The NCTE Act or the Regulation does not provide for any prohibition on the transfer of management for a sale consideration and therefore without a statutory prescription in this regard or by incorporating appropriate provision in the Act or in the Regulation there cannot be an interdiction on the transfer of management of the college whereby entailing cancellation of the recognition already granted. Ext.P12 is only an internal communication from the National Council for Teacher Education to the Regional Directors of the National Council for Teacher Education which cannot have any binding force when the statute does not prescribes any prohibition on transfer of management of the college and the consequential cancellation of the recognition granted to the institutions like the petitioners. 7. Even though in Ext.P16 appellate order all these aspects were dealt with in detail and thereafter set aside Ext.P13 order with a direction to the 2[nd] respondent to reconsider the matter, while issuing Ext.P20 order none of these contentions were considered. In view of WP(C) No.11427 of 2022 11 the above, Ext.P20 order is set aside with a consequential direction to the 2[nd] respondent to reconsider the request of the petitioners to approve the change of management strictly in accordance with law, after affording an opportunity of being heard to the petitioners and a final decision in this regard shall be taken within an outer limit of three months from the date of receipt of a copy of this judgment. With the abovesaid direction the above writ petition is allowed. Sd/- **VIJU ABRAHAM** **JUDGE** cks WP(C) No.11427 of 2022 12 ## **`APPENDIX OF WP(C) 11427/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE RECOGNITION ORDER DATED 30.09.2005 ISSUED BY THE 2ND RESPONDENT ``` - `Exhibit P2 TRUE COPY OF THE REVISED PROVISIONAL RECOGNITION ORDER DATED 13.05.2015 ISSUED BY 2ND RESPONDENT TO THE PETITIONER` - `Exhibit P3 TRUE COPY OF THE CONTINUES` - `AFFILIATION DATED 02.07.2021 BY THE 3RD RESPONDENT UNIVERSITY` - `Exhibit P4 TRUE COPY OF THE MINUTES OF THE MEETING OF THE FORMER SOCIETY DATED 17.03.218 WITH ENGLISH TRANSLATION` ``` Exhibit P5TRUE COPY OF THE SALE DEED NO.448/2018 OF MALA SUB REGISTRAR OFFICE DATED 28.03.2018 EXECUTED IN FAVOUR OF THE 3RD PETITIONER ``` ``` Exhibit P6TRUE COPY OF THE NOCS DATED 15.11.2018 FROM THE GOVT OF KERALA HIGHER EDUCATION DEPARTMENT AND CENTRAL HINDI DIRECTORATE , MINISTRY OF HUMAN RESOURCES AND DEVELOPMENT (MHRD) ``` ``` Exhibit P6ATRUE COPY OF THE NOCS DATED 24.12.2018 FROM THE GOVT OF KERALA HIGHER EDUCATION DEPARTMENT AND CENTRAL HINDI DIRECTORATE , MINISTRY OF HUMAN RESOURCES AND DEVELOPMENT (MHRD) ``` ``` Exhibit P7TRUE COPY OF THE SANCTION ORDER DATED 21.05.2020 ISSUED BY 3RD RESPONDENT UNIVERSITY ``` WP(C) No.11427 of 2022 13 - `Exhibit P8 TRUE COPY OF THE REQUEST DATED 28.09.2020 SUBMITTED BEFORE THE 2ND RESPONDENT` - `Exhibit P9 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 15.09.2020` - `Exhibit P10 TRUE COPY OF THE REPLY TO THE SHOW CAUSE NOTICE DATED 21.10.2020 SENT BY THE PETITIONER` - `Exhibit P11 TRUE COPY OF THE FINAL SHOW CAUSE NOTICE DATED 12.11.2020 ISSUED BY THE 2ND RESPONDENT` - `Exhibit P11A TRUE COPY OF THE REPLY NOTICE DATED 04.12.2020` - `Exhibit P12 TRUE COPY OF THE CLARIFICATION LETTER DATED 23.12.2016` - `Exhibit P13 TRUE COPY OF THE ORDER F.NO.SRO/NCTE/APS03885/B.ED/399TH/(KL )/2021/126683 OF THE 2ND RESPONDENT DATED 28/6/2021 WITHDRAWING THE RECOGNITION OF THE COLLEGE` - `Exhibit P14 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 20.6.2019 ISSUED BY THE 2ND RESPONDENT` - `Exhibit P15 TRUE COPY OF THE APPEAL REPORT DATED 27.7.2021 FILED BY THE PETITIONER COLLEGE BEFORE THE 1ST RESPONDENT` - `Exhibit P16 TRUE COPY OF THE APPELLATE ORDER DATED 4.10.2021 ISSUED BY THE 1ST RESPONDENT` ``` Exhibit P17TRUE COPY OF THE HIGH COURT ORDER DATED 16.11.2021 IN WPC 15743 OF 2021 Exhibit P18TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING ISSUED BY ``` WP(C) No.11427 of 2022 14 ``` THE 3RD RESPONDENT IN THEIR OFFICIAL WEBSITE ``` ``` Exhibit P19TRUE COPY OF THE JUDGMENT IN WPC 6054 OF 2022 Exhibit P20TRUE COPY OF THE ORDER CONFIRMING THE WITHDRAWAL ORDER OF 28.06.2021 DATED 15.03.2022 ``` ``` RESPONDENT ANNEXURES ``` ``` Annexure R1(a)A true copy of the Letter F.No.49- 3/2016/NCTE/NS dated 23.12.2016 issued by the 1st Respondent. Annexure R1(b)A true copy of the Letter No. dated F.No.49-3/2016/NCTE/NS dated 08.12.2016 issued by the 1st Respondent ```