Puran Education Society vs State of Haryana

G.S. Sandhawalia , J.(Oral) - Vide the amended writ petition, the petitioner-society challenges the order dated 29.07.2015 (Annexure P-25)

whereby its request for grant of recognition/permission to set up the MA Durga Puran College of Education for the course of B.Ed two years

duration with an intake of 100 students has been declined by the respondent No.2-Northern Regional Committee (for short ''NRC'').

Challenge has also been raised to the show cause notices dated 08.10.2013 (Annexure P-23) and 07.01.2015 (Annexure P-24) on the ground

that they had not been served upon the petitioner and, therefore, there was no opportunity to reply and, thus, the order of refusal is also bad in law.

Counsel for the petitioner has given up the other challenges to the denial of permission to the M.Ed course.

The reason for refusal by respondent No.2-NRC is on the ground that there was no proof that the petitioner had dispatched the hard copy

within 7 days from the date of the online application, which had been made on 27.12.2012, as required under the NCTE Regulations, 2009. The

hard copy had been received only on 31.01.2013. Resultantly, on account of the not replying to the show cause notice dated 08.10.2013

(Annexure P-23), the permission was declined under Section 14/15 (3) (b) of the NCTE Act, 1993. Liberty was granted to file an appeal under

Section 18 of the NCTE Act, 1993 within 60 days from the date of the order.

Counsel for the petitioner has vehemently argued that the petitioner was already before this Court by filing the present writ petition on

29.10.2014 and at that point of time the relief sought was for consideration of his application. The petitioner was not aware that any show cause

notice was issued to it, otherwise the necessary proof whether the hard copy had been dispatched within the required period of 7 days would have

been filed. Accordingly, reference is made to Annexure P-22 to show that the dispatch was done by way of registered post on 03.01.2013 to the

respondent No.2 and the necessary requirement had been complied with. In case there was delay in the receipt of the hard copy on 31.01.2013, it

was not the fault of the petitioner, as he had applied within the required period.

Counsel for the respondent-NCTE on the other hand has submitted that there was an efficacious remedy by way of filing an appeal under

Section 18 of the NCTE Act and there is no need for this Court to exercise its extra-ordinary jurisdiction. It is further submitted that on account of

the non-receipt of the reply to the show cause notice, the respondent No.2 was justified in denying the approval.

After hearing counsel for the parties, this Court is of the opinion that the issue of alternative remedy would not stand in the way of this Court, as

substantial justice has to be done to the petitioner, who is aggrieved on account of the non consideration of his case, even though period of more

than 3 years has passed, since the alleged dispatch of the hard copy. It is a matter of record that the petitioner had applied on 27.12.2012 by way

of online application.

In its 218th meeting held between 27.08.2013 to 31.08.2013, respondent No.2, after a period of 8 months, noticed the deficiency, as such and

decided to issue the show cause notice dated 08.10.2013 (Annexure P-23). Thereafter, on 27.11.2014 in its 229th meeting, the respondent No.2

had decided to issue show cause notice to all such minority institutions, whose applications for recognition of B.Ed and Diploma in Elementary

Education were still pending. Resultantly, the second notice dated 07.01.2015 (Annexure P-24) was also issued.

In the written statement filed by respondent No.2, the plea taken was that show cause notices have been issued, but reply has not been

received.

Vide order dated 01.06.2015 passed by this Court, respondents were directed to place on record the show cause notices and other relevant

documents. Eventually record was called for in order to ascertain whether the show cause notices had been sent or not. On 14.10.2015, this

Court noticed the stand of the petitioner that neither two show cause notices nor the order whereby the recognition has been denied, had been

received by him and prayer was made by the petitioner for grant of time to amend the writ petition. Resultantly, the amendment was allowed on

15.12.2015 to challenge the show cause notices also.

Specific averment has been made in Paragraph 6-A of the amended writ petition that the show cause notice dated 08.10.2013 was never

served upon the petitioner.

In the short reply to the amended writ petition, this specific averment has not been controverted.

In such circumstances, this Court comes to the conclusion that the show cause notices were never effectively served upon the petitioner and

the averment made has substance. It is not disputed that as per Regulation-7 of the NCTE Regulations, 2009, which at that point of time, governed

the petitioner, respondent No.2 was to point out the deficiencies within 45 days of the receipt of the applications, which the petitioner was to

remove within 60 days from the date of receipt of communication of deficiencies. The said regulation reads as under:-

Processing of Applications.-

(1) The applicant institutions shall ensure on-line submission of applications complete in all respects along with hard copy of the application and

other documents specified below. However, in case of any inadvertent omissions or deficiencies in the documents submitted, the office of the

Regional Committee shall point out the deficiencies within 45 days of the receipt of the applications, which the applicants shall remove within 60

days from the date of receipt of 4 communication of deficiencies, if any. The on-line application with separate submission of the following

documents only, shall be considered as complete application.

A perusal of the above regulations would go on to show that, the deficiencies have to be pointed out within 45 days of the receipt of the

application. It is the case of the respondents themselves that the hard copy was received on 31.01.2013. The show cause notice was not issued

within 45 days, but was only issued on 08.10.2013, which is beyond the prescribed period of 45 days. Thus, it is apparent that no reasonable

opportunity had been given to the petitioner to remove the deficiencies for approval of the application for recognition and the prescribed procedure

has been violated by the respondent No.2-NRC. Thus, in the facts and circumstances, the alternative remedy of appeal under the Act does not

make out a case for absolute bar for this Court to entertain this writ petition under Article 226 of the Constitution of India, since there is a patent

violation of the statutory provisions of the Act by the respondent No. 2-NRC. The Apex Court in United Bank of India v. Satyawati Tondon

and others, 2010 (8) SCC 110 has noticed the principles of alternative remedy. It was observed that it was a self imposed restraint and the

alternative remedy was a rule of discretion and not one of compulsion. The relevant observations read as under:-

While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution

to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs

for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise

of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is

bound to keep in view while exercising power under Article 226 of the Constitution.

It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason

why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner

can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for

redressal of his grievance.

Similarly, the Apex Court in General Manager, Sh. Siddheshwara Cooperative Bank Ltd. and another v. Ikbal and others, 2013 (10)

SCC 83 has held that an alternative remedy was not an absolute bar to the exercise of the extra ordinary jurisdiction under Article 226 of the

Constitution of India.

In such circumstances, petitioner has been seriously prejudiced and his application has not thus been considered on merits and in the facts and

circumstances of the case, it is a case where the extraordinary jurisdiction is liable to be entertained. Resultantly, the order dated 29.07.2015

(Annexure P-25) declining the approval is quashed.

The petitioner will be at liberty to give a detailed reply to the show cause notices dated 08.10.2013 and 07.01.2015 within a period of two

weeks from today and on the receipt of the said replies, the respondent No.2 will proceed in accordance with law.

Counsel for the respondent-NCTE has submitted that in view of the 2014 Regulations coming in force, the petitioner will have to fulfil the

criteria prescribed under the Regulations.

Needless to say that if a fresh show cause notice is to be issued by the respondent No.2-NRC to point out the deficiencies, it will be open to

the said respondents to do the same and on the receipt of the same, the petitioner shall reply to the same.

With the above said observations, the present writ petition stands allowed.