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Judgment
Hasnain Massodi, J.—""He who opens a school door, closes a prison gate"" is an old adage. Education helps one to shape up into a
responsible and law abiding individual, ready to make fruitful contribution to the society. Educating an individual has positive spillover for whole
society; because what is society expect a group of individuals. It is therefore rightly called the movement from darkness to light, an ornament in
prosperity and a refuge in adversity. Education is also a means to empower downtrodden, marginalized and deprived sections of society. It plays
key role in developing a democratic attitude and ensuring adherence to rule of law and over all national development. One of the renowned world
leaders reminding his people of importance of education in nation building has said ""our progress as a nation can be no swifter than our progress in
education the human mind is our fundamental resource."" Acknowledging importance of education in realizing constitutional goals, framers of
Constitution have included it in Directive Principles of State Policy in Constitution of India and Constitution of Jammu & Kashmir. Articles 41,45
and 46 embody what is broadly labeled has right to education, likewise section 20 of Constitution of Jammu & Kashmir casts a similar obligation
on the State Government. Article 21-A Constitution of India goes a step further and provides for free and compulsory education to all children of
the age of 6 to 14 years. When we highlight importance of education our attention necessarily is to go to teacher saddled with responsibility to
educate students, in particular, at an impressionable age. It is teacher at primary and middle level who is better placed to inculcate values held dear
by the society in the students and help them develop a rational and scientific attitude free from prejudice in all its manifestations. It has been said,
that ""a teacher affects eternity, he can never tell where his influence stops"". It is therefore necessary that teacher must be well trained, well oriented
and with the aptitude for the task, he is to perform.
National Counsel for Teacher Education (NCTE)- a statutory body of Government of India constituted under section 3 of NCTE Act, has been
all along emphasizing importance of teacher education programs to equip teachers with necessary skills and enable them to play their role in nation
building.
The Jammu & Kashmir Government taking clue from the NCTE recommendations sometime in 2002 decided to introduce two years
Elementary Teachers Training Course (ETTC). As the government did not have necessary financial resources available to set up ETT Institutes,
private actors were allowed to step in and set up Elementary Teachers Training Institutes (ETT Institutes for short) to offer and run the Course.
Section 2(n) J&K School Education Act, 2002 brings such an Institute within definition of ""School"" for the purposes of the Act. Section 3 of the
Act, makes provisions of the Act, applicable to all Schools in the State. Elementary Teacher Training Institutes (ETT Institutes, for short) are
therefore to abide by the provisions of the J&K School Education Act, 2002. Section 11 of the Act prohibits establishment or operation of a
private school without permission from the State Government or the Authority empowered by State Government in this regard. It empowers the
Government to prescribe procedure to be followed for grant of permission to establish, and run private schools. In terms of section 12 of the Act,
only such private school(s) as are recognized are to be permitted to function. Section 29 of the Act empowers Government to make rules for the
purpose of carrying into effect the provisions of the Act. The rules inter alia, may provide for establishment and maintenance of schools, grant of
permission to set up private schools, recognition of private schools, standards of education, course of study and the procedure for admission of
students.
The State Government in exercise of powers under section 29 has prescribed Jammu &/Kashmir School Education Rules 2010. Rules 6(i)(f)
and (g) deal with ETT Institutes.
One of the conditions to allow a private school to be established and to function, is to have affiliation with Board of School Education. The State
Government at the time it is approached by a promoter for permission to establish a private ETT Institute and the Board at the time it is requested
to grant affiliation to the Institute, are in terms of the J&K School Education Act 2002 and J&K State Board of School Education Act 1975, to
ensure that Institute proposed to be set up has requisite facilities - infrastructure and manpower to run it and impart training to the candidates
enrolled in the Institute.
To maintain the standards of training in ETT Institutes, the Board regulates the admission to such Institutes according to procedure laid down by
the Board. A candidate desirous of getting admitted in an ETT Institute is to satisfy eligibility criteria i.e. Higher Secondary Part-II 10+2 with 45%
marks in case of general category and 40% in case of reserved category and apply for admission to the Board. Once a notification in this regard is
published, applications are to be processed in the Board office and referred to Centralized Admission Committee for making selection of the
candidates for the particular academic session. As an aspirant for admission is given liberty to indicate the preference of the Institute he/she would
like to join, the Centralized Admission Committee after finalization of the selection process allots the selected candidates to the Institutes having
regard to the preference indicated.
The State Government in order to regulate admission in an orderly manner and fix a time schedule for submission of applications, finalization of
selection process, counseling, admission, commencement of classes and annual examination etc, vide Government order No. 100- Edu to 2011
dated 10.2.2011 issued a calendar for receipt of applications, finalization of selection process etc. The calendar was modified vide Government
order No. 452-Edu of 2011 dated 10.8.2011. The calendar applicable to the session 2011-2013 may be tabulated hereunder:
The Board, itself, did not adhere to the calendar, notified vide aforementioned Government Order as regards academic session 2011-13. It
invited applications from the eligible candidates for admission to ETT Course for session 2011-2013 on 24.5.2011. The last date for receipt of the
applications/admission was fixed as 25.6.2011. Counseling required to be completed from 1st September to 15th September was delayed by
more than three months and conducted from 12th December 2011 to 12th January. Resultantly allotment of candidates and commencement of
classes also got delayed.
The Notification did not find adequate response. As against 70,000 ETTC seats available in 437 ETT Institutes in Jammu Division, only 23645
candidates responded to the notification. The position was more disappointing at the time of counseling. Out of 23645 applicants only 9811
candidates turned up for counseling. The Board, having regard to the choice indicated by the candidates, allotted 9811 students to 257 ETT
Institutes; Two hundred forty four (244) Institutes did not get even a single candidate as none of the 9811 students participating in counseling,
opted for these Institutes. Having regard to the intake capacity of 437 ETT Institutes in Jammu Division, totaling 70,000 seats a little less than 10%
seats were filled up and more than 90% seats remained unfilled.
Failure to attract the candidates and get candidates allotted to the full intake capacity or a substantial part thereof, lead to financial crisis for the
Institutes. The ETT Institutes to meet the crises went for harvesting operation beyond the cut-off date, to hunt for the candidates in the State and
neighboring states and admit such candidates in their respective Institutes on their own, without participation of the Board and its Centralized
Admission Committee and that too after the cut-off date. They succeeded in their design and were able to persuade more than twelve thousand
candidates to take admission in ETT Course run by these Institutes.
The ETT Institutes, parallel to the above operation, started a campaign to persuade the Board to extend the date of counseling, permit spot
counseling and accord post facto regularization to the admissions made by them. The campaign did not bear any fruit, though the Institutes were
able to garner some support from the Board officials at the lower rung. The Board refused to register as many as 12476 candidates admitted by
ETT Institutes on their own beyond cut-off date and without getting the admissions made through Centralized Admission Committee and therefore,
treated as illegal. Resultantly, the candidates admitted by the ETT Institutes on their own, were not allowed to appear in the examination conducted
by the Board.
Aggrieved with the refusal of the Board to accord registration to 12476 candidates enrolled by the ETT Institutes on their own and to allow
them to appear in the examination, conducted by the Board for 9811 candidates admitted through Centralized Admission Committee, the ETT
Institutes approached this court with seven writ petitions. The candidates enrolled, also filed a separate writ petition. In all the writ petitions, the
decision taken by the Board not to register 12476 candidates admitted by ETT Institutions on their own, was questioned on the grounds set out
therein and a writ of mandamus sought, commanding respondents to register these candidates and extend to them all the facilities as given to 9811
candidates admitted through Centralized Admission Committee, constituted by the Board.
The main plank of the case set up by the ETT Institutes and the candidates enrolled, was that the admissions were made on the assurance
extended by the Board authorities from time to time that the admission made, would be regularized and also that as the Board itself had failed to
adhere to the schedule notified vide order No. 452-Edu of 2011 dated 10.8.2011, it did not have a right to blame ETT Institutes of having made
admissions on their own after cut-off. date, more so when the Board had admitted candidates belonging to reserved categories after ETT Institutes
admitted 12476 students.
The writ court on going through the pleadings as well as record made available to it by the respondents and upon hearing Ld. Counsel for the
parties, did not find any merit in the writ petitions. The Court emphasized that as the admissions were made de hors rules and in violation of
procedure prescribed, the petitioners did not deserve any indulgence. The writ court after making a thorough survey of the rules, regulations and
procedure laid down in the Brochure, issued by the Board while inviting applications from the eligible candidates in admission to ETT Courses, as
also case law on the subject, held the writ petitions to be meritless. All the eight writ petitions were accordingly dismissed vide writ court judgment
dated 23.8.2013.
The judgment rendered by Ld. Single Judge, dismissing all the eight writ petitions, is questioned in the Letters patent Appeals on hand on the
grounds set out in the memo of appeals.
It is pleaded that while in terms of Government order No. 452-Edu of 2011 dated 10.8.2011, the allotment of candidates to ETT Institutes
was to be made between 1st to 15th September and the academic session to commence from 20th September every calendar year, the Board,
because of poor response was not in a position to organize counseling till 26.11.2011 and that counseling was held from 12.12.2011 to
11.01.2012. The ETT Institutes through their Association are said to have met Chairman and Secretary Board of School Education for reopening
of admission and to have received an assurance that admissions would be reopened. The promise made is said to be reflected in communication
dated 27.3.2012 addressed by respondent No. 4 i.e. Secretary State Board of School Education to the Commissioner Secretary to Government
Education Department wherein their request for spot counseling inter alia was projected by the respondent No. 4. It is pleaded that ETT Institutes
encouraged by the promise made by respondents 3 and 4 that admission made would be regularized, admitted candidates on their own. Reference
is also made to Government order No. 7 dated 8.9.2012. where by a Committee is said to have been constituted to consider regularization of left
out candidates as also to communication No. F (Adm) B) Cu/12 dated 27.3.2012, to re-enforce the claim. Ld. Single Judge while rendering
judgment dated 23.8.2013 called in question in the LPA, is said to have ignored all the important communications extending support to appellants'
case.
We have gone through the writ court judgment dated 23.8.2013, the memo of appeals and the writ record. We have heard Ld. Counsel for
the parties at length.
There is no disagreement on the facts. It is admitted case of the parties that 12476 students admitted by appellant Institution, did not go
through prescribed procedure and did not participate in selection process undertaken by the Centralized Admission Committee. The enrolled
students admittedly did not either apply in response to Advertisement Notice dated 12.5.2011 or failed to participate in the counseling held from
12.12.2012 to 11.01.2013. The appellants justified their admissions, made patently in violation of admission procedure, on the ground that the
appellants Institutes were encouraged to make the admission, by the promise extended by the Board officials that such admissions would be
regularized. The assurance extended according to the appellants, is gatherable from internal communications exchanged by the Board officials and
the officers in the Education Department of State Government.
To conclude whether the admissions were made on the basis of any promise given by the respondents 3 and 4 i.e. Chairman and Secretary
State Board of School Education, we have to go to the communications sought to be pressed into service by the appellants. However, before
giving a closer look to record, it would be advantageous to waft through the case law on subject, to understand sanctity attached to rules and
regulations governing recognition of private ETT Institutes, their affiliation to Board, and the admission procedure required to be followed by such
Institutes.
The question arising out of the present controversy is whether it would be permissible, in the facts and circumstances of the case, to command
the Board to regularize the admissions made in violation of the procedure prescribed therefor and in disregard of calendar fixed by the Board and
to allow the candidate enrolled to sit in Board Examinations. The issue directly or indirectly relates to importance of academic discipline.
Learned counsel for the parties to lend support to their respective stand place reliance on law laid down in;
i) Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others,
ii) 1985 (4) SCC 370
iii) 1991(3) SCC-87
iv) St. John's Teacher Training Institute (for Women), Madurai, Vs. State of Tamil Nadu and others, etc. etc.,
v) 1997 (7) SCC 253
vi) 2003 (8) Supreme Today 65
vii) P.A. Inamdar and Others Vs. State of Maharashtra and Others,
viii) 2012 (2) SCC- 425.
ix) 2013 (1) SCC-223
x) 2013 (5) Supreme Today 385
It is not necessary to load this Judgment with a detailed reference to all the reported cases cited at Bar. Reference is required to be restricted to
the case law directly related to establishment of Teachers Training Institutes and the admission procedure to be followed by such Institutes.
In State of Tamil Nadu and Others Vs. St. Joseph Teachers Training Institute and Another, , candidates admitted by unrecognized Institutes
were not allowed to sit in examination conducted by the Education Department of State Government. Aggrieved with the decision taken by the
State Government not to permit such students to appear at public examination held by the Government, the candidates approached the High Court
for a direction to the respondent State to allow them to appear at such examination. Full Bench of Madras High Court held that in absence of
recognition accorded to an Educational Institute the students of such Institute were not entitled to appear in the public examination held by the
Government. However, the Full Bench on account of ""Persistent and persuasive stand of the petitioners"" and on humanitarian grounds, directed the
State Government to allow the candidates to appear in supplementary examination. Supreme Court disapproving course adopted held;
...There is no dispute that the respondent educational institutions were established for imparting education in Teachers Training Course without
obtaining recognition from the Education Department of the State Government. In the absence of recognition from the Education Department the
students pursuing their studies in these institutions could not appear at the public examination held by the Education Department. The Full Bench
rightly held that students of unrecognized educational institutions could not be permitted to appear at the public examination held by the
government. On its own findings, the Full Bench should have refused relief to the petitioners, but it was persuaded to issue directions on
humanitarian grounds which were in effect destructive of its own findings, and the law laid down by it. The Full Bench issued directions permitting
the students to appear at the examination and directing the appellant authorities to make a special provision for supplementary examination. These
directions in our opinion were unauthorized and wholly unjustified.
In St. John's Teacher Training Institute (for Women), Madurai, Vs. State of Tamil Nadu and others, etc. etc., :
The Teachers Training Institutes granted temporary recognition failed to comply with the conditions so as to be entitled for permanent recognition.
Students enrolled in such Institutes were not permitted to appear in the examination conducted by the university. The High Court on a petition filed
by the students granted interim relief, in effect permitting the students to appear at public examination. However, the writ petitions were ultimately
dismissed. Supreme Court while upholding judgment whereby the writ petition was dismissed, observed that High Court should not have passed
interim order directing the respondents to allow the teachers of unrecognized Institutes to appear in the public examination in question. The court
dismissing the appeal by special leave, emphasized the importance of Teacher Training Institutions by extracting following observation made by it in
N.M Nageshwaramma v. State of Andhra Pradesh 1986 suppl. SCC 166.
The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose on the innocent and unwary children,
teachers who have not received proper and adequate training. True they will be required to pass the examination but that may not be enough.
Training for a certain minimum period in a properly organized and equipped Training institute is probably essential before a teacher may be duly
launched.
The Apex Court also reproduced following observation made by it in Andhra Kesari Educational Society Vs. Director of School Education and
Others, :
...Though teaching is the last choice in the job market, the role of teachers is central to all processes of formal education. The teacher alone could
bring out the skills and intellectual capabilities of students. He is the 'engine' of the educational system. He is a principal instrument in awakening the
child to cultural values. He needs to be endowed and energized with needed potential to deliver enlightened service expected of him. His quality
should be such as would inspire and motivate into action the benefited. He must keep himself abreast of ever changing conditions. He is not to
perform in a wooden and unimaginative way. He must eliminate f issiparous tendencies and attitudes and infuse nobler and national ideas in younger
minds. His involvement in national integration is more important, indeed indispensable. It is, therefore, needles to state that teachers should be
subjected to rigorous training with rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill trained or sub-standard
teaches would be detrimental to our educational system, if not a punishment on our children. The Government and the University must, therefore,
take care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration.
The matter again fell for consideration of Supreme Court in National Council for Teacher Education and Another Vs. Venus Public Education
Society and Others, .
In this case also the dispute related to adherence by the Teachers Training Institutes to the standards prescribed for recognition by Notational
Council for Teachers Education (NCTE). The order granting recognition after litigation between the parties, stipulated that the Institutes could
admit students only after it obtained affiliation from examining body and satisfied the post recognition, conditions set out in relevant regulations. The
High Court in the second round of litigation held the Institute entitled to admit 50 students for academic session 2011-2012. Supreme Court setting
aside order of the High Court allowing respondent Institute to admit students without fulfilling conditions laid down in the formal recognition order
issued by NCTE held:
...Acquisition of knowledge and obtaining of necessary training for imparting education have their immense signification. As C. Simmons would
like to put it ""The secret of successful teaching is to teach accurately, thoroughly, ""and earnestly"" and one may fruitfully add that accuracy and
thoroughness can be achieved by cultivated education, matured training a keen intellect. That is why teaching becomes a teacher's passion and
religion. A good, teacher, in a way, represents the country's orderly civilization. A teacher is expected to kindle interest in the taught by method of
investigation, incessant implantation of knowledge and demonstration of experience that is replete with intellectual pragmatism. A student who is
keen on getting training has to keep in mind the concept of reason, conception of logic and sanctity of rationality. He is expected to distance himself
from habitual disobedience and unfettered feeling, for a civilized society which is governed by the rule of law does not countenance such
characteristics. The aspiration to become a teacher after obtaining training required these qualities as they constitute the base on which the
superstructure is built.
....
It is to be clearly stated that an institution that is engaged or interested in getting involved in imparting a course for training has to obey the
command of law in letter and spirit. There cannot be any deviation. But unfortunately, some of the institutions flagrantly violate the norms with
adamantine audacity and seek indulgence for the court either in the name of mercy or sympathy for the students or financial constraint of the
institution or they have been inappropriately treated by the statutory regulatory bodies. None of these grounds justify deviation. The case at hand
graphically depicts deviations but the High Court, putting the blame on the statutory authority has granted relief to the respondent institution which
is impermissible.
Supreme Court in Adarsh Shiksha Mahavidyalaya and Others Vs. Subhash Rahangdale and Others, emphasizing importance of teachers and
their training referred to the following observation made by it in The Ahmedabad St. Xavier's College Society and Another Vs. State of Gujarat
and Another, ;
Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonized by education. Where there is
complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of
the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no
discord or challenged will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of
pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications
and the character of the teachers are really important. The minority institutions have the right to administer institutions. This right implies the
obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks and balances in the
shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to
be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A
minority institution should shine in exemplary eclecticism in the administration of the institution. The best compliment that can be paid to a minority
institution is that it does not rest on or proclaim its minority character.
Reference was also made to following principles laid down in State of Maharashtra Vs. Vikas Sahebrao Roundale and others, ;
...The teachers plays pivotal role in moulding the career, character and moral fibers and aptitude for educational excellence in impressive
young children. Formal education needs proper equipping of the teachers to meet the challenges of the day to impart lessons with latest techniques
to the students on secular, scientific and rational outlook. A well-equipped teacher could bring the needed skills and intellectual capabilities to the
students in their pursuits. The teacher is adorned as Gurudevobhava, next after parents, as he is a principal instrument to awakening the child to the
cultural ethos, intellectual excellence and discipline. The teachers, therefore, must keep abreast of ever-changing techniques, the needs of the
society and to cope up with the psychological approach to the aptitudes of the children to perform that pivotal role. In short, teachers need to be
endowed and energized with needed potential to serve the needs of the society. The qualitative training in the training colleges or schools would
inspire and, motivate them into action to the benefit of the students. For equipping such trainee students in a school or a college, all facilities and
equipments are absolutely necessary and institutions bereft thereof have no place to exist nor entitled to recognition. In that behalf compliance with
the statutory requirements is insisted upon. Slackening the standard and judicial fiat to control the mode of education and examining system are
detrimental to the efficient management of the education.
An overview of law laid down on the subject would make it abundantly clear that while because of contemporary compulsions like ever
growing student population, scarcity of funds, may make it necessary to allow private actors a role in the field of Education, Training and Human
Resource Development, such Institutes are required to strictly adhere to the academic discipline reflected in rules and regulations and University
Statutes. Even a minor departure from such rules and regulations is bound to frustrate the very object of allowing the private Institutes space in the
field of Education and Human Resources Development. In case the private Institutes are given free hand in making admissions without adhering to
merit, prescribing syllabi and conduct of examinations, they are likely to add thousands of under-educated and under-trained pass outs from such
institutes, to the National Human Resources pool. This will set in a chain reaction of compromises with quality of education and training imparted in
the education institutes of the country and also in the quality of development the country is keen to witness. In the said background even a minor
deviation from the set procedure is to be frowned upon and not ignored in the name of equity and compassion. Let us proceed to examine the
appellants case against the backdrop of principles laid down by the Apex Court in the reported cases.
The appellants as already pointed out made the plea of ""Promissory estoppel"" as the main edifice of their case. They made an effort to
persuade the writ court to draw inference of 'promissory estoppel' from the communications exchanged by their Association with the Government
and the Board authorities and the inter se communications between the Board and the functionaries of State Government. The communications
relied upon need to be noticed.
Secretary Board vide communication dated 27.3.2012 forwarded the representation made by promoters of ETT Institutes of Jammu Division
for reopening admission and spot counseling to the Secretary to Government School Education Department Civil Secretariat Jammu. A meeting of
stake holders was convened in the office chamber of Commissioner Secretary to Government Education Department on 26.4.2012. The
Association of ETT Institutes vide communication dated 7.5.2012, referring to the meeting held reiterated the request for reopening of admission
and spot counseling.
The Board confronted with a unprecedented situation vide order dated 8.9.2012 constituted two committees one for Srinagar and another for
Jammu to look into the matter. The Committees were to examine regularization of left out candidates in ETT Course for session 2011-13.
However, Director (Academics), Member Secretary Central Admission Committee vide communication date 7.11.2012 addressed to
Secretary to Government School Education Department Civil Secretariat Jammu, informed him that 211 ETT Institutes of Jammu Division
submitted a list of 11925 candidates and 24 such Institutes had sought reconsideration of their candidates included in their list. Secretary to
Government Education Department was further informed that no information was available in respect of Kashmir Division. The Director
(Academics) conveyed his no objection to regularization of admissions made by ETT Institutes on their own by the Government, provided they
were warned that no such unauthorized admission should be carried out in future. It was further recommended that ETT Institutes be disaffiliated in
case of any violation in future. A similar communication was addressed by Dr. Shiekh Bashir Ahmad, Chairman of the Board on 17.11.2012 to the
Secretary to Government Education Department, Civil Secretariat, Jammu.
The matter did not make any significant headway and the association of ETT Institutes resorted to coercive measures like sit in dharnas in the
Board premises at Jammu. The Board responded to the new situation by constituting vide order dated 29.11.2012, a committee headed by
Secretary Board as its convener to have deliberations with the representatives of ETT institutes. The Committee held meeting with representatives
of ETT Institutes on 29.11.2012. The Board on 30.11.2012 asked the ETT Institutes to submit the list of candidates admitted by them on their
own with necessary certificates so as to enable the Board to examine eligibility of such candidates.
The Board of Governors of the Board in its meeting held on 31.1.2013 resolved as under:
Subject to the final outcome of the writ petition/s on the subject pending before the Hon'ble High Court of the J&K State, it was decided by the
majority that no examination be conducted for the candidates, who have been admitted and enrolled by the promoters of ETT institutions of their
own will for the academic session 2011-2013. The genuine students for the course admitted by the BOSE for 2011-2013 be examined. Further, it
was also resolved that separate examination/admission calendar be framed and notified separately for the summer and Winter Zones of the J&K
State.
The ETT Institutes again resorted to dharnas and protests and on 31.4.2013, two promoters of ETT Institutes climbed a Mobile tower at
Rajpora, Mangotrian, Jammu and threatened to immolate themselves in case their demand for regularization was not accepted. The Board of
Governors at the instance of Education Minister held a special meeting on 12.4.2013, to reconsider the matter and resolved as under;
that there is less merit to revisit the previous decision, as such, the decision taken in the Board meeting held on 31st January 2013, regarding
regularization of admissions (made of their own) numbering 12,476 candidates of Elementary Teacher Training. Course (ETTC) for the Academic
session 2011-2013 be dealt with in reference to Section 32 of J&K BOSE Act, 1975. With a view to remove the difficulty, the matter be referred
to the Government for taking it to the cabinet for addressing the issue in pursuance of the said section, which is reproduced here as under:--
If an difficulty arises as to the first constitution of the Board and any of its committees after the commencement of this Act, or otherwise in giving
effect to the provisions of this Act, the Government, as occasion may require, may by order do anything which appears to them necessary for the
purpose of removing the difficulty"".
The Secretary to Government School Education Department with the approval of Hon'ble Deputy Chief Minister (Minister Incharge Education
Department) submitted the following resolution to the cabinet for consideration and approval
i) The Admission of 12,476 candidates admitted by the promoters of private institutions at their own level may be regularized as one time
exception, as a goodwill gesture and in the best interest of non-local students community, without forming any precedence for future.
ii) All the promoters shall furnish an affidavit duly sworn in before Judicial Magistrate 1st Class to the effect that in future they will not repeat any
such practice and shall abide by the SRO-123 and their institution shall be derecognized if any violation of the rules occurs in future.
iii) The examination of all ETT aspirants shall be conducted under the overall supervision of senior KAS Officers in fair and just manner.
iv) A fresh inspection needs to be carried out for ascertaining the intake capacity, running more than one course in the same premises, renewal of
NOC by the Government strictly in term of SRO. 123.
v) The JK BOSE be authorized to proceed for Joint Academic Inspection for affiliation only after renewal of all NOC's is granted by the
Government.
The proposal went through General Administration Department and the Department vide its communication dated 21.5.2013 returned the
proposal with following observations:
Admission in the ETT institutions are regulated by the provisions of SRO 123 of 2010 which have not been adhered to while admitting students.
The School Education Department had separately proposed an enquiry to be conducted by the Divisional Commissioner, Jammu into illegal
enrolment by private ETT Institutions without adhering to the prescribed norms. As the matter has already been enquired by the Committee
headed by the Financial Commissioner, Finance, the need for further enquiry in this matter was not felt. The ETT institutions have resorted to illegal
agitation pressing for regularization of the illegal enrolments. Section 32 of the BOSE Act provides that the Government may order anything which
appears to them necessary for the purpose or removing the difficulty that may arise while giving effect to the provisions of the Act. This Section in
no way can be interpreted to regularize an illegal act of admissions of students done with the sole commercial purpose. Such an action would
tantamount to rewarding the culprits which will send very bad signals in the society. ETT Institutions shall have to face consequences by not only
refunding the fee of the students from outside the State but should be booked for cheating. Since the ETT is not the required qualification in J&K,
the School Education Department should revisit the policy of the establishing such institutions in the state.
The proposal, therefore, met a serious obstacle and was not cleared for cabinet. The decision taken by the General Administration Department
put an end to the effort made by the lower rung Board officials to come to the rescue of the erring ETT Institutes. A closer look at the
aforementioned communications would reveal that at no point of time appellants Institutes were encouraged to go for admissions on their own
unmindful of the cut-off date/calendar fixed and in violation of the procedure to be followed while making admissions or any assurance was
extended to the appellants that the admissions made would be regularized. The Information Brochure as noticed by the writ court, made it
sufficiently clear to the candidates as well as ETT Institutes that the admission to ETT Institutes would be made exclusively on the basis of merit,
recommended by Central Admission Committee and ETT Institutes would not be competent to admit candidates. The admissions were made by
appellant Institutes on their own after the cutoff date without any participation from Central Administrative Committee. The requests made by the
Appellant Institutes to the Board to reopen the admission after the counseling concluded on 11.01.2012 and to allow spot counseling did not meet
a favourable response from the Government or Board authorities. The appellants approached the Board for regularization of their admission: only
after 12476 candidates were admitted by the Appellant Institutes on their own.
The appellants institutes acted in an unruly manner and in a bizarre way tried to coerce the Board authorities and the Education Department of
the State Government into a settlement. The communications generated at the instance of the appellant- Institutes at a lower level in the Board or
negotiations forced by unruly behavior like dharnas gheraos, intimidation could not be taken as an assurance to regularize an irregularity or
legitimize an illegality. The appellants therefore cannot draw support from law laid down in Motilal Padampat Sugar Mills Co. Ltd. Vs. State of
Uttar Pradesh and Others, or State of Bihar and Others Vs. Kalyanpur Cements Ltd., .
The plea that as the Board itself failed to adhere to the calendar notified vide Government order No. 452-Edu of 2011 dated 10.8.2011, it
cannot take exception to the admission made by the appellant Institutes beyond cut off date, is preposterous, to say the least. In case Board was
not able to stick to the calendar notified vide aforementioned Government order because of the volume of the work it is required to handle and the
admissions as a result got delayed, appellant Institute cannot take refuge under the delay so occasioned, to cover their illegality and academic
indiscipline. Same is true about the plea regarding admissions of reserved category candidates made by the Board a day after out of date for
counseling i.e. 12.1.2012. The appellant ETT Institutes cannot justify admission of 12476 candidates with utter disregard for the admission
calendar duly notified by the Board or by sidelining the Central Admission Committee while making illegal and unauthorized admissions.
A feeble assertion is made by the appellant Institutes, to justify illegal and unauthorized admissions, on the ground that due to delay in
counseling attributable to the Board, candidates got disinterested and rushed to ETT Institutes in other states or abandoned the idea of getting
enrolled in ETT course. This plea again is without substance and does not in any manner brighten up appellants' claim. It is pertinent to point out
that counseling extended for a full calendar month. The candidates, therefore had ample opportunity to participate in the counseling. Most of the
candidates who responded to the advertisement notice, did not turn up for counseling for their own reasons including possibly poor infrastructure
and less academic staff, in some of the ETT Institutes operating in the State. It is pertinent to point out that out of 12476 candidates unauthorisedly
admitted by appellant Institutes beyond cut-off date, only 4053 candidates had responded to the admission Notice dated 24.5.2011, but did not
appear for counseling. Rest of the candidates i.e. 8423 had not applied at all for admission in ETT Course Academic Session 2011-2013. The
question of delayed counseling, having impacted presence of candidates during counseling, from 12.12.2011 to 11.01.2012, would not arise. This
apart out of 12476 candidates claimed to have been admitted by the appellant Institutes, 1728 candidates have applied for Academic Session
2013-2015. Had these candidates, been admitted for Academic Session 2011-2013, (question of their applying for ETT Course Session 2013-
2015, would not arise. It appears that the appellant Institutes have enrolled 12476 candidates only in name with an-understanding that if they
succeed in getting the admission regularized, the candidates so admitted would sit in the Board Examination and get certificates and in case their
effort does not meet success, the candidates would be Tree to follow the course they choose.
For the reasons discussed, the writ court Judgment dismissing the writ petitions, can not be faulted on any ground set out in memoranda of
Appeals. The writ court judgment is well reasoned and learned Single Judge has been alive to the issues involved and returned his finding after a
threadbare discussion of the case projected by the appellant Institutes, as also the stand taken by the respondents in opposition to the writ
petitions. We do not find any reason to take a view different from one taken by Learned Single Judge. The LPA Nos. 77/2013 and 78/2013, are
accordingly dismissed. The outcome of LP As on hand is likely to expose 12476 candidates to inconvenience and monetary loss, attributable
directly to the omissions and commissions on part of the appellant ETT Institutes. In the first place, the Institutes must have received fee from the
candidates admitted in violation of procedure and in disregard of cut-off date. Secondly, candidates have suffered loss of at-least one academic
year. Had the appellant ETT Institutes not tempted the candidates with their offer of admission in academic session 2011-2013, they would have
sought admission elsewhere or made fruitful use of the time resources available to them. The candidates cannot be left high and dry and forced to
go for second round of litigation to recover whatever has been paid by them. So viewed, the appellant ETT Institutes are directed return whatever
fee charged from 12476 candidates, within four weeks from the date of this judgment. It would have been appropriate to ask the appellant
Institutes to pay a further amount to the candidates to compensate them for the time wasted at their instance. However, as the ETT Institutes are
already in financial crises due to their failure to attract candidates up to their intake capacity, such a direction may further deteriorate their financial
health.
Before parting with the judgment, we find it necessary to express our anguish over rampant academic indiscipline in grant of recognition to
private education Institutes by the State Government, and grant of affiliation by the University of Kashmir, University of Jammu and Jammu and
Kashmir Board of School Education to such Institutes and thereafter in making admissions to the courses run by such Institutes. If voluminous
litigation is any indicator, disregard of rules plagues Institutes imparting education and training in all the disciplines, be it Para Medical, Nursing,
Indian System of Medicine or Teacher Training Courses etc. In the first place, the State Government allows private education/training Institutes to
be set up without making any study/survey after regular intervals to find out the actual need to have such Institutes, so that there is some kind of
relationship between the expected number of candidates and the Institutes proposed to be set up. Resultantly, there is mushroom growth of private
Institutes in particular subject area and after the promoters take necessary initiative and brave procedural wrangles and official red-tapism, set up
Institutes they do not find candidates up to their intake capacity. What can be a better example of administrative insensitivity than the plight of the
ETT Institutes. The State Government, as already pointed out, has allowed 437 ETT Institutes with intake capacity of 70,000 candidates in Jammu
Division. The number of such Institutes in Kashmir Division is more than 80 with intake capacity of another 10,000 candidates. As against intake
capacity of 70,000 candidates, only 23645 candidates applied for admission to ETT Course for Academic Session 2011-2013 and only 9811
candidates participated in the counseling. The candidates participated in counseling refused to get enrolled in 240 ETT Institutes. Therefore, while
257 Institutes got students at an average of 33 candidates per Institute, the rest of the Institutes did not get even a single candidate. Had cost
benefit analysis been made by the promoters of ETT Institutes and necessary study made by the State Government as well, it would not have
allowed ETT Institutes three times the required number to be set up in the State.
It is not difficult to notice negative spillover of reckless and uncontrolled growth of private education/training Institutes on the system. Once an
Institute having necessary infrastructure and manpower does not find adequate number of candidates to run the Institute, it indulges in academic
malpractices like making admission unauthorisedly without adherence to the calendar notified, even at the cost of merit and the purpose for which it
is primarily set up. The candidates so enrolled get a degree without actually attending the classes and in effect shop for take home degrees. The
other negative fall out of mushroom growth of such Institutes is failure on their part to set up necessary infrastructure or hire adequate staff. It is
alarming that none of 10,000 candidates (9811 to be exact) was ready to join any of, more than 200 ETT Institutes. One of the reasons that
appears to have dissuaded the candidates from joining such Institutes, have been lack of infrastructure and manpower in such Institutes. The
ultimate sufferer is the society at large and the object that gets frustrated is to add well trained manpower to the national human resource pool.
The other dimension of academic indiscipline is non-adherence to the admission calendar/schedule by the State Government and the Board. It
may be pointed out that the State Government to inculcate a sense of discipline decided to have a definite calendar for admission process notified
vide Government Order No. 452-Edu of 2011 dated 11.8.2011. The calendar was violated by none else but one of the key stakeholder i.e. J&K
Board of School Education. None of the benchmarks or milestones laid down in the calendar, was adhered to by the respondents. Resultantly,
admission that was to be concluded on 15.9.2011, was finalized three months thereafter on 12.1.2012. The events of academic sessions prior to
academic session 2011-2013 are more disappointing. Either the Board did not make admissions at all or the calendar fixed was observed in
breach.
It is pertinent to point out that an ETT Institute is to get NOC from the State Government every year before it commences admission for
academic session of that particular year. It implies that the respondents must have efficient mechanism to inspect all the ETT Institutes at the
beginning of the calendar year so that the Board restricts, admission to the Institute; that are granted NOC by the State Government. The Board in
addition to regulating affiliation and admission to the ETT Institutes and other private Institutes engaged in imparting training in other disciplines, is
saddled with the responsibility to regulate such matters in case of scores of thousands of candidates from class 8th to Class 12th, enrolled in
Government and private schools. It, therefore may not, be possible for the Board because of voluminous work it has to handle relating to School
Education, to deal with the affiliation, admission and like matters of ETT Institutes. This explains frequent non-adherence to the admission schedule,
by the Board.
One more disturbing aspect of admission to ETT Course by Government as well as Private Institutes is the eligibility criteria laid down by the
Board. In terms of the aforementioned criteria a candidate who has passed 10+2 with 45% marks as general category candidate and 40% marks
with reserved category candidate is eligible for admission to the Course. We have elsewhere emphasized the role assigned to a teacher at primary
and middle level in imparting training to the students at an impressionable age. It is surprised while in all other disciplines like medicine, engineering,
law etc, the percentage of marks fixed is much higher, the criteria fixed for admission to ETT Course is below average. Since, only 12% of
available ETT Course seats have been filled up, it ishiib natural that candidates with only minimum prescribed percentage of marks must have been
admitted to the course. The eligibility criteria is to be fixed having regard to the role assigned and duty performed in service of society by a
candidate who successfully completes the training course and is awarded a diploma degree at the end of the course. The eligibility criteria laid
down by the Board, therefore, is required to be re-examined, so that it has a reasonable nexus or relationship with the role and status of teacher.
The State Government and the Board against the above backdrop are directed to,
i) constitute within two weeks from the date of this judgment two committees of three high ranking serving or retired officers including a renowned
educationist and a retired judicial officer for Kashmir,Division and Jammu Division, to inspect all the ETT Institutes of the Jammu & Kashmir
Divisions and to submit their report within twelve weeks from the date committees are constituted recommending inter-alia closing of such of the
ETT Institutes as it may deem proper, having regard to the infrastructure and manpower in place in such of Institutes, as also, number of candidates
admitted in such Institutes through Central Admission Committee during last three Academic Sessions and also to suggest the number of such
Institutes as may be allowed to operate during next 20 years subject to periodical review.
ii) desist from according any permission to set up new ETT Institutes in the State, at least till the Committee, directed to be constituted, submits its
recommendation.
iii) to initiate process for cancellation/withdrawal of recognition/affiliation of such ETT Institutes as may be recommended by the Committee after
providing them an opportunity to put forth their stand.
iv) to examine feasibility of transfer of ETT Institutes from J&K Board of School Education to J&K Board of Technical Education and incorporate
necessary amendments in the applicable law, rules and regulations that at present make it necessary for ETT Institutes to have an affiliation with
J&K Board of School Education.
v) to give a fresh look to the eligibility criteria i.e. 45% in general category and 40% for reserved categories so that only meritorious candidates get
admissions to such Courses and thereafter shoulder the responsibility of imparting education to the students at pre primary, primary and post
primary (middle) level.