The Thiruvalluvar University vs G.K. College of Education and The Tamil Nadu Teachers Education University

P.K. Misra, J.—The present appeal is directed against the Judgment of the learned Single Judge in W.P. No. 28615 of 2008, wherein the

learned Single Judge has directed the present appellant to permit 100 students of the present respondent Institution of 2007-2008 batch to appear

for the B.Ed. arrears examination subject to the result of the SLP No. 6824 of 2007, pending before the Hon''ble Supreme Court.

The writ petition was filed by the present respondent No. 1 on the following allegations:

(2.1) The writ petitioner with intent to start B.Ed. Course from the academic year 2006-2007 applied to the Southern Regional Committee of

National Council for Teacher Education, which however was rejected as per order dated 15.05.2007. The writ petitioner thereafter, filed an

appeal before the National Council for Teacher Education, which was allowed on 07.09.2007 and thereafter a conditional order was passed on

18.09.2007. Thereafter, a further order was passed on 06.11.2007 permitting the writ petitioner to conduct B.Ed. Course of one year duration

with an annual intake of 100 students without imposing any further condition.

(2.2) While the writ petitioner was pursuing the above matters with the authorities under All India Council for Teacher Education, the writ

petitioner had also applied on 28.09.2006 to the present appellant University for grant of affiliation. However, the said application was returned by

the appellant University on 12.10.2006 raising certain queries. Thereafter, the writ petitioner Institution submitted a second application on

18.09.2007. However, no specific orders had been passed.

(2.3) At that stage, when the petitioner was granted the order of recognition dated 06.11.2007 from the National Council for Teacher Education,

another representation dated 06.11.2007 was submitted before the present appellant University.

(2.4) It is the case of the writ petitioner that though the applications in respect of other Institutions during such relevant time had been taken up by

the present appellant for processing including inspection, the application of the writ petitioner was not taken up for consideration. The grievance of

the writ petitioner is that though affiliation was granted to similarly placed institutions, for no reason the application of the writ petitioner Institution

was not disposed of expeditiously.

(2.5) Subsequently, during the month of June 2008 a Committee was appointed by the appellant University to inspect the Institution by

23.06.2008 and the Inspection report was sent on 23.06.2008, but no decision was taken immediately. Meanwhile Tamil Nadu Teachers

Education University Act, 2008 came into force with effect from 01.07.2008 whereunder it was provided that the Tamil Nadu Teachers Education

University alone would be the competent University to grant affiliation for B.Ed. Course with effect from 1st April 2008. Subsequently, the Tamil

Nadu Teachers Education University (Respondent No. 2 in writ petition as well as in the present appeal) granted affiliation to the writ petitioner on

04.09.2008 specifically for the academic year 2008-2009.

(2.6) The main contention of the writ petitioner was that on account of the belated decision taken by the present appellant University as well as the

2nd respondent University, the students who had been admitted during the academic year 2007-2008 are left in the lurch and had not been in a

position to be admitted for the University Examination to be conducted by the present appellant University for the students of the previous batch.

(2.7) It was the further contention that since the students had studied as per the course adopted by the present appellant University and not in

accordance with the syllabus of the 2nd respondent University it will be difficult for them to appear for the examination of the 2nd respondent

University.

(2.8) On the basis of the aforesaid allegations, the writ petitioner prayed for issuing a writ of mandamus or any appropriate writ, order or direction

directing the present appellant University to approve the candidatures of 100 students of 2007-2008 batch of the writ petitioner College for B.Ed.

Degree course and consequently such University to publish the results of the said students to award degree.

Even though no formal counter was filed by the present appellant, it had resisted the prayer made in the writ petition by raising the contention

that on 04.09.2008 affiliation was granted to the writ petitioner only for the academic year 2008-2009.

(3.1) It was further contended that no affiliation could be granted retrospectively and without obtaining affiliation, the writ petitioner Institution

should not have admitted students and hardship if any caused to the students is on account of the mistake committed by the Institution.

(3.2) It was further contended that the application filed by the writ petitioner Institution during the year 2006 seeking for affiliation with effect from

the academic year 2007-2008 had been rejected and the subsequent application which has been processed ultimately resulted in grant of affiliation

by the Newly Constituted University and in view of the provisions contained in the statute, the appellant University was no longer authorised to

grant any affiliation.

(3.3) It was also contended that without challenging the order by which affiliation was granted to the writ petitioner Institution for the academic

year 2008-2009, the claim of the petitioner Institution to allow the students to appear for the examination purportedly for the academic year 2007-

2008 cannot be considered.

(3.4) In support of various contentions raised, the present appellant had also placed reliance upon the decision of the Madras High Court reported

in Tvl. Aruna Malai College of Education and Kalaimahal College of Education Vs. The Secretary to Government, Higher Education Department,

The Bharathidasan University and The Regional Director, Southern Regional Committee, National Council of Teacher Education, .

The learned Single Judge under the impugned Judgment held that the affiliation by the present 2nd respondent University for the academic year

2008-2009 was granted on account of the delay of the present appellant University. As the appellant University had considered grant of affiliation

in respect of other Educational Institutions within a short period and the writ petitioner Institute was subjected to a differential treatment, the

learned Single Judge directed that on account of the delay on the part of the appellant University the students should not suffer, even though, the

learned Single Judge had categorically observed that without getting affiliation the writ petitioner Institution ought not to have admitted the students.

On the aforesaid basis, the learned Single Judge has issued the following direction:

Further, taking into account the submission made by the learned Counsel for the petitioner that the examination scheduled to commence on

15.12.2008 is the last examination to be conducted by the first respondent and also taking note of the fact that the syllabus of the first respondent

and the second respondent is different syllabus and the concerned students have studied B.Ed. Course only with reference to the syllabus of the

first respondent and also taking note of the interim orders passed in the Special Leave Petition, the writ petition is allowed and the respondents are

directed to permit the 100 students of the petitioner institution of 2007-2008 batch for the B.Ed. arrears examination to be commenced on

15.12.2008. However, it is made clear that this order is subject to the result of the SLP pending before the Supreme Court. No costs.

Consequently, connected Miscellaneous Petition is closed.

Subsequently, on the basis of the oral submission made by the Counsel for the appellant University, the learned Single Judge passed further

orders on 16th December 2008 to the following effect:

According to the learned Special Government Pleader for Education, there are certain difficulties faced by the respondent Department in

implementing the order dated 12.12.2008 passed by this Court, consequently, the same could not be implemented as on date. In view of this, the

learned Special Government Pleader for Education has sought for further direction to implement the orders of this Court passed on 12.12.2008 by

permitting them to conduct a special examination for the students of the petitioner institution.

Taking note of the difficulties put forth by the learned Special Government Pleader for Education and also taking note of the fact that the orders

were passed on 12.12.2008, but the examination commenced on 15.12.2008, the prayer of the learned Special Government Pleader needs

consideration. Consequently, the respondents are permitted to conduct a special examination for B.Ed. course for the students of the petitioner

institution for the academic year 2007-2008 within a period of 30 days from the date of receipt of a copy of this order.

Thereafter, the Registrar in charge of the present appellant University sent a letter dated 24.12.2008 to the Institution, which reads as follows:

With reference to your letter cited, I am by direction to state that the Hon''ble High Court, Chennai has reconsidered its order dated 12.12.2008 in

W.P. No. 28615 of 2008 and passed modified orders on 16.12.2008 granting time for one month for conducting B.Ed. examination to the

students of G.K. College of Education for the year 2007-2008, subject to the SLP Pending. In pursuance of the orders of the High Court dated

16.12.2008, the University is making necessary arrangements for conducting the B.Ed. examination to the students of your college. You are

requested to submit exam applications from the students with necessary enclosures, eligibility certificates, attendance certificates for all students,

Internal marks records etc. submitted by the students and other relevant materials for taking further action in the matter.

This may be treated as most immediate.

In the above background the Counsel for the appellant has submitted that when affiliation was granted to the writ petitioner/present first

respondent specifically with effect from the academic year 2008-2009 which was never challenged by the Institution, the prayer of the Institution in

W.P. No. 28615 of 2008 praying for a direction to the present appellant University to permit the students to appear at the examination conducted

by the present appellant University for the other Institutions of the previous batch was misconceived.

It is further submitted that in view of the several decisions of the Madras High Court, laying down in categorical terms that before obtaining

affiliation from the University, which is the examining authority, no college or institution should admit the students and therefore, the writ petitioner

Institution having violated such norms cannot be heard to say that the present appellant University should be forced to hold an examination for

those students. It is further submitted that this may give rise to anomalous situation in the sense that the affiliation to the Institution is given by

another University viz., Tamil Nadu Teacher Education University for the academic year 2008-2009, whereas the present appellant University

would be forced to hold an examination for the students for the academic year 2007-2008 and would be forced to issue degree even though there

was no affiliation for the said year. This according to the learned Counsel for the appellant is against the existing provisions as well as the ratio of

several decisions of High Court.

The learned Counsel for the respondent No. 1 (the writ petitioner Institution) on the other hand submitted that the order passed by the learned

Single Judge which has been made subject to the proceedings in SLP No. 6824 of 2007 now pending before the Hon''ble Supreme Court is not in

accord with the sense of substantial justice. It has been further submitted by him that at any rate the present appellant through its Counsel had

mentioned the matter before the learned Single Judge and had requested for permission to hold a special examination and in fact even the Registrar

incharge of the University has issued a communication to the effect to the present respondent and therefore the appellant is estopped from raising

any contrary stand.

The learned Single Judge has issued a direction primarily on account of the delay on the part of the appellant University in dealing with the

application for affiliation filed by respondent No. 1 Institution. It is not disputed that the application which was filed during the year 2006 had been

returned by the present appellant University on account of certain defects in the application. Be that as it may, the respondent Institution filed a

fresh application during the year 2007. Since such application had been kept pending, the present respondent No. 1 had filed W.P. No. 3177 of

2008 seeking for a direction to the present appellant University to process the application dated 06.11.2007 including causing of inspection for

consideration for grant of affiliation to the G.K. College of Education within a time frame. By the time such writ petition was taken up for hearing

on 21.11.2008, the order of affiliation dated 04.09.2008 by the Newly Constituted Tamil Nadu Teacher Education University had already been

granted. In such order of affiliation, it was specifically indicated that it had been decided to grant provisional affiliation for the academic year 2008-

2009. At that stage, the respondent No. 1 Institution which was the writ petitioner in W.P. No. 3177 of 2008 did not challenge such grant of

affiliation for the academic year 2008-2009.

On the other hand the following order was passed on 21.11.2008 in W.P. No. 3177 of 2008:

Learned Counsel for the petitioner submits that as nothing survives in the writ petition, the same has become infructuous and seeks permission of

this Court to withdraw the same and has also made an endorsement to that effect. Permission is granted. In view of the endorsement made, this

writ petition is dismissed as infructuous.

Though prima-facie it may appear as if there had been some delay on the part of the present appellant University, it is not disputed at the Bar

that as per the relevant time schedule applicable, the Institutions seeking affiliation should file the application before 30th September of a particular

year so that the question of affiliation for the next academic year can be considered. In other words, if application is filed in September 2007,

affiliation can be granted for the year 2008-2009.

At any rate, since the affiliation was specifically granted for the year 2008-2009 and that too under newly Constituted University (present

Respondent No. 2), if the petitioner had any grievance at that stage, instead of withdrawing the Writ Petition No. 3177 of 2008 the petitioner

should have pursued the matter to its logical end by challenging the affiliation granted to it and further by seeking for affiliation with effect from

2007-2008. Having allowed the earlier writ petition to be withdrawn which was practically based on very similar cause of action, the writ

petitioner (respondent No. 1 in the present appeal) is trying to get over the hurdle of the dismissal of the earlier writ petition by couching the prayer

in a more innovative manner.

In this context, it is also to be noted that while filing the present writ petition No. 28165 of 2008 through the very same Counsel, the petitioner

has not at all bothered to indicate about the filing of the earlier Writ Petition No. 3177 of 2008 and the result there of.

The learned Counsel for the appellant has submitted that in a series of decisions of the Madras High Court including in Full Bench decision

reported in G. Jayakumar Vs. Union of India (UOI) and The General Manager (Developmental Project), Larsen and Tubro Ltd., E.C.C.

Construction Group, , it has been laid down that without the grant of affiliation, no institution can admit the students.

It is no doubt true that SLP. No. 6824 of 2007 has been filed before the Supreme Court against the aforesaid decision of the Full Bench, but

there is no stay of the operation of the Judgment of the Full Bench. Merely because an appeal has been filed before the Supreme Court, it cannot

be said that the ratio of the Full Bench Decision ceaases to be binding. As a matter of fact, in a subsequent Division Bench Judgment, it has been

specifically stated that the operation of the Full Bench decision having not been stayed, such decision is required to be followed. Learned Single

Judge appears to have glossed over the effect of the Full Bench Judgment merely by observing that SLP has been filed against the said decision

and permission has been granted to the students of the said Institution to write the examination.

It is no doubt true that the learned Single Judge has also observed that the direction regarding holding of examination would be subject to the

result of the SLP, but in our considered opinion, the holding of examination for the batch of students who had been admitted even though affiliation

had been granted for the year 2008-2009 would create an anomalous position.

The Counsel for the respondent No. 1 (the writ petitioner) has strongly raised the question of estoppel on the ground that the Counsel for the

present appellant had made a mention before the learned Single Judge on the basis of which the learned Single Judge had permitted the present

appellant University to hold a special examination and in fact subsequently on the basis of such an order, a communication was sent by the

Registrar incharge of the University appellant University to the Institution. As is well known, there cannot be any estoppel against law. The

affiliation granted to the respondent Institution is only from 2008-2009. As per law applicable to the State of Tamil Nadu (atleast as per the several

decisions) no admission can take place before affiliation is granted. Moreover, since the affiliation was granted specifically for 2008-2009

onwards, permitting the students to appear as if there was affiliation for 2007-2008, would create an anomalous situation.

For the above reasons, we are not able to sustain the order passed by the learned Single Judge. However, keeping in view the special facts

and circumstances of the case, we observe that the 2nd respondent University, which is now as per the statute, the sole University to deal with

such course, should permit the students concerned to appear at the next examination to be held by such 2nd respondent University. Subject to the

above direction and observations, the writ appeal is allowed. No costs.