State
Of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors
[2006] Insc 166 (31 March 2006)
Y.K. Sabharwal,
C.K. Thakker & P.K. Balasubramanyan
ARISING
OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.20918 OF 2005 WITH CIVIL APPEAL NOs. 1860 OF 2006
ARISING OUT OF SPECIAL LEAVE PETITION (C) NOs.20969-20977 OF 2005 C.K. THAKKER,
J.
Leave granted.
The
present appeals are directed against the judgment and order passed by the High
Court of judicature at Bombay, on September
28, 2005 in
Writ Petition Nos. 6172 of 2005, 4769 of 2005 and cognate matters. Writ
Petition No.4769 of 2005 was filed by Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya for an
appropriate writ, direction or order, quashing and setting aside the order
dated December 28, 2004 passed by the State of Maharashtra
by which the petitioner was informed that the State of Maharashtra
had taken a policy decision not to grant 'No Objection Certificate' ('NOC' for
short) to any institution for starting new B.Ed.
college for the academic year 2005-06. It was also decided to communicate the
said policy decision to the Maharashtra University stating that if necessity will
arise in the next year, applications for the institutions would be considered
at that time. A decision was also taken to bring it to the notice of National
Council for Teacher Education, Bhopal ('NCTE' for short) that in the State of Maharashtra, there was no need for new B.Ed.
trained manpower and hence NCTE should not directly consider any application
for grant of permission to start B.Ed. college. In
spite of the aforesaid policy decision by the State of Maharashtra, NCTE granted permission to the
petitioner institute. The State hence challenged the said action by filing Writ
Petition No. 6172 of 2005 contending that the decision of NCTE ignoring the
policy decision of the State Government dated December
28, 2004
was not in consonance with law and was liable to be set aside.
Both
the petitions were heard together by a Division Bench of the High Court. By a
common judgment, the High Court allowed the petition filed by the institution,
set aside the order passed by the State Government on December 28, 2004 and
issued direction to the State of Maharashtra as well
as Maharashtra University to take appropriate
consequential actions in accordance with law in the light of the decision taken
by NCTE in favour of the institution permitting
opening of a new B.Ed. college. Similar directions
were issued in favour of other colleges also.
To
appreciate the contentions raised by the parties to the proceedings, few
relevant facts in Writ Petition No. 4769 of 2005 may now be stated.
The
petitioner is a public trust registered under the Bombay Public Trusts Act,
1950 as also society registered under the Societies Registration Act, 1860. It
was the case of the petitioner that it was running a secondary school at
village Kondhapuri, Taluk Shirur, District Pune, having a strength of about 150 students. The petitioner desired to
impart education for B.Ed. course. To meet with the
requirement of infrastructure, library, staff etc., it spent more than rupees
one crore. The petitioner then made an application to
SNDT Women's University, Mumbai on October 30, 2004 by paying the requisite affiliation
fees. A copy of the said application was forwarded to the Principal Secretary,
Higher and Technical Education, Mantralaya, Mumbai.
An application was also made by the petitioner to NCTE, Western Region Office,
Bhopal on December 31, 2003 in the prescribed format for grant of permission to
start B.Ed. college for women in accordance with the
provisions of the National Council for Teacher Education Act, 1993 (hereinafter
referred to as 'the Act') and the National Council for Teacher Education (Norms
& Conditions for recognition of Bachelor of Elementary Education)
Regulations, 1995 (hereinafter referred to as 'the Regulations'). The
petitioner also deposited the original Fixed Deposit Receipt (FDR) of Rs.5 lacs towards Endowment Fund.
According
to the petitioner, the University processed the application of the petitioner
for affiliation and forwarded it to the State Government. It was averred in the
petition that the application was recommended for the establishment of the
proposed B.Ed. college to be
opened by the petitioner. NCTE, vide its letter dated February
24, 2005
asked the petitioner whether it was ready for inspection as per the norms
prescribed by the NCTE. Since the petitioner was ready for such inspection by
the NCTE, the Expert Committee of NCTE visited the petitioner's campus on June
6, 2005 and
verified the adequacy of infrastructure, staff and other norms. The report was
submitted by the Committee to NCTE which approved and granted recognition for B.Ed. college to be opened by the
petitioner from academic year 2005-06 with an intake capacity of 100 students.
After receipt of the said letter, the petitioner applied to the Government of Maharashtra on July 4, 2005 for grant of permission to start
the college and/or inclusion of the name of the college in the Central
Admission Process for the year 2005-06. According to the petitioner, the State
Government neither acted on the said letter nor even replied. Under the Maharashtra Universities Act, 1994 (hereinafter referred to
as 'the University Act'), only after permission from the Government, B.Ed. college can be opened. Since
the admission process was to be delayed and the petitioner had undertaken every
exercise by getting necessary permission from NCTE and had invested huge amount
of more than one crore on development, infrastructure
and appointment of staff etc., it was constrained to approach the High Court by
filing a petition for appropriate relief.
An
affidavit was filed on behalf of SNDT Women's University stating therein that
it did not recommend the case of the petitioner to the State as in terms of the
Prospective Plan for 2002-07, the district-wise allocation for Pune was only one college. It was, therefore, not possible
to recommend opening of a new B.Ed. college by the
petitioner.
An
affidavit was also filed by the State authorities, asserting that the
petitioner had to obtain NOC from the State Government. According to the
respondents 3 and 4, the State Government had an important role to play in the
process of grant of permission by NCTE and such role has been recognized by
this Court in St. John Teachers [(2003) 3 SCC 321 : JT 2003 (2) SC 35] . It was
stated that the State Government had been assigned an important task of
development and improvement of teacher's education and thus it was vitally
interested in education and specially in professional
courses in the State. It was only the State Government which could correctly
assess and know the extent of requirement of trained manpower and supply of
trained teachers keeping in view the requirements, change of occupation and
demand of such teachers. The input from the State Government through NOC was
thus vital for enabling NCTE to exercise its powers and discharge its functions
properly and without involvement of the State Government and availability of
necessary input by the State Government, NCTE could not grant permission. It
was then stated that there were 216 B.Ed. colleges
with an intake capacity of more than 20,000 students. Additionally, NCTE had
sanctioned 40 new B.Ed. colleges on the basis of NOC
issued by the State Government prior to 2005-06. The State Government had
issued NOC to nearly 80 new institutions upto
2004-05.
There
was, thus, sufficient B.Ed. colleges and intake
capacity taking into account the need for teachers. A conscious decision was,
therefore, taken by the Cabinet Sub-Committee on December
28, 2004
not to grant approval or issue NOC for starting any new institution or to
increase intake capacity of existing institutions imparting B.Ed.
course for the year 2005-06. The said decision of the Government was
communicated to all the Universities on February 4, 2005 and the Universities were directed
to communicate the decision of the Govenrment to
institutions concerned. In spite of the above decision, NCTE forwarded the
recommendation for grant of permission in favour of
certain institutions. But, as policy decision had been taken by the State
Government, the proposal of the petitioner institution for grant of NOC was not
forwarded to NCTE. The State had also made a complaint in the affidavit that
NCTE had not clarified in what circumstances it has issued permissions to the
petitioner and other institutions without NOC from the State Government.
An
additional affidavit was also filed reiterating the decision of the Cabinet
Sub-Committee dated December 28, 2004. It was stated that it was also
decided to withdraw/cancel NOC which had been issued by the State Government in
favour of some institutions. Those institutions,
therefore, filed writ petitions and the Division Bench set aside the decision
of the State Government by granting liberty to the State to take appropriate
action in accordance with law after giving an opportunity of hearing to the
petitioners. The State Government, thereafter, afforded hearing to the
institutions, but again it was decided to withdraw/cancel NOC in view of the
policy decision of the Government. It was, therefore, prayed by the respondent
State that its decision was a policy decision which was in consonance with law
and the petition was liable to be dismissed.
By
filing Writ Petition No. 6172 of 2005, the State had challenged the action of
NCTE of granting permission to open new B.Ed. college ignoring the policy decision of the State dated December
28, 2004,
praying that the action of NCTE was illegal and unlawful and was liable to be
set aside.
The
NCTE also filed a counter before the High Court. Relying on various provisions
of the Act, NCTE stated that necessary sanction had been granted by NCTE and
the said decision was legal, valid and in consonance with law. It was stated
that since the final authority for granting such permission was only NCTE under
the Act, SNDT University as well as the State Government
ought to have respected the order passed by the NCTE by taking consequential
actions. It was stated that the State Government never informed NCTE about its
general policy not to issue any NOC to new B.Ed.
institution for academic year 2005-06 in view of output of existing B.Ed. colleges. It was further stated that NCTE considered
the question but decided not to accept the decision of the State Government for
the reason that the State while taking such decision, did not consider the
education policy of the Government of India under Sarv
Shiksha Abhiyan which
required opening of large number of primary schools and thereafter secondary
schools. It also did not take into account preferential needs of hilly and
remote areas, requirement of teachers for Science, Mathematics and English,
need of non-formal education of adults, disabled, tribals
etc. and did not consider the need of trained teachers who do not seek
employment in other institutions but wish to use the training in self
employment such as opening of coaching classes, etc.
In an
additional affidavit, NCTE stated that in the 73rd meeting, the agenda included
consideration of letter of the State of Maharashtra dated May 7,
2005 in
which it was stated that Government had decided not to issue any NOC for
starting new B.Ed. college for the academic year
2005- 06. The meeting was held between June 3 & 5, 2005 which was attended
by the State representative but as the agenda could not be completed, the
meeting continued on June 16 and 17 when State representative was not present.
After
considering the policy and views of the Government, the Committee decided that
the decision of the State Government was not binding upon NCTE and accordingly
NCTE had decided to grant permission to open 16 new B.Ed.
colleges.
The
High Court, therefore, was called upon to consider the role played by the State
Government in the process of consideration of application by the institutions
seeking recommendation of opening B.Ed. colleges by
NCTE in the light of the provisions of the Act in juxtaposition to the extent
of trained manpower required by the State and to take policy decision on the
basis of output of teachers by such colleges. The Court was also called upon to
consider whether in the absence of any material being made available by the
State Government to NCTE whether the latter can process the application and
take a decision contrary to the decision of the State Government. A question
had also arisen as to whether the State Government can refuse permission to an
institution which had been granted permission to start B.Ed.
college by NCTE under the Act and whether policy decision of the State
Government not to grant NOC would bind NCTE in the light of the provisions of
the Act.
The
High Court considered the material provisions of the Act and the Regulations
and the relevant decisions of Adhiyaman Educational
& Research Institute & Ors., [(1995) 4 SCC 104 :
JT 1995 (3) SC 136], Jaya Gokul
Education Department, Thiruvananthapuram, Kerala State & Anr. [(2000) 5
SCC 231 : JT 2000 (5) SC 118] and St. John's Teacher's Training Institute,
referred to above.
The
High Court held that in the light of the relevant provisions of the Act as
interpreted by this Court in various decisions, the appropriate authority to
take decision regarding opening of new colleges was NCTE and neither the State
Government nor the University can act contrary to the decision of NCTE.
According to the High Court, under the Act, the only authority which could take
a decision regarding opening of new B.Ed. college or increase in intake capacity was NCTE and such
decision cannot be ignored either by the State authorities or by the
University. So far as the function of the State Government was concerned, the
High Court observed that it was in the nature of supply of necessary data and
materials so as to enable NCTE to undertake the process of coming to an
appropriate decision but the State had no power to decide that it had taken a
policy decision not to grant permission to open new B.Ed.
college for a particular period. Such decision was not in accordance with the
provisions of the Act nor in consonance with law laid down by this Court.
Regarding role of the University, the High Court held that it was incumbent on
the University to take an appropriate decision and consequential action on the
basis of decision of NCTE and the provisions of the University Act required the
University to implement such decision. It was, therefore, not open to the
University to take any action overlooking the decision of NCTE and relying on a
decision of the State Government. In the light of the above findings the High
Court allowed the petition filed by the institutions and dismissed the writ
petition of the State Government.
The
High Court, in the operative part, observed as under:
"For
the reasons stated in the judgment, we direct the Director of Higher Education,
Government of Maharashtra to forthwith include the
name of the petitioner institute in the list of Central Admission process for
the year 2005- 2006 B.Ed. Course consequent to the
petitioner being allowed to start B.Ed. college. The University considering Section 14(6) of the
National Council for Teaching Education Act, 1993 to grant first time
affiliation to the petitioner college to enable the College to admit students.
That affiliation would be subject to the petitioner college fulfilling the
requirements as required by the University to grant first time affiliation in
terms of the Unvieristy Act, Rules and Statute to the
extent that has to be complied with. It is made clear that those who have been
admitted pursuant to the Central Admission Process are not eligible to apply
against the seats now available and admissions already done will not be
interfered with and the new seats will be filled in from amongst the candidates
still on the merit list, by conducting a special round of admission.
Rule
made absolute to that extent in Writ Petition No. 4769 of 2005. Rule discharged
in Writ Petition No. 6172 of 2005 subject to what we have set out in the body
of the judgment." As already stated, NOC had been granted earlier in favour of other colleges by the State Government on the
basis of permission granted by NCTE. But it was subsequently withdrawn/cancelled
in the light of the policy decision dated December 28, 2004 not to permit any new
B.Ed. College to be opened. Those colleges filed
petitions which also came to be allowed by the High Court.
The
State has now approached this Court by filing the present appeals. The matters
were placed for admission- hearing before this Court and on October
5, 2005
notice was issued. Stay was also granted against the judgment of the High Court
as also the recommendation order passed by NCTE, Bhopal. In the order dated January
6, 2006 it
was observed by this Court that the matters require elaborate submissions. The
Registry was, therefore, directed to list them on 'a non-miscellaneous day' in
the last week of January, 2006. That is how the matters had been placed before
us.
We
have heard the learned counsel for the parties.
Mr.
T.R. Andhyarujina, Senior Advocate, appearing for the
State contended that the policy decision taken by the State Government was in
consonance with law and could not have been ignored by NCTE. It was also
submitted that it was within the power and authority of the State to take into
account relevant and germane considerations that as against the demand of about
7,500 teachers per year, at present more than 25,000 teachers are available.
The resultant effect is that every year there is excess of teachers to the
extent of 18,000. There are more than 250 B.Ed.
colleges in the State and if more colleges will be allowed to be opened, there
will be unemployment of many more teachers. The said aspect was seriously
considered by the Cabinet Sub Committee and a conscious decision was taken on
the basis of demand of teachers in future and it was resolved that for the year
2005-06, no NOC would be granted to open new B.Ed. colleges.
Such a decision, submitted Mr. Andhyarujina, by no
means can be described as arbitrary, irrational or otherwise unreasonable. It
was also submitted that the Regulations framed and Guidelines issued by NCTE
under the Act empowered the State Government to consider certain matters. The
legality thereof came to be challenged before this Court in St. John Teachers
Training Institute and they were held valid. When in exercise of the power
conferred by NCTE on the State Government, an action was taken and decision has
been arrived at, it is neither open to NCTE nor to a college to question the
legality thereof, particularly when the State has taken into consideration
planned and combined development of teacher education in the State. It was also
urged that the State kept in mind Prospective Plan for the period 2003-07 and
was of the opinion that there should not be imbalance or excess of teachers so
as to increase unemployment and unrest. According to Mr. Andhyarujina,
the High Court ought to have considered the provisions of the University Act
and in particular Sections 82 and 83 thereof in their proper perspective. It is
only when the State grants NOC and NCTE permits new B.Ed.
college to be opened or allows increase in intake
capacity that the above sections will apply and the university will act in
accordance with the decision of the State and NCTE. In the absence of grant of
NOC, a college cannot insist on implementation of provisions of Sections 82 and
83 of the University Act merely on the basis that NCTE had granted permission
under the Act. It was finally submitted that even if this Court is of the view
that all the submissions made by the State are ill-founded and the decision of
the High Court does not deserve interference, no permission may be granted to
the colleges at least for the year 2005-06 since minimum requirement is
presence of 180 days which would be impossible to comply with since B.Ed. Examination is scheduled to be held in March-April,
2006. It was stated that the course is of one year only after graduation and as
such there is no supplementary / additional examination for B.Ed.
Mr. Raju Ramachandran, learned
counsel for NCTE supported the order passed by the High Court. He submitted
that NCTE is the final authority and has primary voice in establishing
technical educational institutions.
According
to him, the Act has been enacted by Parliament in exercise of power under Entry
66 of List I of Schedule VII to the Constitution and the State has no power in
such matters. He also submitted that the point is finally concluded by this
Court in several cases referred to above.
The
High Court considered the respective contentions of the parties in the light of
the law laid down by this Court and held that it is
only NCTE which has final voice and once a decision is taken by that body,
neither the State Act nor any authority of State can interfere with such
decision.
The
counsel also submitted that like the State, University has also no power,
authority or jurisdiction to ignore the decision taken by NCTE or refuse to
take action in pursuance of permission granted by NCTE. Sub-section (6) of
Section 14 of the Act expressly requires university to act in accordance with
the decision of NCTE and State Government cannot direct the university nor university
can overlook the statutory scheme. It was also submitted that the policy
decision of the State Government dated 28th December,
2004 was
not legal and valid. Several aspects and relevant considerations were not kept
in mind while taking the said decision. In the circumstances, NCTE was
constrained to take an action in consonance with law. The matter was discussed
in various meetings of NCTE. In the final meeting, the representative of the
State was not present. A decision was taken by NCTE to grant permission to new B.Ed. colleges which was legal and valid. Regarding
Regulations and Guidelines framed by NCTE and the role to be played by the
State Government in such cases, it was submitted that it is merely in the
nature of supply of necessary data/materials and is 'consultative' in
character.
As it
may be difficult for NCTE to get necessary information before power is
exercised by NCTE one way or the other, the State is requested to furnish
requisite details. That, however, does not mean that the State can refuse NOC
after a decision has been taken by NCTE. Once the State is consulted and it
supplied and made available necessary particulars to NCTE as required by it,
the function of the State comes to an end. Thereafter it is only for NCTE to
take an appropriate decision in accordance with law. If such decision is
otherwise objectionable, the party aggrieved may challenge the same but so far
as State is concerned, its role is over as soon as the
consultation is over. Mr. Raju, therefore, submitted
that the High Court was wholly justified in allowing the petition filed by
colleges and in dismissing the writ petition of the State.
The
learned counsel for various colleges supported Mr. Raju
Ramachandran on interpretation and application of the
provisions of the Act and final decision of the High Court. They, however, had
taken other contentions as well. According to them, the State has no locus standi to challenge the decision of NCTE. The State cannot
be said to be "person aggrieved" or "aggrieved party" so as
to challenge the decision of NCTE. If the decision is against the college, it
is only the college which has 'standing' to impugn the said decision. The High
Court, therefore, in the submission of the learned counsel for colleges, ought
to have dismissed the petition filed by the State as not maintainable without
entering into the merits of the matter. It was also submitted that under the
scheme of the Constitution, particularly Articles 245, 246, 248 and 254 read
with Schedule VII thereof, only Parliament has power of co-ordination and
determination of standards in institutions for higher education or research,
scientific and technical institutions. State Legislatures have no authority to
enact any law in the field covered by Entry 66 of List I of Schedule VII.
Obviously, therefore, State Government has no authority to take a policy
decision in respect of the subjects covered by Entry 66 of List I of Schedule
VII for which a specific enactment has been made by Parliament and under the
said Act authority has been granted to NCTE to take an action. As to
Regulations and Guidelines, it was submitted that under the Act power has been
conferred on NCTE. It is, therefore, only NCTE, which can consider the question
and take appropriate decision under the Act and it is not open to NCTE to make
Regulations or frame Guidelines empowering the State Government to undertake
such exercise. According to the counsel, therefore, even if Regulations are
framed or Guidelines made, they are not in consonance with the Act and there is
abdication of power by NCTE in favour of State
Government which is hit by the doctrine of impermissible and excessive
delegation.
Regulations
permitting such excessive / impermissible delegation must be declared
inconsistent with the parent Act as also ultra vires
and unconstitutional. The counsel also submitted that so-called policy decision
of the State Government is arbitrary and unreasonable and would be hit by
Clause (g) of Article 19(1) of the Constitution which allows all citizens to
have the right to practise any profession, or to
carry on any occupation, trade or business, otherwise legal and lawful. Article
19(6) cannot be invoked by the State as total prohibition to open B.Ed. college can never be said to be in the interest of
general public and would not fall within "reasonable restriction"
permissible under the said provision. It is also violative
of Article 21A as inserted by the Constitution (Eighty-sixth Amendment) Act,
2002. Over and above constitutional inhibitions, the order dated 28th
December, 2004 is arbitrary and unreasonable inasmuch as considerations which weighed
with the State Government relating to employment of B.Ed.
teachers were totally irrelevant and extraneous. Taking education and getting
employment are two different things. The colleges are not claiming any grant or
financial aid from the State, nor do they give any assurance or guarantee to
students admitted to B.Ed. colleges that the State
will give them employment. It is, therefore, not open to the State Government to
refuse to grant NOC because the State is not able to give employment to
teachers after they get B.Ed. degree.
There
are several Arts, Commerce and Science colleges in the State in which students
take education and get degrees of B.A., B.Com. or
B.Sc. It is not even the case of the State that all those students got
employment at one or the other place. Thus, the so-called policy decision of
the State Government not to grant NOC to B.Ed.
colleges is totally irrational. It was also submitted by the respondents that
they had made huge investments and if at this stage they will be refused
permission, irreparable injury and loss would be caused to them. Finally, it
was submitted that since the decision of NCTE is legal, lawful and in
consonance with the provisions of the Act as also consistent with the law laid
down by this Court in several judgments, the order passed by the High Court
deserves to be upheld by allowing the institutions to open B.Ed.
colleges from the year 2005-06 as has been done by NCTE.
If this
Court considers it appropriate, specific direction may be issued to the
respondents to conduct extra classes/lectures and to hold
supplementary/additional examination. Once the action of NCTE is found to be
lawful and the decision of the State Government bad, no prejudice should be
caused to the institutions.
Before
we deal with the contentions of the parties, it would be appropriate if we
refer to the relevant provisions of law. Part XI of the Constitution deals with
relations between Union
and States. Chapter I thereof relates to legislative relations and distribution
of legislative powers.
Article
245 enables Parliament to make laws for the whole or any part of
territory of India. Similarly, a Legislature of a
State has power to make laws for the whole or any part of the State. Article
246 provides for distribution of legislative power between Parliament and
Legislatures of States and reads thus:
"246.
Subject-matter of laws by Parliament and by the Legislatures of States-
-
Notwithstanding anything in clauses
(2) and (3), Parliament has exclusive power to make laws with respect to any of
the matters enumerated in List I in the Seventh Schedule (in this Constitution
referred to as the "Union List").
-
Notwithstanding anything in clause
(3), Parliament and, subject to clause (1), the Legislature of any State also,
have power to make laws with respect to any of the matters enumerated in List
III in the Seventh Schedule (in this Constitution referred to as the
"Concurrent List").
-
Subject to clauses (1) and (2), the
Legislature of any State has exclusive power to make laws for such State or any
part thereof with respect to any of the mattes enumerated in List II in the
Seventh Schedule (in this Constitution referred to as the 'State List').
-
Parliament has power to make laws
with respect to any matter for any part of the territory of India not included
[in a State] notwithstanding that such matter is a matter enumerated in the
State List." Whereas Article 248 provides for residuary power of
Legislature, Article 254 covers cases of inconsistency between laws made by
Parliament and by Legislatures of States.
Schedule
VII to the Constitution comprises of three Lists:
-
Union
List,
-
State
List and
-
Concurrent
List.
While
exclusive power to enact laws lies with Parliament under List I, the power to
enact laws under List II is with the State Legislatures. In respect of subjects
falling under List III, it is open to Parliament as well as State Legislatures
to enact laws subject to the provisions of Articles 254.
Entries
63 to 66 of List I of Schedule VII relate to higher education. Entry 66 which
is relevant reads thus:
"66.
Co-ordination with determination of standards in institutions for higher
education or research and scientific and technical intuitions" Entry 11 of
List II inter alia included university education. It
was omitted by the Constitution (42nd Amendment) Act, 1976 and became part of
Entry 25 of List III (Concurrent List). Entry 25, as originally stood read as
under:
"25. The vocational and technical training of labour." After the amendment of 1976, the Entry as it stands now
reads thus:
"25.
Education, including technical education medical education and universities,
subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational
and technical training of labour." The National
Council for Teacher Training Act, 1993 has been enacted by Parliament and deals
with teacher's education. It came into force with effect from July
1, 1995.
The
Preamble of the Act is relevant and reads thus:
"An
Act to provide for the establishment of a National Council for Teacher
Education with a view to achieving planned and co-ordinated
development of the teacher education system throughout the country, the
regulation and proper maintenance of norms and standards in the teacher
education system and for matters connected therewith." Section 2 is
definition clause wherein various terms have been defined. "Council"
is defined as the National Council for Teacher's Education established under
sub- section (1) of Section 3 of the Act. "Institution" has been
defined as "an institution which offers courses for training in teacher's
education". "Teacher education" is defined thus:
"Teacher
education means programmes of education, research or
training of persons for equipping them to teach at pre-primary, primary,
secondary and senior secondary stages in schools, and includes non-formal
education, part-time education, adult education and correspondence
education." Under that section, "University" means "University
defined under clause (f) of Section 2 of the University Grants Commission Act,
1956 and includes an institution deemed to be a University under Section 3 of
that Act." Chapter II provides for establishment of Council and Chapter
III deals with functions to be performed by the Council. Section 12 imposes
duty on the Council to take necessary steps for ensuring planned and co-ordinated development of teacher education and for
determination and maintenance of standards for teacher education. The said
section is relevant and may be quoted in extenso:
"12.
It shall be the duty of the Council to take all such steps as it may think fit
for ensuring planned and co-ordinated development of
teacher education and for the determination and maintenance of standards for
teacher education and for the purposes of performing its functions under this
Act, the Council may-
-
undertake surveys and studies
relating to various aspects of teacher education and publish the result thereof;
-
make recommendations to the Central
and State Governments, Universities, University Grants Commission and
recognized institutions in the matter of preparation of suitable plans and programmes in the field of teacher education;
-
co-ordinate and monitor teacher
education and its development in the country;
-
lay down guidelines in respect of
minimum qualifications for a person to be employed as a teacher in schools or
in recognised institutions;
-
lay down norms for any specified
category of courses or trainings in teacher education, including the minimum
eligibility criteria for admission thereof, and the method of selection of
candidates, duration of the course, course contents and mode of curriculum;
-
lay
down guidelines for compliance by recognised
institutions, for starting new courses or training, and for providing physical
and instructional facilities, staffing pattern and staff qualifications;
-
lay down standards in respect of
examinations leading to teacher education qualifications, criteria for
admission to such examinations and schemes of courses or training;
-
lay down guidelines regarding
tuition fees and other fees chargeable by recognised
institutions;
-
promote
and conduct innovation and research in various areas of teacher education and
disseminate the results thereof;
-
examine
and review periodically the implementation of the norms, guidelines and
standards laid down by the Council, and to suitably advise the recognised institutions;
-
evolve suitable performance
appraisal systems, norms and mechanisms for enforcing accountability on
recognized institutions;
-
formulate
schemes for various levels of teacher education and identify recognized
institutions and set up new institutions for teacher development programmes;
-
take all necessary steps to prevent
commercialization of teacher education; and
-
perform such other functions as may be
entrusted to it by the Central Government." Chapter IV is material and
provides for "Recognition of teacher education institutions." While
Section 14 deals with recognition of intuitions offering course or training in
teacher education, Section 15 relates to permission of new courses or training
by a recognized institution and they read thus:
-
-
"Every institution offering or
intending to offer a course or training in teacher education on or after the
appointed day may, for grant of recognition under this Act, make an application
to the Regional Committee concerned in such form and in such manner as may be
determined by regulations;
Provided
that an institution offering a course or training in teacher education
immediately before the appointed day, shall be entitled to continue such course
or training for a period of six months, if it has made an application for
recognition within the said period and until the disposal of the application by
the Regional Committee.
-
The
fee to be paid along with the application under sub-section (1) shall be such
as may be prescribed.
-
On
receipt of an application by the Regional Committee from any institution under
sub-section (1), and after obtaining from the institution concerned such other
particulars as it may consider necessary, it shall,--
-
if it is satisfied that such
institution has adequate financial resources, accommodation, library, qualified
staff, laboratory and that it fulfils such other conditions required for proper
functioning of the institution for a course or training in teacher education,
as may be determined by regulations, pass an order granting recognition to such
institution, subject to such conditions as may be determined by regulations; or
-
if it is of the opinion that such
institution does not fulfil the requirements laid
down in sub-clause (a), pass an order refusing recognition to such institution
for reasons to be recorded in writing;
Provided
that before passing an order under sub-clause (b), the Regional Committee shall
provide a reasonable opportunity to the concerned institution for making a
written representation.
-
Every
order granting or refusing recognition to an institution for a course or
training in teacher education under sub-section (3) shall be published in the
Official Gazette and communicated in writing for appropriate action to such
institution and to the concerned examining body, the local authority or the
State Government and the Central Government.
-
Every
institution, in respect of which recognition has been refused
shall discontinue the course or training in teacher education from the end of
the academic session next following the date of receipt of the order refusing
recognition passed under clause (b) of sub-section (3).
-
Every
examining body shall, on receipt of the order under sub-section (4),--
-
grant affiliation to the
institution, where recognition has been granted; or
-
cancel the affiliation of the institution,
where recognition has been refused.
-
-
Where any recognised
institution intends to start any new course or training in teacher education,
it may make an application to seek permission therefor
to the Regional Committee concerned in such form and in such manner as may be
determined by regulations.
-
The fees to be paid along with the
application under sub-section (1) shall be such as may be prescribed.
-
On receipt of an application from an
institution under sub-section (1), and after obtaining from the recognised institution such other particulars as may be
considered necessary, the Regional Committee shall,--
-
if it is satisfied that such recognised institution has adequate financial resources,
accommodation, library, qualified staff, laboratory and that it fulfils such
other conditions required for proper conduct of the new course or training in
teacher education, as may be determined by regulations, pass an order granting
permission, subject to such conditions as may be determined by regulation; or
-
if it is of the opinion that such
institution does not fulfil the requirements laid
down in sub-clause (a), pass an order refusing permission to such institution,
for reasons to be recorded in writing;
Provided that before passing an order refusing permission
under sub-clause (b), the Regional Committee shall provide a reasonable
opportunity to the institution concerned for making a written representation.
-
Every order granting or refusing
permission to a recognised institution for a new
course or training in teacher education under sub-section (3), shall be
published in the Official Gazette and communicated in writing for appropriate
action to such recognised institution and to the
concerned examining body, the local authority the State Government and the
Central Government".
Section
16 opens with a non-obstante clause and requires an
affiliating body to grant affiliation only after recognition or permission by
the Council. Contravention of the provisions of the Act and
consequences thereof have been specified in Section 17. Appellate
provision is found in Section 18.
Section
31 of the Act enables the Central Government to make Rules to carry out the
purposes of the Act.
Likewise,
Section 32(1) empowers the Council to make Regulations not inconsistent with
the provisions of the Act and the Rules made thereunder
for the purpose of carrying out of the provisions of the Act. Sub-section (2)
of Section 32 expressly states that in particular and without prejudice to the
generality of power to make Regulations, such Regulations may provide for the
matters enumerated in clauses (a) to (p). Clauses (d), (e), (f) and (g) are
relevant and read thus:
-
"
the norms, guidelines and standards in respect of-
-
the
minimum qualifications or a person to be employed as a teacher under clause (d)
of Section 12;
-
the
specified category of courses or training in teacher education under clause (e)
of section 12;
-
starting
of new courses or training in recognized institutions under clause (f) of
section 12;
-
standards
in respect of examinations leading to teacher education qualifications referred
to in clause (g) of section 12;
-
the
tuition fees and other fees chargeable by institutions under clause (h) of
section 12;
-
the
schemes for various levels of teacher education, and identification of
institutions for offering teacher development programmes
under clause (1) of section 12;
-
"
the form and the manner in which an application for recognition is to be
submitted under sub-section (1) of Section 14;
-
Conditions
required for the proper functioning of the institution and conditions for
granting recognition under clause (a) of sub- section (3) of Section 14;
-
the
form and the manner in which an application for permission is to be made under
sub-section (1) of Section 15" In exercise of the power conferred by
Section 32 of the Act, the Council framed Regulations known as the National
Council for Teacher Education (Form of application for recognition, the
time-limit of submission of application, determination of norms and standards
for recognition of teacher education programmes and
permission to start new course or training) Regulations, 1995.
Regulation
5 deals with the manner of making application and Regulation 8 relates to
conditions for recognition. Clauses (e), (f) and (g) of Regulation 5 read as
under:
-
-
"Every institution intending to
offer a course or training in teacher education but was not functioning
immediately before 17.8.1995, shall submit application for recognition with a
no-objection certificate from the State or Union Territory in which the
institution is located.
-
Application for permission to start
new course or training and/or to increase intake by recognized institutions
under Regulation 4 above shall be submitted to the Regional Committee concerned
with no-objection certificate from the State or
Union Territory in which the institution is
located.
The
State Government shall make available to the concerned Regional Committee of
NCTE its views/recommendations which will be considered by the Regional
Committee while taking a decision on the application for recognition."
Regulation 8 imposes conditions for recognition and reads thus:
-
"Condition for recognition-
-
Regional Committee shall satisfy
itself on the basis of scrutiny and verification of facts as contained in the
application for recognition and/or recognition of the institution where
considered necessary or any other manner deemed fit, that the institutions have
adequate financial resources, accommodation, library, qualified staff,
laboratory and such other conditions required for the proper functioning of the
institutions for the course of training in teacher education which are being
offered or intending to offer.
-
Regional Committee shall ensure that
every institution applying for recognition fulfils the conditions given in
Appendix III." It appears that NCTE had framed Guidelines for the State
Government / Union Territory by a notification, dated February
2, 1996 for
issuance of NOC. The relevant Guidelines read thus:
-
"The establishment of Teacher
Training Institutions by Government, private managements or any other agencies
should largely be determined by assessed need for trained teachers. This need
should take into consideration the supply of trained teachers from existing
institutions, the requirement of such teachers in relation to enrolment
projections at various stages, the attrition rates among trained teachers due
to superannuation, change of occupation, death etc. and the number of trained
teachers on the live register of the employment exchanges seeking employment
and the possibility of their deployment.
The States having more than the required number of trained
teachers may not encourage opening of new institutions for teacher education or
to increase the intake.
-
States having shortage of trained
teachers may encourage establishment of new institutions for teacher education
and to increase intake capacity for various levels of teacher education
institutions keeping in view the requirements of teachers estimated for the
next 10-15years.
-
Preference might be given to
institutions which tend to emphasize the preparation of teachers for subjects
(such as Science, Mathematics, English etc.) for which trained teachers have been in short supply in relation to requirement of
schools.
-
Apart from the usual courses for
teacher preparation, institutions which propose to concern themselves with new
emerging specialities (e.g. computer education, use
of electronic media, guidance and counselling etc.)
should receive priority. Provisions for these should however, be made only after ensuring that requisite manpower,
equipment and infrastructure are available. These considerations will also be
kept in view by the institution intending to provide for optional subjects to
be chosen by students such as guidance and counselling
special education etc.
-
With a view to ensuring supply of
qualified and trained teachers for such specialities
such as education of the disabled, non-formal education, education of adults,
preschool education, vocational education etc. special efforts and incentives
may be provided to motivate private managements/voluntary organizations for
establishment of institutions, which lay emphasis on these areas.
-
With a view to promoting
professional commitment among prospective teachers, institutions which can
ensure adequate residential facilities for the Principal and staff of the
institutions as well as hostal facilities for
substantial proportion of its enrolment should be encouraged.
-
Considering that certain areas
(tribal, hilly regions etc.) have found it difficult to attain qualified and
trained teachers, it would be desirable to encourage establishment of trained
institutions in those areas.
-
Institutions should be allowed to
come into existence only if the sponsors are able to ensure that they have
adequate material and manpower resources in terms, for instance, of qualified
teachers and other staff, adequate buildings and other infrastructure
(laboratory, library etc.), a reverse fund and operating funds to meet the
day-to-day requirements of the institutions, including payment of salaries,
provision of equipment etc. Laboratories, teaching science methodologies and practicals should have adequate gasplants,
proper fittings and regular supply of water, electricity etc. They should also
have adequate arrangements. Capabilities of the institution for filing norms
prepared by NCTE may be kept in view.
-
In the establishment of an
institution preference needs to be given to locations which have a large catchment area in terms of schools of different levels
where student teachers can be exposed to demonstration lessons and undertake
practice teaching. A training institution which has a demonstration school
where innovative and experimental approaches can be demonstrated could be given
preference." In St. John Teachers Training Institute, the validity of the
Regulations, particularly clauses (e) & (f) of Regulation 5 came to be
challenged. It was contended that the provision for submitting an application
for recognition with NOC issued by the State Government or
Union Territory in which the institution was
situated was invalid and ultra vires. It was argued
that Section 14 of the Act mandates NCTE to grant recognition if it is
satisfied that the institution making an application for the grant of
recognition has fulfilled the necessary requirements laid
down in the said section. Clauses (e) and (f) of Regulation 5, however,
insisted the institution to obtain NOC from the State Government/Union
Territory which was wholly outside the provisions of the Act. State
Government/Union Territory was totally alien so far as the recognition was
concerned and by insisting NOC from State Government / Union Territory, NCTE
has created a parallel body unknown to the law and hence, clauses (e) and (f)
of Regulation 5 were liable to be struck down declaring them to be ultra vires.
NCTE
filed a counter-affidavit and supported the Government contending that its
action of taking assistance from the State Government /
Union Territory could not be held illegal or ultra vires. It was conceded that sub-section (3) of Section 14
imposed duty upon Regional Committees of NCTE to be satisfied about fulfillment
of necessary conditions and grant of recognition of an institution which had
made an application. The said provision, however, required the institution to
have adequate financial resources, accommodation, library, qualified staff,
laboratory, etc. for proper functioning of the institution for a course or
training in teacher education. It was then stated that there were only four
Regional Committees in the whole country and hence each Regional Committee had
to deal with application for grant of recognition from more than one State. It
was, therefore, not only difficult but almost impossible for the Regional
Committee to obtain complete particulars and full details of financial
resources, accommodation, library etc. of the institutions applying for
recognition. Again, the institution might have been located in the interior
part of a district or at a remote place of the State. It was, thus, a Herculean
task for the Regional Committee to perform and to undertake the exercise and it
was necessary to depend upon some other agency or body for such information. It
was thought that the State Government / Union Territory in which the institution was
situated would be in a better position to supply such information so as to
enable the regional committee to effectively exercise powers in consonance with
law. It was, therefore, made incumbent upon the institution to apply for NOC
from the State Government / Union Territory concerned. The Regulations thus
facilitated the job of the Regional Committee in discharging their statutory
duties and responsibilities.
It was
contended by the petitioners before this Court that there were no guidelines
for the State Government / Union Territory for grant of NOC and it was open to
such authority to grant or refuse NOC on wholly irrelevant considerations. The
Court, however, referred to the affidavit filed by the State and perused the
relevant Guidelines which ought to be considered for the grant of NOC and held
that the State Government / Union Territory would confine to matters enumerated
in those Guidelines.
The Court observed:
"A
perusal of the guidelines would show that while considering an application for
grant of an NOC the State Government or the Union Territory has to confine
itself to the matters enumerate therein like assessed need for trained
teachers, preference to such institutions which lay emphasis on preparation of
teachers for subjects like Science, Mathematics, English etc. for which trained
teachers are in short supply and institutions which propose to concern
themselves with new and emerging specialties like computer education, use of
electronic media etc. and also for specialty education for the disabled and
vocational education etc. It also lays emphasis on establishment of institutions
in tribal and hilly regions which find it difficult to get qualified and
trained teachers and locations which have catchment
area in terms of schools of different levels where student teachers can be
exposed to demonstration lessons and can undertake practice teaching. Para 8 of the
guidelines deals with financial resources, accommodation, library and other
infrastructure of the institution which is desirous of starting a course of
training and teacher education. The guidelines clearly pertain to the matters enumerated in
sub- section (3) of Section 14 of the Act which have to be taken into
consideration by the Regional Committee while considering the application for
granting recognition to an institution which wants to start a course for
training in teacher education. The guidelines have also direct nexus to the
object of the Act, namely planned and coordinated development to teacher
education system and proper maintenance of norms and standards. It cannot,
therefore, be urged that the power conferred on the State Government or
Union Territory, while considering an application
for grant of an NOC, is an arbitrary or unchannelled
power. The State Government or the Union Territory has to necessarily confine itself
to the guidelines issued by the Council while considering the application for
grant of an NOC. In case the State Government does not take into consideration
the relevant factors enumerated in sub-section (3) of Section 14 of the Act and
the guidelines issued by the Council or takes into consideration factors which
are not relevant and rejects the application for grant of an NOC, it will be
open to the institution concerned to challenge the same in accordance with law.
But,
that by itself, cannot be a ground to hold that the
Regulations which require an NOC from the State Government or the
Union Territory are ultra vires
or invalid." Though it was urged that blanket power had been conferred on
NCTE and there was abdication of essential function by NCTE in favour of State Government /
Union Territory, the contention was negatived observing that the function performed by the
State Government / Union Territory was more in the nature of
collection of data and material. Referring to Regulation 6 as amended in 2002, the Court negatived the
contentions and observed:
"Regulation
6(ii) of these Regulations provides that the endorsement of the State
Government/Union Territory Administration in regard to issue of NOC will be
considered by the Regional Committee while taking a decision on the application
for recognition. This provision shows that even if the NOC is not granted by
the concerned State Government or Union Territory and the same is refused, the entire
matter will be examined by the Regional Committee while taking a decision on
the application for recognition. Therefore, the grant or refusal of a NOC by
the State Government or Union Territory is not conclusive or binding and
the views expressed by the State Government will be considered by the Regional
Committee while taking the decision on the application for grant of
recognition. In view of these new Regulations the challenge raised to the
validity of Regulations 5(e) and (f) has been further whittled down. The role
of the State Government is certainly important for supplying the requisite data
which is essential for formation of opinion by the Regional Committee while
taking a decision under Sub-section (3) of Section 14 of the Act. Therefore no
exception can be taken to such a course of action." The Court, however,
held that the State Government must exercise power within "reasonable
time". It was indicated that if the State Government would not take a
decision within that period, it would defeat the right of the institution to
have its application considered by the regional committee of NCTE. It was, therefore,
proper for the Council to frame appropriate Regulation for fixing time limit
within which a decision should be taken by the State Government on the
application made by the institution for grant of NOC. In absence of such
regulation and fixing of time limit, the Court held that such decision should
be taken by the State Government / Union territory within "four
months" failing which NOC would be deemed to have been granted.
It may
be stated that after the decision in St. John Teacher Training Institute, the
Regulations have been amended in 2003 and now the period has been prescribed as
six months.
Mr. Andhyarujina strongly relied upon the above decision and
submitted that the point is finally concluded in the above case and once the
action has been taken by the State Government in pursuance of the Regulations
framed by NCTE which were held intra vires and
constitutional, the decision of the State Government cannot be ignored or
overlooked by NCTE and is binding upon it. According to the learned counsel,
the Cabinet Sub-Committee took into account relevant circumstances and decided
not to grant NOC. The said decision cannot be held bad and NCTE cannot grant
recognition to colleges to which NOC had not been granted by the State
Government.
We
may, however, state that NCTE and contesting respondents are right in relying
upon a decision of this Court in Adhiyaman, referred
to earlier. In Adhiyaman, this Court was called upon
to consider the constitutional validity of some of the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and the Rules
made thereunder as also the Madras University Act,
1923 and the Rules made thereunder. It was contended
that certain provisions of the State Acts were inconsistent with the provisions
of the Central Act (All India Council for Technical Education Act, 1987) and
hence were inoperative. This Court upheld the contention of the petitioners and
ruled that State Legislature could not enforce an Act if it is inconsistent
with the Central Act and to the extent of such inconsistency, the Central Act
would operate and State Acts would be inoperative.
It is,
no doubt, true that in that case, this Court considered the provisions of the
Technical Education Act, 1987 but the provisions of that Act are almost similar
to the provisions of 1993 Act with which we are concerned.
The
Preamble of the said Act is also similar to the one with which we are concerned
and reads thus:
"An
Act to provide for the establishment of an All India Council for Technical
Education with a view to the proper planning and co-ordinaed
development of the technical education system throughout the country, the
promotion of qualitative improvements of such education in relation to planned
quantitative growth and the regulation and proper maintenance of norms and
standards in the technical education system and for matters connected
therewith." The Court considered the relevant provisions of the
Constitution read with Lists I, II and III of Schedule VII and held that the
subject of technical education rested with Parliament as it was covered by
Entry 66 of List I of Schedule VII and it was not covered by List II or List
III.
Accordingly,
it was held that if an Act of State Legislature was inconsistent with the
provisions of an Act of Parliament, to the extent of such inconsistency, it
would be inoperative.
Referring
to the Preamble of the Act, the Court stated; "The Preamble of the Central
Act states that it has been enacted to provide for the establishment of an All
India Council for Technical Education with a view to
-
proper
planning and coordinated development of the technical education system
throughout the country,
-
promotion
of qualitative improvement of such education in relation to planned
quantitative growth,
-
regulation
and proper maintenance of norms and standards in the technical education
system, and
-
or matters connected therewith." In that case, the State Government
granted permission to the petitioner Trust to start new
Engineering College subject to fulfillment of certain
conditions.
Temporary
affiliation was also granted by the University and the college started
functioning from July, 1987. In 1989, a show cause notice was issued by the
State on the basis of the report of High Power Committee that the Trust had not
fulfilled the conditions imposed on it and as to why permission should not be
withdrawn. University also issued a similar notice calling upon the Trust to
show cause why affiliation should not be cancelled.
The Trust, hence, approached the High Court by filing a petition under Article
226 of the Constitution contending inter alia that
after passing of the Central Act, neither the State Government nor the
University had power, authority or jurisdiction to take any action and the only
power the State had was to refer the matter to the All India Council of
Technical Education since the duty was imposed on the Council for recognizing
or derecognizing any technical institution in the country. The contention was
upheld by the High Court.
When
the matter came up before this Court at the instance of the State Government,
the Court observed that the larger question involved in the case was the
conflict between the Central Act on the one hand and the State Acts on the
other. Then considering the relevant provisions of the Constitution and the
Central Act and State Acts, the Court stated:
"The
aforesaid provisions of the Act including its preamble make it abundantly clear
that the Council has been established under the Act for coordinated and
integrated development of the technical education system at all levels
throughout the country and is enjoined to promote qualitative improvement of
such education in relation to planned quantitative growth. The Council is also
required to regulate and ensure proper maintenance of norms and standards in
the technical education system.
The
Council is further to evolve suitable performance appraisal system
incorporating such norms and mechanisms in enforcing their accountability. It
is also required to provide guidelines for admission of students and has power
to withhold or discontinue grants and to de-recognise
the institutions where norms and standards laid down by it and directions given
by it from time to time are not followed. This duty and responsibility cast on
the Council implies that the norms and standards to be set should be such as
would prevent a lopsided or an isolated development of technical education in
the country. For this purpose, the norms and standards to be prescribed for the
technical education have to be such as would on the one hand ensure development
of technical education system in all parts of the country uniformly; that there
will be coordination in the technical education and the education imparted in
various parts of the country and will be capable of being integrated in one
system; that there will be sufficient number of technically educated
individuals and that their growth would be in a planned manner; and that all
institutions in the country are in a position to properly maintain the norms
and standards that may be prescribed by the Council. The norms and standards
have, therefore, to be reasonable and ideal and at the same time, adaptable,
attainable and maintainable by institutions throughout the country to ensure
both quantitative and qualitative growth of the technically qualified personnel
to meet the needs of the country. Since the standards have to be laid down on a
national level, they have necessarily to be uniform throughout the country
without which the coordinated and integrated development of the technical education
all over the country will not be possible which will defeat one of the main
objects of the statute. This country as is well known,
consists of regions and population which are at different levels of progress
and development or to put it differently, at differing levels of backwardness.
This is not on account of any physical or intellectual deficiency but for want
of opportunities to develop and contribute to the total good of the country.
Unnecessarily high norms or standards, say for admission to the educational
institutions or to pass the examinations, may not only deprive a vast majority
of the people of the benefit of the education and the qualification, but would
also result in concentrating technical education in the hands of the affluent
and elite few and in depriving the country of a large number of otherwise
deserving technical personnel. It is necessary to bear this aspect of the norms
and standards to be prescribed in mind, for a major debate before us centred around the right of the
States to prescribe standards higher than the one laid down by the Council.
What is further necessary to remember is that the Council has on it
representatives not only of the States but also for the State Universities.
They have, therefore, a say in the matter of laying down the norms and
standards which may be prescribed by the Council for such education from time
to time. The Council has further the Regional Committees, at present, at least,
in four major geographical zones and the constitution and functions of the
Committees are to be prescribed by the regulations to be made by the Council.
Since the Council has the representation of the States and the professional
bodies on it which have also representation from different States and regions,
they have a say in the constitution and functions of these Committees as well.
What is further important to note is that the subject covered by this statute
is fairly within the scope of Entry 66 of List I and Entry 25 of List III.
Further,
these regulations along with other regulations made by the Council and the
rules to be made by the Central Government under the Act are to be laid before
Parliament. Hence, on the subjects covered by this statute, the State could not
make a law under entry 11 of List II prior to Forty-second Amendment nor can it
make a law under Entry 25 of List III after the Forty-second Amendment. If
there was any such existing law immediately before the commencement of the
Constitution within the meaning of Article 372 of the Constitution, as the Madras
University Act, 1923, on the enactment of the present Central Act, the
provisions of the said law if repugnant to the provisions of the Central Act
would stand impliedly repealed to the extent of repugnancy.
Such
repugnancy would have to be adjudged on the basis of the tests which are
applied for adjudging repugnancy under Article 254 of the Constitution." (emphasis supplied) The Court then considered the provisions
of the State Law and concluded; "The provisions of the State Act
enumerated above show that if it is made applicable to the technical
institutions, it will overlap and will be in conflict with the provisions of
the Central Act in various areas and, in particular, in the matter of
allocation and disbursal of grants, formulation of schemes for initial and
in-service training of teachers and continuing education of teachers, laying
down norms and standards for courses, physical and institutional facilities,
staff pattern, staff qualifications, quality instruction assessment and
examinations, fixing norms and guidelines for charging tuition and other fees,
granting approval for starting new technical institutions and for introduction
of new courses or programmes, taking steps to prevent
commercialization of technical education, inspection of technical institutions,
withholding or discontinuing grants in respect of courses and taking such other
steps as may be necessary for ensuring compliance of the directions of the
Council, declaring technical institutions at various levels and types fit to
receive grants, the constitution of the Council and its Executive Committee and
the Regional Committees to carry out the functions under the Central Act, the
compliance by the Council of the directions issued by the Central Government on
questions of policy etc. which matters are covered by the Central Act.
What
is further, the primary object of the Central Act, as discussed earlier, is to
provide for the establishment of an All India Council for Technical Education
with a view, among others, to plan and coordinate the development of technical
education system throughout the country and to promote the qualitative
improvement of such education and to regulate and properly maintain the norms
and standards in the technical education system which is subject within the
exclusive legislative field of the Central Government as is clear from Entry 66
of the Union List in the Seventh Schedule. All the other provisions of the Act
have been made in furtherance of the said objectives.
They
can also be deemed to have been enacted under Entry 25 of List III. This being
so, the provisions of the State Act which impinge upon the provisions of the
Central Act are void and, therefore, unenforceable. It is for these reasons
that the appointment of the High Power Committee by the State Government to
inspect the respondent-Trust was void as has been rightly held by the High
Court." The same principle was applied to University Act and the Court
held that after coming into operation of the Central Act, the operation of the
University Act would be deemed to have become unenforceable in case of
technical colleges. It was observed that the provisions of the University Acts
regarding affiliation of technical colleges and the conditions for grant of
continuation of such affiliations by the University would remain operative but
the conditions that are prescribed by the University for grant and continuance
of affiliation must be in conformity with the norms and guidelines prescribed
by the Council.
The
Court then considered the argument put forward on behalf of the State that
while it would be open for the Council to lay down minimum standards and
requirements, it did not preclude the State from prescribing higher standards
and requirements.
Negativing the contention, the Court quoted with approval the
following observations of B.N. Rau, J. in G.P. Stuart v. B.K. Roy Chaudhury (AIR 1939 Cal 628: 43 Cal W.N 913);
"It
is sometimes said that two laws cannot be said to be properly repugnant unless
there is a direct conflict between them, as when one says "do" and
the other "don't", there is no true repugnancy, according to this
view, if it is possible to obey both the laws. For reasons which we shall set
forth presently, we think that this is too narrow a test; there may well be
cases of repugnancy where both laws say "don't" but in different
ways. For example, one lay may say "No person shall sell liquor by retail,
that is, in quantities of less than five gallons at a time" and another
law may say, "No person shall sell liquor by retail, that is, in
quantities of less than ten gallons at a time." Here, it is obviously
possible to obey both laws, by obeying the more stringent of the two, namely
the second one; yet it is equally obvious that the two laws are repugnant, for
to the extent to which a citizen is compelled to obey one of them, the other,
though not actually disobeyed, is nullified." Reference was also made to a
decision of this Court in Jaya Gokul
Educational Trust. Relying on Adhiyaman and
reiterating the principle laid down therein, the Court
there held that once the field was occupied by an Act of Parliament, State
Legislature could not have made a statute inconsistent with the provisions of
Central Legislation. The Court, therefore, held that even if there was a State
Law which required something to be done for the approval of the State
Government for establishing a technical institution, such law, if it is
inconsistent or repugnant with the Central Law, it would be "void" to
the extent of repugnancy to the Act of Parliament.
In
that case also, like here, the State Government sought to support its action of
not permitting new Engineering College to be established on the ground of
'policy'. It was stated by the State of Kerala that it would not permit
establishment of any more Engineering Colleges in the State in view of large
number of already existing colleges bearing in mind the interest of the
students and the employment condition.
Relying
on Adhiyaman, it was observed that the so called
'policy' of the State Government as mentioned in the counter-affidavit filed by
the State, could not be made a ground for refusing approval. The Court held
that 'essentiality certificate' cannot be withheld by the State Government on
any 'policy consideration' because the policy in the matter of establishment of
a new college rested essentially with the Central Government.
The Court Stated:
"Therefore,
the State could not have any 'policy' outside the AICTE Act and indeed if it
had a policy, it should have placed the same before AICTE and that too before
the latter granted permission. Once that procedure laid down in the AICTE Act
and Regulations had ben followed under Regulation
8(4), and the Central Task Force had also given its favourable
recommendations, there was no scope for any further objection or approval by
the State. We may however add that if thereafter, any fresh facts came to light
after an approval was granted by AICTE or if the State felt that some
conditions attached to the permission and required by AICTE to be complied
with, were not complied with, then the State Government could always write to
AICTE, to enable the latter to take appropriate action." (emphasis supplied) Our attention was also invited to Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical
Educational & Charitable Trust v. State of Tamil Nadu
& Others, [(1996) 3 SCC 15 : JT 1996 (2) SC 692].
There the question was of repugnancy between the provisions of the Indian
Medical Council Act, 1956 and Tamil Nadu Medical
University Act, 1987 renamed as Dr. M.G.R. Medical University, Tamil Nadu (Amendment and Validation) Act, 1989. Section 10A of
the Indian Medical Council Act, 1956 as inserted by the Indian Medical Council
(Amendment) Act, 1993, which was a Central Act enacted by the Parliament,
required permission for establishing new medical colleges in the country
"notwithstanding anything contained" in the said Act or any other law
for the time being in force.
Proviso to sub-section (5) of Section 5 of Dr. M.G.R.
Medical Univeristy, Tamil Nadu
Act, 1989 (State Act), however, enacted: "No college shall be affiliated
to the University unless the permission of the Government to establish such
college has been obtained". In the light of the proviso to sub-section (5) of Section 5
of the State Act, it was contended by the State Government that unless
permission of the Government to establish medical college had been obtained
from the State Government, no medical college could be opened, even if such
permission was granted by the Medical Council under the Central Act. In that
case too, the State Government refused to grant permission to any private Trust
to establish medical college by exercising power under the State Act, on the
ground that it was the policy of the Government not to permit a private Trust
or Management to start medical/dental college. Relying
on proviso to sub-section (5) of Section 5 of the State Act, it was urged on
behalf of the State Government that the action taken by the State Government
was legal, valid and in accordance with law and an institution cannot make any
grievance against the State Government. The Court thus was called upon to
consider the question as to which Act would pevail.
Whereas the Central Act conferred power on the Central Government on the basis
of the recommendation made by the Medical Council of India to open a new
medical college, the State Act required the permission of the State Government
by enacting that no college shall be affiliated to the University unless such
permission is granted by the State Government.
Referring
to the relevant provisions of the Constitution, of both the Acts and the
relevant case law on the point, this Court observed that the question which had
arisen before the Court was as to the role of the State Government in the
matter of establishment of a medical college.
Interpreting
the statutory provisions, this Court held that by enacting Section 10A,
Parliament had made "a complete and exhaustive provision covering the
entire field for establishment of new medical college in the country". No
further scope is left for the operation of the State Legislation in the said
field which was fully covered by the law made by Parliament. The Court,
therefore, held that the proviso to sub-section (5) of Section 5 of the State
Act which required prior permission of the State Government for establishing a
medical college was repugnant to Section 10A of the Central Act and to the
extent of repugnancy, the State Act would not operate. The Court noted that in
the scheme that had been prepared under the Regulations for the establishment
of new medical colleges, one of the conditions for the qualifying criteria laid
down was 'essentiality certificate' regarding desirability and of having the
proposed college at the proposed location which should be obtained from the
State Government. Proviso to sub- section (5) of Section 5 of the Act,
therefore, must be construed only as regards "proposed location". The
'essentiality certificate', however, could not be withheld by the State
Government on any 'policy consideration' inasmuch as the policy and the matter
of establishment of new medical college rested with the Central Government
alone.
From
the above decisions, in our judgment, the law appears to be very well settled.
So far as co-ordination and determination of standards in institutions for
higher education or research, scientific and technical institutions are
concerned, the subject is exclusively covered by Entry 66 of List I of Schedule
VII to the Constitution and State has no power to encroach upon the legislative
power of Parliament. It is only when the subject is covered by Entry 25 of List
III of Schedule VII to the Constitution that there is a concurrent power of
Parliament as well as State Legislatures and appropriate Act can be by the
State Legislature subject to limitations and restrictions under the
Constitution.
In the
instant case, admittedly, Parliament has enacted 1993 Act, which is in force.
The Preamble of the Act provides for establishment of National Council for
Teacher Education (NCTE) with a view to achieving planned and coordinated
development of the teacher-education system throughout the country, the
regulation and proper maintenance of norms and standards in the teacher-
education system and for matters connected therewith.
With a
view to achieving that object, National Council for Teacher Education has been
established at four places by the Central Government. It is thus clear that the
field is fully and completely occupied by an Act of Parliament and covered by
Entry 66 of List I of Schedule VII. It is, therefore, not open to the State
Legislature to encroach upon the said field. Parliament alone could have
exercised the power by making appropriate law. In the circumstances, it is not
open to State Government to refuse permission relying on a State Act or on
'policy consideration'.
Even
otherwise, in our opinion, the High Court was fully justified in negativing the argument of the State Government that no
permission could be refused by the State Government on 'policy consideration'.
As already observed earlier, policy consideration was negatived
by this Court in Thirumuruga Kirupananda
Trust, as also in Jaya Gokul
Educational Trust.
It is
true that during the pendency of St. John's Teachers
Training Institute, NCTE framed regulations called the NCTE (Form of
application for recognition, the time limit of submission of application,
determination of norms and standards for recognition of teacher education programmes and permission to start new course or training)
Regulations, 2002.
Regulation
6 required production of 'No Objection Certificate' from the State
Government/Union Territory. Clause (1) thereof read thus;
-
Requirement of No Objection
Certificate from the State Government/U.T. Administration.
-
Application from every institution seeking recognition
to start a course or training in teacher education or from an existing
institution seeking permission to start a new course or training and/or
increase in intake shall be accompanied by a No Objection Certification (NOC)
from the State or Union Territory in which the institution is
located. (emphasis supplied)
-
to (vii) The
above Regulations came into force from November 13, 2002 and they insisted that application
should be accompanied by NOC from the State Government/Union Territory in which
the institution is located.
In
view of the fact, however, that according to us, the final authority lies with
NCTE and we are supported in taking that view by various decisions of this
Court, NCTE cannot be deprived of its authority or power in taking an
appropriate decision under the Act irrespective of absence of No Objection
Certificate by the State Government/Union Territory. Absence or non-production
of NOC by the institution, therefore, was immaterial and irrelevant so far as
the power of NCTE is concerned.
At the
time of hearing, our attention was invited by the learned counsel for the
contesting respondents to Perspective Plan 2003-07 published by the National
Council for Teacher Education, New Delhi. It was, inter alia,
observed as under:
"In
the 10th Plan Central Scheme on Teacher Education, it has been estimated that
the country will need additional 4,58,000 primary
school teacher sand additional 6,08,857 upper primary school teachers.
Therefore, the requirements of the professionally qualified teachers have to be
met by increasing opportunities of pre-service elementary education based on
manpower planning of teachers for each State/Union Territory. For improving the
quality of teacher education, the curriculum of pre-service programmes
has to be renewed for making it relevant to the objectives of education and the
directions contained in the Constitution. Above all, professional competence o
teacher educators will have to be developed through in-service programmes and by introducing different M.Ed. courses with
focus on pre-service education of stage-specific school education. It is
planned to institute a National Eligibility Test for Teacher Educators based on
skills and competencies required for the teaching profession." Reference was
also made to "Department of Secondary and Higher Education" published
by the Government of India on January 25, 2006. The compilation relates to
Secondary Education, Adult Education, Technical Education, Higher Education
etc. In introduction, it has been stated :
"The
Secondary Education which serves as a bridge between primary and higher
education is expected to prepare young persons between the age group 14-18 in
the world of work and entry into higher education. The Secondary Education
starts with classes 9-10 leading to higher secondary classes 11 and 12. The
relevant children population at the secondary and senior secondary level, as
projected in 1996-97 by NSSO has been estimated at 9.66 crores.
Against this population, the enrolment figures of the 1997-98
shows that only 2.70 crores attending schools.
Thus, two-third of the eligible population remains out of the school system. To
accommodate the children in schools at secondary level, we have at present 1.10
lakhs institutions (1998-99). With the emphasis on universalisation of elementary education and programmes like District Primary Education Programme, the enrolment is bound to increase and once this
happens, we may require more than two lakhs
institutions at the secondary level to accommodate them." The counsel also
referred to the "Annual Report : 2004-05"
prepared by the Department of Elementary Education and Literacy, Department of
Secondary and Higher Education, Ministry of Human Resource Development,
Government of India. In the 'Planning', it was stated:
"Planning
The National Policy on Education, 1986, as modified in 1992 envisages the
improvement and expansion of education in all sectors, elimination of
disparities in access and laying greater stress on improvement in the quality
and relevance of education at all levels, including technical and professional
education.
It
also emphasizes that education must play a positive and interventionist role in
correcting social and regional imbalance, empowering women and in securing a
rightful place for the disadvantaged and the Minorities.
The
nation is firmly committed to providing Education for all, the priority areas
being free and compulsory primary education, covering children with special
needs, eradication of illiteracy, vocationalisation,
education for women's equality, and special focus on the education of SCs/STs and the Minorities.
The
Central Avisory Board of Education (CABE), the
highest advisory body to advise the Central and State governments in the field
of education, was established in 1920 and dissolved in 1923 as a measure of
economy. It was revived in 1935 and the tenure of the last constituted Central
Advisory Board of Education (CABE) expired in March 1994. Despite the fact that
in the past important decisions had been taken on the advice of CABE and it had
provided a forum for widespread consultation and examination of issues relating
to educational and cultural development, CABE was unfortunately not
reconstituted after the expiry of its extended tenure in March 1994.
Considering that CABE has a particularly important role to play at the present
juncture in view of the significant socio economic and socio-cultural
developments taking place in the country, and that the Central and State
Governments, educationists and people representing all interests should
increase their interaction and evolve a participative process of
decision-making in education, CABE has since been reconstituted by the
Government in July 2004. The Board consists of nominated members representing
various interests in addition to representatives of the Government of India,
State Governments and UT administrations, elected members form the Lok Sabha and the Rajya Sabha, etc. The first
meeting of the reconstituted CABE was held on August
10-11, 2004,
and seven CABE Committees have been set up on the subjects of:
-
Free
and Compulsory Education Bill and other issues related to Elementary Education
-
Girls
Education and the Common School System
-
Universalisation of Secondary Education
-
Autonomy
of Higher Education Institutions
-
Integration
of Culture Education in the School Curriculum
-
Regulatory
Mechanism for Text Books and Parallel Text Books taught in Schools Outside the
Government system
-
Financing of Higher and Technical Education A meeting of the Education Ministers of all States/UTs dealing with school education was held on October
28, 2004,
at Vigyan Bhawan under the
chairmanship of the Minister of Human Resource Development.
In
order to facilitate donations, including smaller amounts, both from India and
abroad, for implementing projects/programmes
connected with the education sector, the Government had constituted the "Bharat Shiksha Kosh" to receive donations/ contributions/endowments,
from individuals and corporates, Central and State
Governments, non-resident Indians and people of Indian origin for various
activities across all sectors of education.
An
Ordinance was promulgated on November 11, 2004, to enable setting up of a
National Commission for Minority Educational Institutions to advise the Central
Government or any State Government on any question regarding the education of
Minorities, to look into complaints regarding violation of the rights of the
Minorities, to establish and administer educational institutions of their
choice and to permit a Minority educational institution to seek direct
affiliation with a scheduled Central University. The Commission has started
functioning with a Chairman and two Members." 'Teacher Education' has been
dealt with thus;
"Teacher
Education The Centrally Sponsored Scheme of Teacher
Education was launched in 1987-88 to create an institutional infrastructure to
provide academic and technical resource support for continuous education and
training of school teachers. While District Institutes of Education and
Training (DIETs) set up under the Scheme provide
academic resource support to formal and non- formal elementary school teachers,
Colleges of Teacher Education (CTEs) and Institutes
of Advanced Study in Education (IASEs) have been
given the responsibility of organizing pre- service and in-service training of
secondary school teachers. IASEs are also expected to
conduct programmes for the preparation of elementary
school teacher educators.
The
Scheme has been revised for the Tenth Plan and guidelines of the revised Scheme
were issued to States in January 2004, with emphasis on operationalising
sanctioned DIETs, CTEs and IASEs in an optimum manner, and on improving the quality of
teacher training programmes in them. Since the
inception of the Scheme in 1987-88, a total of 550 DIETs/DRCs
and 131 CTEs/IASEs have been sanctioned/approved up
to December 2004." About 'Secondary Education', the Report states:
"Secondary
Education During the year, various schemes were
implemented in the secondary education sector in addition to the continued
support to major institutions such as the NCERT, NIOS, and CBSE.
There
has been a substantial increase in quality and magnitude of the academic
activities of the Central Board of Secondary Education. During the year, CBSE
introduced a course in Disaster Management in the school curriculum. A new
course in Life Skills Education was launched in classes VI and VII. It has also
launched a new course in Fashion Studies. In collaboration with Intel India, CBSE organized the first science
exhibition to evoke the interest of students in science.
The
NIOS organized an international conference on promotion of Open Schooling in Goa. Countries like Sri Lanka, New Zealand, Canada and UK participated in it. During 2004-05,
several new courses were introduced and many video films on vocational
education were completed. The NIOS has also developed audio and video programmes based on the curriculum in science, mathematics,
etc.
Support
to Sarva Shiksha Abhiyan, Vocational Education, Education of the
Disadvantaged groups, Evolution of text books and examination reforms are
priority areas of NCERT.
uninterrupted education to children of Central Government/Defence employees, who are liable students have been
enrolled (as on March 31, the performance of its students in board
examinations. This is evident from the increase of pass percentage from 84.69
per cent to 99.44 per cent for Class X and 88.67 per cent to 92.75 per cent for
Class XII during 1999 to 2004.
Jawahar Navodaya Vidyalayas
aim at providing good quality modern education, including imparting cultural
values, environment awareness and physical education to talented children in
rural areas, irrespective of their socio-economic conditions. There are now 509
schools in various States/UTs and 1,68,545
December 31, 2004. The pass percentage in Class X and XII in the year
2004 was 91.3 per cent and 87.68 per cent, respectively, when compared with the
pass percentage of 88.50 per cent and 85.26 per cent in 2003.
The
Integrated Education for Disabled Children (IEDC) scheme, started in 1974,
provides 100 per cent funding to State Governments/UTs
and NGOs. The scheme is proposed to be revised soon. Under the scheme of Access
with Equity, two components strengthening of existing scheme of girl's hostels
managed by NGOs and one-time assistance to reputed NGOs, Trusts, Societies and
State Governments, etc., for setting up Secondary Schools are proposed. The
scheme is therefore, being revised. The two schemes of Computer Literacy and
Studies in Schools (CLASS) and Educational Technology have been merged I order
to increase the effectiveness of the activities For the Tenth Plan, five
schemes, namely, Environmental Orientation to School Education, Improvement of
Science Education in School, National Population Education Project, Promotion
of Yoga in School, International Science Olympiad are being merged into a
composite scheme of Quality Improvement in Schools." It is thus clear that
the Central Government has considered the subject of Secondary Education and
Higher Education at the national level. The Act of 1993 also requires
Parliament to consider Teacher Education System 'throughout the country'. NCTE,
therefore, in our opinion, is expected to deal with applications for
establishing new B.Ed. colleges or allowing increase
in intake capacity, keeping in view 1993 Act and planned and co-ordinated development of teacher-education system in the
country.
It is
neither open to the State Government nor to a University to consider the local
conditions or apply 'State policy' to refuse such permission. In fact, as held
by this Court in cases referred to hereinabove, State Government has no power
to reject the prayer of an institution or to overrule the decision of NCTE. The
action of the State Government, therefore, was contrary to law and has rightly
been set aside by the High Court.
The
decision relied on by Mr. T.R. Andhyarujina in Vidharbha Sikshan Vyawasthapak Mahasangh v. State
of Maharashtra & Others, (1986) 4 SCC 361, has no
application to the facts of the case. In that case, the power was with the
State Government to grant or refuse permission to open B.Ed.
college. Considering the fact that if permission would
be granted, there would be a large scale unemployment,
it was decided by the State Government not to allow new D.Ed.
colleges to be opened.
It was
held by this Court that such policy decision could not be said to be arbitrary
or otherwise unreasonable. The Court in that case was not concerned with the
power or authority of State Government vis-`-vis Central Government and Act of Parliament. In the
present case, as the field was fully occupied by Entry 66 of List I of Schedule
VII to the Constitution and Parliament has enacted 1993 Act, it was not open to
the State Legislature to exercise power by making an enactment. Such enactment,
as per decisions of this Court, would be void and inoperative. It would be
unthinkable that if State Legislature could not have encroached upon a field
occupied by Parliament, it could still exercise power by executive fiat by
refusing permission under the 'policy consideration'. The contention of the
State Government, therefore, has to be negatived.
We may
state at this stage that the contesting respondents have placed heavy reliance
on Section 12 of the Act which relates to functions of the Council and
submitted that it is incumbent on the Council to lay down norms and guidelines
for ensuring planned and co-ordinated development of
the teacher education and it is not open to the Council to delegate those
'essential functions' to the State Government. According to them, such
delegation would be excessive and impermissible and abdication of power by the
Council in favour of the State Government which is
inconsistent with the provisions of the parent Act and must be held ultra vires. In reply, Mr. Andhyarujuna
submitted that the constitutional validity of the Regulations or Guidelines had
not been challenged before the High Court and the respondents now cannot be
permitted to raise such point in this Court in the absence of the challenge.
The respondents, however, urged that since they succeeded before the High Court
on other points, it was not necessary for them to challenge the vires of Regulations.
But
when the State had approached this Court, they can support the judgment on any
ground available to them including unconstitutionality of Regulations and
Guidelines.
In our
opinion, it is not necessary to enter into larger question since we are
satisfied that in the facts and circumstances of the case, the High Court was
justified in allowing the petitions filed by the colleges and setting aside the
order dated December 28, 2004 passed by the State Government and also in
dismissing the petition filed by the State holding that the order of the State
was not legal. We may, however, observe that the learned counsel for NCTE, Mr. Raju Ramachandran is right in
submitting that the Guidelines permitted the State Government to collect
necessary data and materials and make them available to NCTE so as to enable
NCTE to take an appropriate decision.
In
accordance with the provisions of 1993 Act, final decision can be taken only by
NCTE and once a decision is taken by NCTE, it has to be implemented by all
authorities in the light of the provisions of the Act and the law declared by
this Court. It has been so held in St. John Teachers training Institute.
The
learned counsel for the respondents are also right in
relying upon the provisions of Articles 19 and 21A of the Constitution. Under
clause (g) of Article 19(1), all citizens have the right to practise
any profession, or to carry on any occupation, trade or business, unless they
are restrained by imposing reasonable restrictions under Article 19(6). In the
instant case, applications had been made by colleges to NCTE under 1993 Act and
after complying with the provisions of the Act, permission was granted by NCTE.
The
State thereafter could not have interfered with the said decision. It is also
clear that Article 21A would cover primary as well as secondary education and
petitioners could claim benefit of Part III of the Constitution as well.
The
respondents have stated that they have spent huge amount and incurred
substantial expenditure on infrastructure, library, staff, etc. and after
satisfying about the necessary requirements of law, permission had been granted
by the NCTE. If the said action is set aside on the basis of the decision of
the State Government, irreparable loss will be caused to them. Since in our
view, the order passed and action taken by NCTE cannot be termed illegal or
unlawful and the State Government could not have passed the impugned order
refusing permission on the ground of so called 'policy' of not allowing new B.Ed. college to be opened, it is not necessary for us to
delve into further the said contention.
Before
parting with the matter, we may state that at one stage, the High Court has
observed that "in so far as the University is concerned, considering the
provisions of Section 15 of the NCTE Act, once permission has been granted
under Section 14, the University is bound to grant affiliation in terms of the
Act, Rules and Statutes. Section 83 requires the University to grant
affiliation only after permission is granted under Section 82 of the Maharashtra University Act. To that extent the provisions
of Section 82 and 83 are inconsistent with the provisions of NCTE Act and are
null and void".? (emphasis supplied) In our
opinion, the observations that the provisions of Sections 82 and 83 of the Maharashtra University Act are "null and void"
could not be said to be correct. To us, it appears that what the High Court
wanted to convey was that the provisions of Sections 82 and 83 would not apply
to an institution covered by 1993 Act. As per the scheme of the Act, once
recognition has been granted by NCTE under Section 14(6) of the Act , every university ('examining body') is obliged to
grant affiliation to such institution and sections 82 and 83 of the University
Act do not apply to such cases.
Since
we have decided the matters on merits, we have not dealt with preliminary
objection raised by the colleges that the State cannot be said to be 'person
aggrieved' and, therefore, has no locus standi to
challenge the decision of NCTE.
We
may, however, state that the academic year 2005- 06 is
almost over and as such it is not possible to grant the prayer of
respondent-colleges to allow them to admit students for the year 2005-06. It
is, therefore, directed that the order passed by NCTE would operate from the
next academic year, i.e. from the year 2006-07.
For
the foregoing reasons, all the appeals filed by the State are liable to be
dismissed and are accordingly dismissed with costs. Interim stay granted
earlier is hereby vacated.
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