Full Judgment Text
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CASE NO.:
Appeal (civil) 1859 of 2006
PETITIONER:
STATE OF MAHARASHTRA
RESPONDENT:
SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA & ORS
DATE OF JUDGMENT: 31/03/2006
BENCH:
Y.K. SABHARWAL, C.K. THAKKER & P.K. BALASUBRAMANYAN
JUDGMENT:
JUDGMENT
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.
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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
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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
Training Institute Vs. Regional Director, NCTE & Another,
[(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
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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
this Court, particularly in State of Tamilnadu & Anr. Vs.
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Adhiyaman Educational & Research Institute & Ors.,
[(1995) 4 SCC 104 : JT 1995 (3) SC 136], Jaya Gokul
Educational Trust Vs. Commissioner & Secretary, Higher
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
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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
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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
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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
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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-(1)
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").
(2) 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").
(3) 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’).
(4) 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: (i) Union List, (ii) State List and (iii) 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
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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
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and maintenance of standards for teacher
education and for the purposes of performing its
functions under this Act, the Council may-
(a) undertake surveys and studies
relating to various aspects of teacher
education and publish the result
thereof;
(b) 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;
(c) co-ordinate and monitor teacher
education and its development in the
country;
(d) lay down guidelines in respect of
minimum qualifications for a person to
be employed as a teacher in schools or
in recognised institutions;
(e) 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;
(f) 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;
(g) lay down standards in respect of
examinations leading to teacher
education qualifications, criteria for
admission to such examinations and
schemes of courses or training;
(h) lay down guidelines regarding
tuition fees and other fees chargeable
by recognised institutions;
(i) promote and conduct innovation and
research in various areas of teacher
education and disseminate the results
thereof;
(j) examine and review periodically the
implementation of the norms,
guidelines and standards laid down by
the Council, and to suitably advise the
recognised institutions;
(k) evolve suitable performance
appraisal systems, norms and
mechanisms for enforcing
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accountability on recognized
institutions;
(l) formulate schemes for various levels
of teacher education and identify
recognized institutions and set up new
institutions for teacher development
programmes;
(m) take all necessary steps to prevent
commercialization of teacher
education; and
(n) 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:
"14 (1) 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.
(2) The fee to be paid along with the application
under sub-section (1) shall be such as may be
prescribed.
(3) 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,--
(a) 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
(b) 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
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opportunity to the concerned institution
for making a written representation.
(4) 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.
(5) 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).
(6) Every examining body shall, on receipt of the
order under sub-section (4),--
(a) grant affiliation to the institution,
where recognition has been granted; or
(b) cancel the affiliation of the
institution, where recognition has been
refused.
15 (1) 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.
(2) The fees to be paid along with the application
under sub-section (1) shall be such as may be
prescribed.
(3) 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,--
(a) 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
(b) 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.
(4) 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
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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:
"(d) the norms, guidelines and standards in
respect of-
(i) the minimum qualifications or a
person to be employed as a teacher
under clause (d) of Section 12;
(ii) the specified category of courses or
training in teacher education under
clause (e) of section 12;
(iii) starting of new courses or training
in recognized institutions under clause
(f) of section 12;
(iv) standards in respect of
examinations leading to teacher
education qualifications referred to in
clause (g) of section 12;
(v) the tuition fees and other fees
chargeable by institutions under clause
(h) of section 12;
(vi) the schemes for various levels of
teacher education, and identification of
institutions for offering teacher
development programmes under clause
(1) of section 12;
"(e) the form and the manner in which an
application for recognition is to be submitted
under sub-section (1) of Section 14;
(f) Conditions required for the proper
functioning of the institution and conditions for
granting recognition under clause (a) of sub-
section (3) of Section 14;
(g) 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
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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:
"5. (e) 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.
(f) 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:
"8. Condition for recognition- (a) 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.
(b) 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:
"1. 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
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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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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
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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.
9. 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
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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
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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
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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 (i)
proper planning and coordinated development of the
technical education system throughout the country, (ii)
promotion of qualitative improvement of such education in
relation to planned quantitative growth, (iii) regulation and
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proper maintenance of norms and standards in the
technical education system, and (iv) for 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
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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
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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
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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
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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
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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
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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;
6. Requirement of No Objection Certificate
from the State Government/U.T.
Administration.
(i) 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)
(ii) to (vii) \005 \005 \005 \005 \005
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
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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
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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:
i) Free and Compulsory Education Bill and
other issues related to Elementary
Education
ii) Girls Education and the Common School
System
(iii) Universalisation of Secondary Education
(iv) Autonomy of Higher Education Institutions
(v) Integration of Culture Education in the
School Curriculum
(vi) Regulatory Mechanism for Text Books and
Parallel Text Books taught in Schools
Outside the Government system
(vii) 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,
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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
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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.
Kendriya Vidyalaya (KVs) aim at providing
uninterrupted education to children of Central
Government/Defence employees, who are liable
to frequent transfers. In 933 KVs, 7.50 lakh
students have been enrolled (as on March 31,
2004). KVs have shown steady improvement in
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
students were on the rolls of the NVs as on
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
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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
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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
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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.