IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23/02/2005 Coram The Hon'ble Mr. Justice P. SATHASIVAM and The Hon'ble Mr. Justice S.K. KRISHNAN Writ Appeal No. 4204 of 2004 and Writ Appeal Nos., 4205, 4237, 4240, 4241 of 2004, and 104, 150, 180, 305, 306 and 307 of 2005 and W.A.M.P.Nos. 7969, 7970, 8026, 8029 to 8031/2004, 150/2005, 235/2005,299/2005,and 553 to 557/2005 W.A.No.4204/2004 Bharathidasan University, represente Palkalaiperur, Tiruchirapalli-620 024. ..Appellant/Respondent.
-Vs-
Dhanalakshmi Srinivasan,
Educational and Charitable Trust,
represented by its Chairman,
Perambalur-621 212. .. Respondent/Petitioner.
W.A.No. 4205/2004
Bharathidasan University,
represented by its Registrar-in-charge,
Palkalaiperur, Tiruchirapalli-620 024.
..Appellant/4th Respondent.
Vs.
1. M.A.S. Subbiah Chettiar
Educational and Charitable Trust,
represented by its Managing Trustee,
West CIT Nagar, Chennai-600 035. ..Petitioner.
2. The State of Tamil Nadu,
represented by Secretary to
Government, Higher Education Department,
Fort St. George, Chennai-600 009. ..1st Respondent.
3. The Regional Director, National Council for Teacher Education, C.S.D. Building, HMT Post, Bangalore-560 031 ..2nd Respondent. 4. The Director of College
Education, Chennai-600 006. .. 3rd Respondent.
.. Respondents.
W.A.No. 4237/2004
1 State of Tamil Nadu,
represented by its Secretary,
Higher Education Department,
Fort St. George, Chennai-600 009.
2. Director of Collegiate Education,
Chennai-600 006.
.. Appellants/Respondents 1 and 3.
Vs.
1. M.A.S. Subbiah Chettiar
Educational and Charitable Trust,
represented by its Managing Trustee,
Chennai-600 035. ..Petitioner.
2. The Regional Director,
National Council for Teacher
Education, C.S.D. Building,
HMT Post, Bangalore-560 031 ..2nd Respondent.
3. The Registrar,
Bharathidasan University,
Palkalaiperur, Trichy. ..4th Respondent.
..Respondents.
W.A.No. 4240/2004
State of Tamil Nadu,
represented by its Secretary,
Higher Education Department,
Fort St. George, Chennai-600 009.
..Appellant/1st Respondent.
Vs.
1. Kasthuriba Gandhi College of
Education, run by Freedom Fighter
N. Kandasamy Educational Trust,
Athanur village, Rasipuram Taluk,
Namakkal District,
represented by its President
K. Chidambaram. .. Petitioner.
2. The Regional Director,
National Council for Teacher
Education, C.S.D. Road,
HMT Post, Jalahalli,
Bangalore-32 ..2nd Respondent.
3. The Registrar,
Periyar University, Salem. ..3rd Respondent.
.. Respondents.
W.A.No. 4241/2004
State of Tamil Nadu,
represented by its Secretary,
Higher Education Department,
Fort St. George, Chennai-600 009.
..Appellant/1st Repspondent.
Vs.
1. Parasakthi College of Education
Run by Muthuramaswamy Andal
Educational and Social Trust,
S. Kottaipatti, Peraiyur Taluk,
Madurai District-625 527,
represented by its Secretary,
M. Jagadeesan. ..Petitioner.
2. The Regional Director,
National Council for Teacher
Education, C.S.D. Road,
HMT Post, Jalahalli,
Bangalore-32 ..2nd Respondent.
3. The Registrar,
Madurai Kamaraj University,
Madurai. ..3rd Respondent.
.. Respondents.
W.A.No. 104/2005
The University of Madras,
represented by its
Registrar, Chepauk, Chennai-5.
..Appellant/Respondent.
Vs.
Christ Educational Trust,
represented by its Chairman,
No.74, Nehru Street,
Kumaran Nagar, Padi,
Chenni-600 050.
..Respondent/Petitioner.
W.A.No.150/2005
The University of Madras,
represented by its
Registrar, Chepauk, Chennai-5.
..Appellant/Respondent.
Vs.
Loordhu Ammal Educational Trust,
represented by its Secretary,
No.1A, Chari Street,
North Usman Road,
T.Nagar, Chennai-17.
..Respondent/Petitioner.
W.A.No.180/2005
The Registrar,
Madurai Kamaraj University,
Madurai.
.. Appellant/3rd Respondent.
Vs.
1. Parasakthi College of Education
Run by Muthuramaswamy Andal
Educational and Social Trust,
S. Kottaipatti, Peraiyur Taluk,
Madurai District,
represented by its Secretary,
M. Jagadeesan. ..Petitioner.
2. The State of Tamil Nadu,
represented by its Secretary,
Higher Educational Department,
Fort St. George, Chennai-9. .. 1st Respondent.
3. The Regional Director,
National Council for Teacher
Education, C.S.D. Road,
HMT Post, Jalahalli,
Bangalore-32 ..2nd Respondent.
.. Respondents.
W.A.No.305/2005
The Periyar University,
represented by its Registrar,
Salem-11.
.. Appellant/3rd Respondent.
Vs.
1. Kasthuriba Gandhi College of Education,
Run by Freedom fighter N. Kandasamy
Educational Trust, Athanur village,
Rasipuram Taluk, Namakkal District,
represented by its President
K. Chidambaram. ..Petitioner.
2. The State of Tamil Nadu,
represented by its Secretary,
Higher Education Department,
Fort St. George, Chennai-9. ..1st Respondent.
3. The Regional Director,
National Council for Teacher Education,
CSD Road, HMT Post, Jalahalli,
Bangalore-32. ..2nd Respondent.
.. Respondents.
W.A.No. 306/2005
The Periyar University,
represented by its Registrar,
Salem-11.
.. Appellant/Respondent.
Vs.
Pavai Varam Educational Trust,
represented by its Chairman
V. Natarajan, Rasipuram, 637 408.
.. Respondent/Petitioner.
W.A.No. 307/2005
The Periyar University,
represented by its Registrar,
Salem-11.
.. Appellant/Respondent.
Vs.
Madras Education and Research
Integrated Trust (MERIT),
represented by its Managing Trustee
T. Padmavathi.
.. Respondent/Petitioner.
Writ Appeals filed under Clause 15 of Letters Patent against judgement
of Single Judge of this Court dated 25-11-2004, made in Writ Petition No.
27757 of 2004;
29-11-2004, made in Writ Petition No. 28709/2004;
25-11-2004, made in Writ Petition No. 28009/2004;
25-11-2004, made in Writ Petition No. 28335/2004;
06-12-2004, made in Writ Petition No. 35283/2004;
06-12-2004, made in Writ Petition No. 34823/2004;
25-11-2004, made in Writ Petition No. 28009/2004;
25-11-2004, made in Writ Petition No. 28356/2004; and
25-11-2004, made in Writ Petition No. 27030/2004.
!Mr. P. Subbaya assisted by Mr. C.K. Chandrasekaran:-
Appellant in W.A.Nos. 4202, 4205/2004 and
3rd respondent in W.A.No. 4237/2004.
Mr. R. Muthukumarasamy, Addl. Advocate General,
assisted by Mr.V.Karthikeyan, Addl.Govt.,Pleader ( Edn.):- For Appellant in
W.A.Nos.4237,4240, 4241 and 305 to 307/2005 and respondents 2,4 in
W.A.No.4205/2004,for R-3 in W.A.No.4240/2004
and for 2nd respondent in W.A.No.180/2005.
Mr. R. Muthukumarasamy, Addl. Advocate General,
assisted by Mr. N. Rajan:- Appellant in W.A.Nos.
104 and 150/2005.
^Mr. P. Jyothimani:-For appellant in W.A.No.180/2005
and for 3rd respondent in W.A.No.4241/2004.
Mr. R. Krishnamoorthy, Senior counsel for Mr.
A. Jenasenan:- For Respondent in W.A.No.4204/2005.
Mr. N. Paul Vasanthakumar:- For 1st Respondent in
W.A.Nos. 4205, 4237/2004 and 307/2005.
Mr. S. Udayakumar, Senior Central Government
Standing counsel:- For R-3 in W.A.Nos. 4205/2004,
180/2005 and 305/2005; and for R-2 in W.A.Nos.
4237, 4240 and 4241/2004.
Mr. K. Chandru, Senior counsel for Mr. B. Rabu
Manohar:- For R-1 in W.A.Nos. 4240, 4241/2004
180/2005 and 305/2005.
Mr. E. Sampathkumar, Govt., Advocate for R-2
in W.A.No. 305/2005.
No appearance for Respondent in W.A.Nos. 104 and
150/2005.
:COMMON ORDER
(Order of Court was made by P. Sathasivam, J.,)
Higher Education Department of State of Tamil Nadu, Bharathidasan University,
Tiruchirapalli, aggrieved by the common order of the learned Single Judge
dated 25-11-2004, made in W.P.No. 27030/2004 etc., batch, directing the
Universities to consider the applications submitted by the
petitioner-Institution for grant of affiliation for conducting teacher
training course for the academic year 2004-20 05 without insisting on the
production of the No Objection Certificate from the State Government, have
filed the above Writ Appeals. Since the issues raised in all the Writ Appeals
are one and the same, they are being disposed of by the following order.
2. For convenience, we shall refer the facts leading to the filing of Writ
Appeal No. 4204/2004, filed by Bharathidasan University, Tiruchirapalli.
Dhanalakshmi Srinivasan Educational and Charitable Trust, Perambalur,
aggrieved by the proceedings of the Bharathidasan University, Tiruchirapalli
dated 23-9-2004 declining to consider and grant affiliation to their college
to establish a B.Ed., training course, has filed W.P.No. 27757/2004 for
quashing the same and for consequential direction to the University to
consider their application for affiliation for B.Ed., course for their college
in the name and style of Dhanalakshmi Srinivasan College of Education,
Perambalur for the academic year 2004-2005. According to them, their Trust
desired to establish a Teacher Training College at Perambalur. The course in
Teacher Education falls within the purview of the National Council for Teacher
Education constituted under the National Council for Teacher Education Act,
1993 (Act 73/1993) (“NCTE Act” in short). As per the NCTE Act and the
National Council for Teacher Education Regulations, 2002, if a Management or
Institution desired to establish a Teacher Training College or a Teacher
Training Institute, it has to obtain a No Objection Certificate (NOC) from the
State Government and make an application to the National Council for Teacher
Education ( NCTE) along with the said NOC. Accordingly, the petitioner
submitted an application to the State Government for grant of NOC to establish
a Teacher Training College. The State Government passed orders on 01-01-2004
rejecting their claim. Since the State Government rejected their application,
the petitioner filed W.P.No. 19419/2004 before this Court for issuance of a
Mandamus, directing the NCTE to consider their application for grant of
recognition/approval to start a Teacher Training College. On consideration of
that matter, this Court on 12-7-2 004 directed the NCTE to follow the
judgement of the Supreme Court in 2003 3 SCC 321 and consider their
applications for recognition. Thereafter, the NCTE conducted an inspection
and after verifying the infrastructural facilities of the petitioner’s
college, issued orders on 07-09-2004, granting recognition to their college of
education known as Dhanalakshmi Srinivasan College of Education for a period
of one year from the academic year 2004-2005 with an annual intake of 100
students. They have got all the infrastructural facilities to start the
Teacher Training College in their campus and had also obtained
approval/recognition from the NCTE and what remained was only to get the
necessary affiliation; accordingly, they submitted an application for the
grant of affiliation to the Bharathidasan University on 9-9-2004 along with a
covering letter stating that they had complied with 100 % of the requirement
including permanent building, library, laboratory facilities, staff etc., as
per the NCTE norms and requested affiliation by enclosing a Demand Draft
towards the application fee. However, they received a reply from the
University on 23-9-2004, informing that the institution should approach the
University for affiliation after obtaining orders from the State Government
permitting them to establish a self-financing B.Ed., college in accordance
with the provisions of the University Act and the Tamil Nadu Private Colleges
( Regulation) Act. The said order declining to consider and grant affiliation
to their college is illegal, contrary to law laid down by the Supreme Court.
In these circumstances, having no other remedy, the petitioner filed the said
writ petition before this Court, and the same was taken up for hearing along
with other writ petitions filed by other similarly placed educational
institutions. By a common order dated 2 5-11-2004, the learned Single Judge,
after holding that the insistence of NOC from the State Government by the
universities for establishing teacher training college is totally
unsustainable, allowed all the writ petitions filed by the Educational
Institutions and directed the Universities to consider each of the
applications submitted by the Institutions for grant of affiliation without
reference to the prior permission from the State Government. Questioning the
same, the Universities and the State Government have preferred the above Writ
Appeals.
3. Heard Mr. R. Muthukumarasamy, learned Additional Advocate General, for
the State and for University of Madras and Periyar University, Salem; Mr. P.
Subbaya, learned counsel for Bharathidasan University; Mr. P. Jothimani,
learned counsel for Madurai University; Mr. R. Krishnamoorthy, learned
senior counsel for Dhanalakshmi Srinivasan Educational and Charitable Trust;
Mr. K. Chandru, learned senior counsel for Kasthuriba Gandhi College of
Education and Parasakthi College of Education; Mr. N. Paul Vasanthakumar,
for M.A.S. Subbiah Chettiar Educational and Charitable Trust and for Madras
Education and Research Integrated Trust; Mr. S. Udayakumar, learned Senior
Central Government standing counsel for NCTE.
4. The main contentions put-forward by the learned Additional Advocate
General appearing for the State and some of the Universities and the learned
counsel for other Universities are as follows:
i) Neither the NCTE Act nor the National Council for Teacher Education
Regulations, 2002 deal with the approval to the establishment of a college.
Sections 14 and 15 of the NCTE Act only deal with recognition of the Teacher
Training course in a new institution or in an existing institution; hence the
NCTE Act cannot be said to cover the entire field relating to Teacher
Education in colleges and consequently the State Enactment dealing with the
permission to establish the College would continue to be valid.
ii) The provisions contained in All India Council for Technical Education Act,
1987 (“AICTE Act” in short) and the Indian Medical Council Act, 1956 are
comprehensive and cover the area of establishment of colleges as well.
Similarly the Supreme Court, in Adhiyaman College of Engineering case [1995
(4) SCC 104] relating to AICTE Act and Thirumuruga Kripananda Variar’s case
[1996 (3) SCC 15] relating to establishment of medical colleges, found that
those Acts occupy the whole field. However, Sections 14 and 15 of NCTE Act
deals only with recognition of the course or the institution and does not deal
with the establishment of a college. In such a circumstance, the findings of
the learned Single Judge that the provisions of the AICTE Act or the Indian
Medical Council Act are in pari materia with the NCTE Act and that therefore,
the directions of the Supreme Court in the above cases would apply to NCTE Act
also, may not be correct and requires to be set aside.
iii) The concept of establishment of a new college and permission or approval
thereof is not covered by the Central Act. The Central Act which confines
itself to recognition of the course cannot be said to cover the entire field
and hence the State Enactments dealing with permission for the establishment
of a college or institution would still survive.
iv) The provision dealing with permission and approval for establishment and
recognition of colleges (higher education) would be matters referable to entry
25 of list III and, therefore, the State Government is well within their
powers. The contrary conclusion arrived by the learned Single Judge is liable
to be set aside.
5. The main submission of the various educational institutions made through
their counsel are as follows:
(i) Since Sections 14 and 15 of NCTE Act are similar to the one contained in
Section 10 (k) of AICTE Act or 10-A of the Indian Medical Council Act, the
judgements of the Supreme Court in Jaya Gokul’s case and Thirumuruga
Kirubananda Variar’s case (cited supra) would clearly apply to the NCTE Act
and therefore, the findings of the learned Single Judge should be confirmed.
(ii) The intention of the Parliament in enacting the NCTE Act is clear to the
effect that the entire field relating to teacher education is covered by the
Central Act and, therefore, the State Enactments would become void and
redundant.
(iii) Notwithstanding different terminology that has been used, the substance
of the same is acceptance of the institution by the appropriate authority
which would be sufficient to hold that Central Act covers the entire field
relating to teacher education, thereby resulting in the said Act would become
void.
(iv) The NCTE Act is referable to Entry 66 of List 1 of the VII Schedule to
the Constitution and, therefore, the State Enactments requiring permission
would be void.
(v) Section 14 (6) of the NCTE Act would make it clear that after granting
recognition under Section 14 (3), it is incumbent on the Examining Body, which
is the University, to grant affiliation which would go to show that no other
permission or approval is contemplated by the Act.
6. We have considered the materials placed, relevant provisions of NCTE Act
and corresponding provisions in AICTE Act, The Indian Medical Council Act,
1956 and the common order of the learned Single Judge as well as the rival
contentions.
7. Before considering the submissions made on either side, it would be useful
to refer the relevant provisions of the NCTE Act.
“Section 2 (d) “examining body” means a University, agency or authority to
which an institution is affiliated for conducting examinations in teacher
education qualifications;
Section 2 (e) “institution” means an institution which offers courses or
training in teacher education;
Section 2 (i) “recognised institution” means an institution recognised by the
Council under section 14.
Section 2 (j) “Regional Committee” means a committee established under section
20;
Section 2 (l) “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;
Chapter IV of the Act deals with recognition of teacher education
institutions.
Section 14. Recognition of institutions offering course or training in
teacher education.- (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 xx xx xx
(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 xx xx
(4) Every order granting or refusing recognition to an institution for a
course or training in teacher education under subsection (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.”
Section 15 speaks about permission for a new course or training by recognised
institution which we are not concerned in these appeals.
“Section 16. Affiliation body to grant affiliation after recognition or
permission by the Council.- Notwithstanding anything contained in any other
law for the time being in force, no examining body shall, on or after the
appointed day,-
(a) grant affiliation, whether provisional or otherwise, to any institution,
or
(b) hold examination, whether provisional or otherwise, for a course or
training conducted by a recognised institution,
unless the institution concerned has obtained recognition from the Regional
Committee concerned, under section 14 or permission for a course or training
under section 15.”
Section 18 enables a person aggrieved by an order made under section 14 or
section 15 or section 17 of the Act to prefer an appeal to the Council.
Section 20 refers to establishment of Regional Committees and composition. In
exercise of the powers conferred under clauses (f) and (g) of sub-section (2)
of Section 32 read with Sections 14 and 15 of the NCTE Act, 1993 73 of 1993),
the National Council for Teacher Education has framed Regulations called The
National Council for Teacher Education Regulations, 2002 (“Regulations, 2002”
in short). Among the Regulations, we are concerned with Regulation 6 (i):
“Regulation 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 Certificate
(NOC) from the State or Union Territory in which the institution is located.”
8. Since the main argument advanced on behalf of the educational institutions
was on the basis of the decisions of the Supreme Court dealing with in AICTE
Act and the Indian Medical Council Act,1956, it would also be useful to refer
the relevant provisions of the said Acts. Section 10 (1)(k) of the AICTE Act
runs as follows:
“Section 10. Functions of the Council.- (1) It shall be the duty of the
Council to take all such steps as it may think fit for ensuring co-ordinated
and integrated development of technical education and maintenance of standards
and for the purposes of performing its functions under this Act, the Council
may,-
(a) xx xx
(k) grant approval for starting new technical institutions and for
introduction of new courses or programmes in consultation with the agencies
concerned;
Section 10-A of The Indian Medical Council Act, 1956 runs as follows:
“Section 10-A. Permission for establishment of new medical college, new
course of study, etc.- (1) Notwithstanding anything contained in this Act or
any other law for the time being in force-
(a) no person shall establish a medical college; or
(b) no medical college shall-
(i) open a new or higher course of study or training (including a
post-graduate course of study or training) which would enable a student of
such course or training to qualify himself for the award of any recognised
medical qualification; or
(ii) increase its admission capacity in any course of study or training
(including a post-graduate course of study or training).
except with the previous permissions of the Central Government obtained in
accordance with the provisions of this section.”
9. It would also be useful to refer the relevant provisions from the Tamil
Nadu Private Colleges (Regulation) Act, 1976 wherein the word ‘Private
college’ is defined as:
“Section 2 (8) “private college” means a college maintained by an educational
agency and approved by, or affiliated to, a university but does not include a
college.”
(a) established or administered or maintained by the Central Government or the
Government or any local authority or any university; or
(b) giving, providing or imparting religious instruction alone, but not any
other instructions;”
As per Section 3 of the Act, no person shall without the permission of the
Government and except in accordance with the terms and conditions specified in
such permission, establish, on or after the date of commencement of the Act,
any private college. In addition to the same, the private college has to
obtain necessary affiliation from the University concerned. Section 4 (1)
mandates that educational agency of every private college proposed to be
established on or after the date of commencement of the Act shall make an
application to the Government for permission to establish such college.
Sub-section (2) of Section 4 prescribes certain conditions to be fulfilled
before making an application for permission. Section 5 speaks about grant of
permission by the Government and Section 6 deals with permission to be granted
in certain cases. Rule 2 (b) of the Tamil Nadu Private Colleges ( Regulation)
Rules, 1976 defines the word “college” as follows;
“Section 2 (b) “College” means and includes Arts and Science College, Teachers
Training College, Physical Education College, Oriental College, School or
institute of Social Work and Music College maintained by the educational
agency and approved by, or affiliated to the University;
10. Apart from these provisions, reliance was placed on judgement of the
Supreme Court in (i) Adhiyaman College of Engineering case [1995 (4) SCC 104]
in respect of scope of the AICTE Act,(ii) Thirumuruga Kripanandavariar’s case
[1996 (3) SCC 15] in respect of the Indian Medical Council Act; and (iii) St.
Johns case [2003 (3 ) SCC 321].
11. Before going into the provisions of the NCTE Act, NCTE Rules, 1997 and
Regulations, 2002, let us consider the decisions of the Supreme Court in the
above referred three cases. In State of Tamil Nadu v. Adhiyaman Educational
and Research Institute [(1995 ) 4 Supreme Court Cases 104], while dealing with
the provisions of AICTE Act, Tamil Nadu Private Colleges (Regulation) Act and
Rules and Madras University Act with reference to legislative competence of
the State and Central Government, Their Lordships have held: (para 30 and 41)
“Para 30……Thus, so far as these matters are concerned, in the case of the
institutes imparting technical education, it is not the University Act and the
University but it is the Central Act and the Council created under it which
will have the jurisdiction. To that extent, after coming into operation of
the Central Act, the provisions of the University Act will be deemed to have
become unenforceable in case of technical colleges like the engineering
colleges. As has been pointed out earlier, the Central Act has been enacted
by Parliament under Entry 66 of List I to coordinate and determine the
standards of technical institutions as well as under Entry 25 of List III.
The provisions of the University Act regarding affiliation of technical
colleges like the engineering colleges and the conditions for grant and
continuation of such affiliation by the University shall, however, remain
operative but the conditions that are prescribed by the University for grant
and continuance of affiliation will have to be in conformity with the norms
and guidelines prescribed by the Council in respect of matters entrusted to it
under Section 10 of the Central Act.
xx xx
Para 41. What emerges from the above discussion is as follows:
(i) xx xx
(ii) To the extent that the State legislation is in conflict with the Central
legislation though the former is purported to have been made under Entry 25 of
the Concurrent List but in effect encroaches upon legislation including
subordinate legislation made by the Centre under Entry 25 of the Concurrent
List or to give effect to Entry 66 of the Union List, it would be void and
inoperative.
(iii) xx xx
(iv) Whether the State law encroaches upon Entry 66 of the Union List or is
repugnant to the law made by the Centre under Entry 25 of the Concurrent list,
will have to be determined by the examination of the two laws and will depend
upon the facts of each case.”
12. In Thirumuruga Kirupananda Variyar Thavathiru Sundaraswamigal Medical
Educational and Charitable Trust v. State of Tamil Nadu [(1996) 3 Supreme
Court Cases 15], the Supreme Court had an occasion to consider the provisions
of the Indian Medical Council Act, 1 956 (Central Act) and Dr. M.G.R.
Medical University, Tamil Nadu Act (State Act). The appeals filed by
Thirumuruga Kirupananda Variyar Thavathiru Sundaraswamigal Medical Educational
and Charitable Trust (” Trust’ in short) relate to the establishment of a
medical college at Salem in the State of Tamil Nadu. The Tamil Nadu State
legislature had enacted Dr. M.G.R. Medical University, Tamil Nadu (Amendment
and Validation) Act, 1989 on 6-7-90. By the said Act which was brought into
force with effect from 24-9-1987, a Proviso was inserted in subsection (5) of
Section 5 of the Medical University Act whereby it was prescribed that “no
college shall be affiliated to the University unless the permission of the
Government to establish such college has been obtained and the terms and
conditions, if any, of such permission have been complied with”. Similarly, a
proviso was also inserted in sub-section (7) of Section 5 which prescribes
that “no institution shall be approved by the University unless the permission
of the Government to establish such institution has been obtained and the
terms and conditions, if any, of such permission have been complied with”.
The University, after conducting a joint inspection, rejected the application
for affiliation submitted by the Trust. The said order was challenged by way
of writ petition and a learned Single Judge of this Court, by judgement dated
7-2-92, quashed the said order of the University and remitted back to the
University for re-consideration. Feeling aggrieved by the judgement of the
learned Single Judge, the State filed an appeal before a Division Bench of
this Court. The Trust also filed an appeal against the said judgement of the
learned Single Judge. During the pendency of both these appeals, the
President of India promulgated the Indian Medical Council (Amendment)
Ordinance ( Ordinance No.13 of 1992) on 27-8-92. The said Ordinance was
subsequently replaced by the Indian Medical Council (Amendment) Act, 1993 (
Central Act No.31 of 1993) which was brought into force with effect from 2
7-8-92. By the Central Act, Sections 10-A, 10-B and 10-C were inserted in the
Indian Medical Council Act, 1956. Section 10-A deals with the establishment
of a new medical college or opening of a new or higher course of study or
training and prescribes that this can be done only with the previous
permission of the Central Government obtained in accordance with the
provisions of the said section. In view of the said amendments, the Central
Government was impleaded as a party in the writ appeals which were pending
before the Division Bench of this Court. The stand of the Central Government
was that after the promulgation of Ordinance No.13 of 1992, which was later on
replaced by the Central Act, the Central Legislation has occupied the entire
field and the State Legislation must be treated to have been rendered
inoperative and, as a result, the approval of the State Government was no
longer necessary for establishing a medical college as required under proviso
to sub-section (5) of Section 5 of the Medical University Act. The Division
Bench after holding that the amendment introduced in clause (5) of the Medical
University Act by the State Act was not, in any way, affected by the Central
Legislation and that after even after insertion of Section 10-A in the Indian
Medical Council Act, 1956 prior permission of the State Government was
required for establishing a medical college, allowed the writ appeal filed by
the State Government and dismissed the writ appeal filed by the Trust.
Questioning the same, the Trust has filed appeal to the Supreme Court. After
considering the legislative power in respect of education with reference to
various Entries in List provided in the Constitution and after considering the
Medical University Act-State Act and the Indian Medical Council Act (Central
Act), concluded thus: (para 31)
“Para 31. It would thus appear that in Section 10-A Parliament has made a
complete and exhaustive provision covering the entire field for establishing
of new medical colleges in the country. No further scope is left for the
operation of the State Legislation in the said field which is fully covered by
the law made by Parliament. Applying the tests laid down by this Court, it
must be held that the proviso to sub-section (5) of Section 5 of the Medical
University Act which was inserted by the State Act requiring prior permission
of the State Government for establishing a college is repugnant to Section
10-A inserted in the Indian Medical Council Act, 1956 by the Central Act which
prescribes the conditions for establishing a new medical college in the
country. The said repugnancy is, however, confined to the field covered by
Section 10-A, viz., establishment of a new medical college and would not
extend to establishment of other colleges.”
13. In Jaya Gokul Educational Trust v. Commissioner and secretary to
Government, Higher Education Department [(2000) 5 Supreme Court Cases 231],
the appellant is a Trust which wanted to establish a self-financing
engineering college and submitted an application during 1994-95 to University
of Kerala as well as to AICTE. Ultimately, the Government refused to give
permission by their letter dated 16-8-1996. Thereafter, the appellant filed a
writ petition before the Kerala High Court for quashing the said order of the
Government and for a direction to sanction and establish an engineering
college. The learned Single Judge of the kerala high Court, by his judgement
dated 14-1-1997, allowed the writ petition and directed Mahatma Gandhi
University to consider the appellant’s application for permanent affiliation
without reference to the letter of the Government. Against the said judgement
of the learned Single Judge, the Government filed a writ appeal. The Division
Bench of the kerala High Court allowed the appeal and set aside the order of
the Single Judge and dismissed the writ petition. As against the judgement of
the Division Bench, the Jaya Gokul Educational Trust has filed an appeal
before the Supreme Court. After considering the decision in Adhiyaman
Educational and Research Institute case (1995) 4 SCC 104 and the provisions of
AICTE Act, particularly Section 10 (k), Their Lordships have held: (para 17,
23, 28)
“Para 17. We shall now refer to the relevant paras of the above judgment
dealing with the question of “approval” for establishing technical
institutions under section 10 (k) of the AICTE Act. The Tamil Nadu Rules of
1976 made under the 1976 Act had no doubt excluded technical institutions from
the purview of the Rules but this Court pointed out that the Rules were
capable of being amended so as to extend to such technical institutions and
that if they were so extended, the State Act of 1976 and the Rules would
require “approval” by the State Government and that would be void. It was
stated (in SCC p.124, para 27) that inasmuch as the State Act
“will overlap and will be in conflict with the provisions of the Central Act
in various areas….,granting approval for starting new technical
institutions…,inspection of technical institutions… which matters are
covered by the Central Act”.
This Court then referred to the Madras University Act, 1923. It was held (SCC
p.126) that Section 10 of the Central Act dealt with various matters
(including granting approval for starting new technical institutions), and
that so far as these matters were concerned
“it is not the University Act and the University but it is the Central Act and
the Council created under it which will have the jurisdiction. To that
extent, after the coming into operation of the Central Act, the provisions of
the University Act will be deemed to have become unenforceable”. (SCC
pp.126-27, para 30)
Thus, in the two passages set out above, this Court clearly held that because
of Section 10(k) of the Central Act which vested the powers of granting
approval in the Council, the T.N. Act of 1976 and the University Act, 1923
could not deal with any questions of “approval” for establishment of technical
institutions. All that was necessary was that under the Regulations, the
AICTE Council had to consult them.”
“Para 23. Thus we hold, in the present case that there was no statutory
requirement for obtaining the approval of the State Government and even if
there was one, it would have been repugnant to the AICTE Act. The University
Statute 9(7) merely required that the “views” of the State Government be
obtained before granting affiliation and this did not amount to obtaining
“approval”. If the University statute required “approval”, it would have been
repugnant to the AICTE Act….”
“Para 28….. Procedure and conditions for affiliation could not be
inconsistent with the provisions of the Central Act, in particular Section
10(k) of the Regulation, and the University could not seek approval of the
Government. The University was also one of the agencies consulted by the
council of AICTE under Regulation 8. Once that was over, and approval was
granted by AICTE, if there was any default on the part of the College in
compliance with the conditions of approval, the only remedy for the University
was to bring those facts to the notice of AICTE so that the latter could take
appropriate action.”
14. As stated earlier, there were two sets of writ petitions, the first set
is to quash the orders of the Universities concerned and to direct the
Universities to consider their applications for affiliation without insisting
upon the orders/permission from the State Government and the second set is for
a Mandamus directing the Universities to consider their applications for
affiliation on merits. The main contentions of the respondents/writ
petitioners put-forward before the learned Single Judge were that after NCTE
Act has come into force, the provisions of the Tamil Nadu Private Colleges (
Regulation) Act, 1976 and the Statutes of the Universities which require
permission from the State Government to establish a college as a condition
precedent for the grant of affiliation would be inoperative. It was further
contended that the NCTE Act was a Parliamentary enactment and having regard to
the fact that the said enactment covered the entire field relating to teacher
education, the provisions in the State enactment like the Tamil Nadu Private
Colleges (Regulation) Act or the Statutes of the Universities which require
permission of the State Government to establish a college as a condition for
affiliation would be repugnant to the Central law and hence void and have no
effect.
15. Learned Additional Advocate General by highlighting the differences
between the AICTE Act and the Indian Medical Council Act as well as the NCTE
Act, vehemently contended that the provisions in Sections 14 and 15 of the
NCTE Act only deal with the recognition of Teacher Training course in a new
institution or in an existing institution. In other words, according to him,
NCTE Act and the Regulations deal with the norms and standards for teacher
education and the requirements for recognition of Teacher Training course. He
also contended that neither the Act nor the Regulation deal with the approval
to the establishment of a college. In such circumstances, according to him,
NCTE Act cannot be said to cover the entire field relating to teacher
education in colleges and consequently the State enactment dealing with the
permission to establish the College would continue to be valid.
16. Per contra, Mr. R. Krishnamoorthy and Mr. K. Chandru, learned senior
counsel appearing for the Institutions, advanced their argument that Sections
14 and 15 of the NCTE Act are similar to one contained in Section 10 (k) of
the AICTE Act or Section 10-A the Indian Medical Council Act, that in such a
circumstance, the judgement of the Supreme Court in Jaygokul case and
Thirumurua Kirupananda Variar’s case (cited supra) would clearly apply to the
NCTE Act and that, therefore, the finding and the ultimate conclusion of the
learned Judge are to be accepted.
A combined reading of the NCTE Act, more particularly Section 14 (6) read with
Section 16 would go to show that what is contemplated by the said Act is a
recognition for a new institution under Section 14, and additional course in
an existing institution under section 15, which is to be followed by
affiliation by the concerned University.
17. We also perused the different terminology or words like “permission”
“approval” “recognition” are used in the different provisions, the content of
all the provisions is the same. In other words, notwithstanding different
terminology that has been used, the substance of the same is acceptance of the
institution by the appropriate authority which would be sufficient to hold
that the Central Act covers the entire field relating to teacher education.
Though it is pointed out that while the AICTE Act and the Indian Medical
Council Act refer to the grant of permission or approval for the establishment
of a college, the provisions of the NCTE Act does not deal with the
establishment of a college but covers the area of recognition alone. In the
light of the provisions referred to above and the interpretation of the
Supreme Court with reference to the same, we reject the contention of the
learned Additional Advocate General and hold that the Central Act covers the
entire field of teacher education.
18. Now we shall consider the power to legislate on the subject of education.
Previously the said power was provided in Entry 11 of List II of Schedule VII
of Constitution of India. By virtue of 42nd Amendment of the Constitution
which was given effect to from 3-1-1977, the subject of education has been
classified as follows:
“Union list – list I – Entry 66
Co-ordination and determination of standards in institutions for higher
education or Research and Scientific and technical institutions.
Concurrent list – list III – Entry 25
Education including technical education, medical education and Universities,
subject to the provisions of Entries 63, 64, 65, and 66 of list 1; Vocational
and technical training of labour.”
From the above said re-classification of the legislative source of power on
the subject of education, it is seen that the Union of India is competent to
enact laws relating to higher education, technical institutions etc. The
Supreme Court of India in interpreting the said Entries, has categorically
held that there can be no State enactment repugnant to the law enacted by the
Parliament and that the provisions contained in any of the State enactment
such as Tamil Nadu Private Colleges Act, Madras University Act etc., which are
inconsistent to the provisions contained in any of the Central Acts such as
AICTE Act, MCI Act, Dentist Act etc., are ultra vires to that extent of
repugnancy. Useful reliance was also placed on the same judgements in
Adhiyaman college case; Thirumuruga Kirupananda Variar’s case; and Jaya
Gokul’s case which are in the following effect:-
(1) 1995 (4) SCC 104. In this decision it has been categorically held that
neither the State Government nor the University have got power to enact law on
the subject falls under Entry 66 of List I and that the existing law to the
extent of inconsistent with the provisions made in the AICTE Act is ultra
vires and unenforceable.
(2) 1996 (3) SCC 15. In this decision the Supreme Court has held that prior
permission of State Government to start a new Medical College is invalid on
the ground of repugnancy. It is further held that Section 5 (5) of the
Medical University Act enacted by the State Act is held as repugnant to
Section 10-A of Indian Medical Council Act.
(3) 2000 (5) SCC 231. By re-capsulating the dictum laid down in Adhiyaman’s
case, the Supreme Court specifically ruled that the University cannot impose
conditions for affiliation in contravention of the provisions contained in the
Central Act viz., AICTE Act. Thus, the position of law and the validity of
existing law of the State Enactments have been made crystal clear in the above
stated judgements of the Supreme Court.
19. The Teacher Training Institution (B.Ed., course) is referable to Entry 66
of List I and as such the Parliament promulgated the NCTE Act 1993 which came
into force with effect from 1-7-19 95. The NCTE framed Regulations 2002 in
exercise of power under Sections 14, 15 and 32 of NCTE Act. In this regard,
it is also relevant to note the preamble of the NCTE Act which runs as
follows:
“An Act to provide for the establishment of a National Council for Teacher
Education 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
matter connected therewith.”
We have already referred to the Entry 66 of List I which is a Union list. The
preamble of the NCTE Act reflects the said Entry i.e., Entry 66 of List I.
The provisions contained in the NCTE Act and the Regulations made thereunder
regulate the establishment and administer the Teacher Training Institutes. We
have already referred to the various provisions of the NCTE Act. Adequate
provisions were made in regard to granting of recognition to start a Teacher
Training Institute and to grant affiliation by examining body.
20. It is the submission of Mr. K. Chandru, learned senior counsel
appearing for some of the Institutions that the NCTE Act is referable to Entry
66 of List 1 of the VII Schedule to the Constitution and, therefore, the State
Enactments requiring permission would be void. A reference was made to a
judgement of the Supreme Court in Osmania University Teachers’ Association v.
State of Andhra Pradesh, reported in 1987 4 SCC 671. The said decision
relates to question as to the constitutional validity of the Andhra Pradesh
Commissionerate of Higher Education Act, 1986. The question that was posed
before the Supreme Court is whether the enactment falls within Entry 66 List I
or Entry 25 List III – Concurrent List of the Seventh Schedule to the
Constitution. The High Court of Andhra Pradesh has upheld its validity by
holding that the Act falls under the latter entry, but granted a certificate
for leave to appeal to the Supreme Court. After considering various
provisions therein and Entry 66 of List I as well as Entry 25 of List III,
Their Lordships have concluded thus: (para 13, 14 and 15)
“13. Till January 3, 1977, education was a State subject under Entry 11 in
List II. By the Forty-second Amendment Act, 1976, Entry 11 was deleted and it
was placed in the Concurrent List by enlarging the Entry 25, as set out above.
14. Entry 25 List III relating to education including technical education,
medical education and universities has been made subject to the power of
Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and
Entry 25 List III should, therefore, be read together. Entry 66 gives power
to Union to see that a required standard of higher education in the country is
maintained. The standard of Higher Education including scientific and
technical should not be lowered at the hands of any particular State or
States. Secondly, it is the exclusive responsibility of the Central
Government to coordinate and determine the standards for higher education.
That power includes the power to evaluate, harmonise and secure proper
relationship to any project of national importance. It is needless to state
that such a co-ordinate action in higher education with proper standards, is
of paramount importance to national progress. It is in this national
interest, the legislative field in regard to ‘education’ has been distributed
between List I and List III of the Seventh Schedule.
15. The Parliament has exclusive power to legislate with respect to matters
included in List I. The State has no power at all in regard to such matters.
If the State legislates on the subject falling within List I that will be
void, inoperative and unenforceable.”
In the light of the provisions in the NCTE Act which we have already referred
to, the above judgement of the Supreme Court [(1987) 4 SCC 6 71] is directly
on the point and the contention relating to want of State power with reference
to Entries in the Constitution is wellfounded.
21. It is not in dispute that the field relating to education was originally
in Entry 11 of List 2 and Entry 25 of List III. Entry 11 has been deleted and
its content transferred to entry 25 of list III. The said entry namely 25 is
subject to entry 63 to 66 of list 1 of the VII Schedule to the Constitution.
Entry 66 is the one dealing with co-ordination and determination of standards
in institution for higher education or research and scientific and technical
institutions. The provisions in the NCTE Act, which lays down standards in
teacher education or matters relating to co-ordination would be referable to
Article 66 of list I of the VII Schedule to the Constitution. Though learned
Additional Advocate General would submit that it is incorrect to assume that
all the provisions in the entire Act is referable to Entry 66 of list 1 and no
part of it is referable to entry 25 of list 3 and major portions of the NCTE
Act would be referable to entry 25 of list 3 while only those portions dealing
with standards of teacher education would be referable to entry 66 of list 1,
in the light of the earlier discussion and the conclusion of the Supreme Court
in Osmania University Teachers’ Association case (cites supra), we are unable
to accept the argument of the learned Additional Advocate General. The entire
case of the writ petitioners-various educational institutions is based on the
allegations that the Central Act which had been enacted, later has rendered
the earlier State Act repugnant and void in terms of Article 254 of the
Constitution. Though learned Additional Advocate General distinguishes the
judgement in Osmania University Teachers’ Association case, on the ground that
the said Act was passed by the Andhra Pradesh Legislature which is similar to
the UGC Act (a Parliamentary Act) and hence the Supreme Court in the aforesaid
case held that State Legislature was incompetent to pass the law as the
provisions of law was referable to entry 66 of list I, in the light of our
earlier discussion and the provisions of the NCTE Act including the preamble
etc., and as interpreted in Osmania University Teachers’ Association case, we
are unable to accept the argument of the learned Additional Advocate General.
Further, as observed by the Supreme Court, if a subject of legislation is
covered by items 63 to 66 even if it otherwise falls within the larger field
of “education including Universities” power to legislate on that subject must
lie with the Parliament. At the end, the Supreme Court has held: (para 26)
“26. In Prem Chand Jain v. R.K. Chhabra [(1984) 2 SCR 883] this Court has
held that the UGC Act falls under Entry 66 of List I. It is then unthinkable
as to how the State could pass a parallel enactment under Entry 25 of List
III, unless it encroaches Entry 66 of List I. Such an encroachment is patent
and obvious. The Commissionerate Act is beyond the legislative competence of
the State legislature and is hereby declared void and inoperative.”
The said decision is applicable to the facts of the cases on hand in all
fours.
22. Now we shall consider the functions of the Council (NCTE Act),
recognition of the institutions offering courses or training in teacher
education, affiliating body to grant affiliation after recognition or
permission by the council, regional committees, requirement of NOC from the
State Government/Union territory administration from NCTE Act. Section 12 (a)
of NCTE Act undertakes surveys and studies relating to various aspects of
teacher education and publish the result thereof. Section 12 (b) makes
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. Section 12
(c) co-ordinates and monitors teacher education and its development in the
country. Section 12 (e) lays down norms for any specified category of courses
or training 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. Section 12 (1) formulates
schemes for various levels of teacher education and identify recognized
institutions and set up new institutions for teacher development programmes.
Section 14 speaks about recognition of institutions offering course or
training in teacher education and Section 16 relates to affiliating body to
grant affiliation after recognition or permission by the Council. Another
important thing which was brought to our notice in the NCTE Act is Section 20
which speaks about Regional Committees. As per Section 20 (3), the Regional
Committee shall consist of the following members, namely:-
a)a Member to be nominated by the Council;
b)one representative from each of the State
and the Union territories of the region,
to be nominated by the respective States
and the Union territories;
c)such number of persons, having special
knowledge and experience in matters
relating to teacher education, as may be
determined by regulations.
As rightly pointed out by the learned senior counsel appearing for the
institutions, though it is stated that the State Government alone is competent
to consider the need and the demand of the teacher education, employment
potentialities etc., in view of the fact that the Regional Committee comprises
a representative from the State and Union territory. As rightly stated those
factors can be very well projected before the Regional committee through a
representative of a State/ Union territory. We have already referred to the
NCTE Regulation, 2002 . Among the Regulations, Regulation 6 is relevant which
speaks about requirement of NOC from the State Government/Union territory
administration. As per Section 9, the Regional Committee, before passing an
order for grant of recognition/permission under section 14 or section 15 of
the Act, shall satisfy itself, on the basis of scrutiny and verification of
facts as contained in the application for recognition/grant of permission
and/or inspection of the institution, where considered necessary or any other
manner deemed fit, that the institution fulfils the Norms and Standards laid
down for the relevant teacher education course as given in the Appendices 3 to
14 of these Regulations. As per Section 9 of the Act, the Regional Committee
shall satisfy itself, on the basis of scrutiny and verification of facts as
contained in the application for recognition/grant of permission and/or
inspection of the institution, where considered necessary or any other manner
deemed fit, that the institution fulfils the norms and standards laid down for
the relevant teacher education course as given in the Appendices 3 to 14 of
these Regulations. As rightly pointed out by the counsel for the
institutions, a combined reading of the above said provisions of the NCTE Act
make it clear that the Regional Committee constituted under section 20
includes representatives of the State Government also and is competent to
deliberate on the financial resources, requisite infra-structural and
instructional facilities and such other particulars including the need for
starting of institutions etc., while granting recognition.
23. In so far as the condition as to NOC from the State Government to get
recognition from the NCTE, as stipulated in Regulation 6 of NCTE Regulations,
2002 is concerned, learned senior counsel appearing for the institutions very
much relied on a judgement of the Supreme Court rendered in St. John’s
Teacher Training Institute v. Regional Director, reported in (2003) 3 Supreme
Court cases 321. The said case arose under the very same provisions, namely,
NCTE Act. When the appellant/St. Johns Teacher Training Institute made an
application to the Regional Director, National Council for Teacher Education
(Southern Committee), Bangalore seeking permission for starting a course in
elementary education training in the year 1999-2000, the respondents therein
replied that in the absence of a no-objection certificate from the State
Government, the application would be treated as incomplete and would not be
considered. The appellant unsuccessfully challenged before the Karnataka High
Court the vires of Regulations 5 (e) and (f) of the National Council for
Teacher Education Regulations, 1995 in so far as they direct obtaining of an
NOC from the State Government. The connected writ petition filed under
Article 32 also sought similar reliefs. It was contended before the Supreme
Court that the States are also vitally interested in education and especially
the professional courses. It was further stated that only the States which
could correctly assess and know the extent of requirement of trained manpower
and the supply of trained teachers keeping in view retirements, change of
occupation etc. It was also put-forward before the Supreme Court that the
State Governments would also keep a track of the number of trained teachers
registered with the employment exchanges awaiting employment and the
possibility of their deployment in the near future. While considering the
above contentions, Their Lordships have held as follows:- (para 19)
“19. 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 State Government or Union Territory concerned 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 of
refusal of an 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.”
It is clear from the above decision that even if NOC is not granted by the
State Government or Union Territory concerned and the same is refused, it is
for the Regional Committee to take a decision on the application for
recognition irrespective of the decision of the State Government or Union
Territory. The above decision also makes it clear that the Regional Committee
is empowered to consider the claim for recognition even in a case where the
state Government has refused to NOC. In view of the said position of law as
stated supra, if this Regional Committee is satisfied with regard to the
fulfilment of requirements for grant of recognition, it is the duty of the
examining body, namely, Universities to grant affiliation without insisting
upon the institutions to produce the prior permission of the State Government.
Inasmuch as the Universities passed orders requiring the education
institutions to get prior permission of the State Government based on the
resolution of their Syndicate in accordance with their respective University
Act and Statutes and Tamil Nadu Private Colleges ( Regulation) Act is illegal
and contrary to the law laid down by the Supreme Court of India.
24. To sum up the sum and substance of the contentions raised by the Writ
Appellants i.e., State of Tamil Nadu and Universities is that the insistence
of prior permission from the State Government for granting affiliation is
justified in terms of Section 2 (b) read with Section 7 of Tamil Nadu Private
Colleges (Regulation) Act and the Statutes framed under concerned University
Act inasmuch as the same has not been covered under the Central Act, namely,
NCTE Act. The said claim is liable to be dismissed in view of the settled
position of law as declared by the Supreme Court in Adhiyaman College case
(1995 (4) SCC 104), Thirumuruga Kirubananda Variyar’s case (1996 (3) SCC 15),
and Jaya Gokul’s case (2000 (5) SCC 231) inasmuch as the very same issue of
power to stipulate condition for affiliation, disaffiliation were the subject
matter of those decisions. In para 28 of Jaya Gokul’s case (cited supra), it
has been specifically held that procedure and conditions for affiliation could
not be inconsistent with the provisions of the Central Act, in particular
Section 10-(k) of the AICTE Act and the University could not seek approval of
the Government. A combined reading of Sections 14 (4), 14 (6) read with
Section 16 of the NCTE Act obligated the affiliating body to grant affiliation
on receiving information as to recognition of an institution from the NCTE and
thus leave no discretion to affiliating body to stipulate any more condition
especially condition of imposing prior permission of the State Government
which would render the order of recognition as ineffective. The scheme of the
NCTE Act and the Regulations made thereunder as has been interpreted the
various provisions of the NCTE Act and the Regulations made thereunder as held
by the Supreme Court in St. John’s Case (2003 (3) SCC 321) wherein it was
held that the Regional Committee of NCTE is empowered to consider the claim
for recognition independently notwithstanding the refusal of NOC by the State
Government. Once the recognising body held that the refusal of NOC by the
State Government would not stand in the way of granting recognition, it would
be ex-facie illegal to insist very same rigour condition for granting of
affiliation by one of the agencies, namely, Universities under the NCTE Act.
We are satisfied that the NCTE Act contained enough provisions pertaining to
granting of affiliation and that the action of the Writ Appellant University
in imposing a precondition of prior permission from the State Government as
indicated in the impugned order constitutes error of law, arbitrary and
opposed to the object and scheme of the NCTE Act besides being opposed to the
law declared by the Supreme Court. As explained earlier, the provisions
contained in Sections 14 (4); 14 (6) and 16 of the NCTE Act is wider in scope
than Section 10(k) of AICTE Act and Section 10-A of Indian Medical Council Act
inasmuch as the NCTE Act takes in its fold the matter of granting affiliation.
Further, the NCTE Act contains adequate provisions as regards granting of
affiliation as automatic one in respect of institutions which have been
granted with recognition by the NCTE. Hence, the contention of the writ
appellants that the provisions of the State Enactment is only a supplemental
and not supplant to the Central Act cannot be accepted. The contention that
NCTE Act deals with recognition only and not establishment of institution
etc., have no substance for the reasons stated supra as also on the ground
that the word, ‘recognition’ as employed in NCTE Act and ‘approval’ as
mentioned in Section 10(k) of the AICTE Act and 10-A of the Indian Medical
Council Act would give the same meaning in legal parlance having regard to the
object of those provisions contained in the respective enactment. The
argument that Rule 2 (b) of the Tamil Nadu Private Colleges (Regulation) Act
includes teacher training colleges and hence, the impugned condition is
justified is liable to be rejected on the grounds that Rule cannot over-ride
the provisions of the Act and that the State cannot enact law repugnant to the
provisions contained in the Central Act as has been repeatedly held by the
Supreme Court of India. As rightly pointed out, the University is one of the
agencies under the NCTE Act and is obligated to grant affiliation on receipt
of order of recognition in respect of any technical institution in terms of
Section 14 (4) read with Section 14 (6) of the NCTE Act. Though it is stated
that the function of granting affiliation is legislative in nature and the
same cannot be abdicated to outside agency. In the instant case, a perusal of
the impugned order discloses that the same came to be passed on the basis of
the resolution of the Syndicate which in turn rely on the provisions contained
in the Tamil Nadu Private Colleges (Regulation) Act ignoring the express
provisions viz., Sections 14 (4)l 14 (6) of the NCTE Act.
25. Before winding up, as pointed out by the Government and the Universities,
it is to be noted that in so far as the State of Tamil Nadu is concerned,
there is a large body of trained teachers languishing without job
opportunities having registered themselves with various employment exchanges.
It is also their grievance that taking advantage of these private educational
institutions are exploiting the situation by offering jobs on temporary basis
endlessly without any hope of regularisation for meagre remuneration which the
already starved trained teachers accept in order to keep their body and soul
together. This in effect sets at naught the very purpose of maintaining
standards in teacher education for which purpose alone the NCTE has been
established. Some of the appellants-Universities have placed before us
various orders of this Court giving directions for implementation of the UGC
scales to the teaching staff which has been consistently denied by the
managements of the concerned institutions on the apparent ground that college
teachers do not deserve UGC scales as they do not possess prescribed
qualification and that the appointments are purely temporary, which are
against the judgement of this Court as well as the Supreme Court. The worst
exploited lot are the school teachers. In view of the above, we hope and
trust the Regional Committee (constituted under Section 20 of the NCTE Act)
wherein one person is representing the State and Union Territory, their
grievance/objections/suggestions have to be taken note of by the Regional
Committee before recognising any institution. Inasmuch as the responsibility
and burden lies on the State Government, the views of the State Government has
to be given importance by the Regional Committee while granting recognition of
teacher training institution.
Under these circumstances, we are in agreement with the conclusion arrived at
by the learned Single Judge and we do not find any merit in the Appeals filed
by the State Government and the Universities. Consequently, all the Appeals
are dismissed with the above observation. No costs. The connected
miscellaneous petitions are closed. In view of our conclusion, the respective
universities are directed to pass orders on the applications made by the
respective institutions within a period of two weeks from the date of receipt
of a copy of this Judgment.
R.B.
Index:- Yes.
Internet:- Yes.
To:-
1. The Secretary to Government,
Higher Education Department,
Fort St. George, Chennai-600 009.
2. The Regional Director,
National Council for Teacher
Education, C.S.D. Building,
HMT Post, Bangalore-560 031
3. The Director of College
Education, Chennai-600 006.