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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5884 OF 2009
Gyanodaya Shikshan Pracharak Samiti's ]
Gyanodaya B.Ed. College ]
through its Secretar/Trustee ]
a Public Trust registered under ]
Bombay Public Trust Act, 1950, ]
and a Society Registered under the ]
Society Registration Act, 1860 having its ]
office at Survey No.160/4, Post J K Gram ]
Savarkar Nagar, Dist. Thane 400 606
ig ].... Petitioners
versus
1] The State of Maharashtra ]
Through the Secretary ]
Higher Education Mantralaya, Mumbai ]
]
2] The Registrar, ]
Mumbai University, M G Road, Mumbai ]
]
3] The Regional Director, Western ]
Region Committee NCTE, ]
Manus Bhavan, Shamla Hill, Bhopal ].... Respondents.
ALONG WITH
WRIT PETITION NO.5886 OF 2009
1] Habib Educational & Welfare Society ]
a Society registered under the Societies ]
Registration Act, 1860 and a public trust ]
registered under the Bombay Public Trust ]
Act, 1950 having its office - Hissa No.2, ]
Khasra No.9, At post - Kausa, Mumbra ]
Thane 400 612, through its President ]
Shri Mohammed Shoeb Habibulla Khan ]
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2] Late Khatija College of Eudcation, ]
Hissa No.2, Khasra No.9, At post - Kausa, ]
Mumbra, Thane 400 612 ]..Petitioners
Versus
1] The State of Maharashtra ]
Through its Secretary, Higher & Technical ]
Department, Mantralaya, Mumbai ]
(to be served on learned Government Pleader ]
High Court, Bombay (A.S.) ]
]
2] The Registrar, ]
Mumbai University, M G Road, Mumbai ]
ig ]
3] The Regional Director, ]
National Council for Teacher Education ]
Western Regional Committee ]
Manus Bhavan, Shamla Hill, Bhopal, M.P ].... Respondents.
ALONG WITH
WRIT PETITION NO.5963 OF 2009
Shri Kanhaiyalal Maharaj Shaishanik & ]
Samajik Trust, Sainath Shikshanshastra ]
Mahavidyalaya (B.Ed. (M) College,) ]
Through the President / Trustee ]
registered under the Bombay Public Trust ]
Act, and also the society registered under the ]
Societies Registration Act, 1860 having their ]
office / college at Hotel Parth, Murlidhar ]
Complex, Gangaghat, Behind Panchavati ]
Dist Nashik ]...Petitioners
Versus
1] The State of Maharashtra ]
Through the Secretary, Higher Education ]
Mantralaya, Mumbai 32 ]
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2] The Registrar, ]
Pune University, Ganeshkhind, Pune 411 007 ]
]
3] The Regional Director, ]
National Council for Teacher Education ]
Western Regional Committee ]
Manus Bhavan, Shamla Hill, Bhopal, M.P ].... Respondents.
ALONGWITH
WRIT PETITION NO.5964 OF 2009
Bahuuddeshiya Samajik Gramin And ]
Shaikshanik Sanstha Shikshan ]
Shashra (B.Ed. (M) College,)
ig ]
Through the President / Trustee ]
registered under the Bombay Public Trust ]
Act, and also the society registered under the ]
Societies Registration Act, 1860 having their ]
office at Gat No.830, D.Ed. College, Abhona ]
(Nanduri Road), Tal. Kalwan, Dist Nashik ]...Petitioners
Versus
1] The State of Maharashtra ]
Through the Secretary, Higher Education ]
Mantralaya, Mumbai 32 ]
]
2] The Registrar, ]
Pune University, Ganeshkhind, Pune 411 007 ]
3] The Regional Director, ]
National Council for Teacher Education ]
Western Regional Committee ]
Manus Bhavan, Shamla Hill, Bhopal, M.P ].... Respondents.
ALONG WITH
WRIT PETITION NO.5975 OF 2009
Somnatharpan Shikshan Prasarak ]
Sanstha's (B.Ed. Women's College,) ]
Through the President / Trustee ]
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registered under the Bombay Public Trust ]
Act, and also the society registered under the ]
Societies Registration Act, 1860 having their ]
office / college at Plot No.746/1 and ]
Plot No.9 & 10 Khasra No.1144/314, Savda ]
Road, Raver, Dist Jalgaon ]
and also having address at Lock No.10, ]
Santoshi Mata Mandir Road, Suman Apt. ]
Kalyan Dist. Thane ]...Petitioners
Versus
1] The State of Maharashtra ]
Through the Secretary, Higher Education ]
Mantralaya, Mumbai 32
ig ]
]
2] The Registrar, ]
S.N.D.T. Women's University ]
1, Nathibai Thackersey Road, Mumbai - 20 ]
3] The Regional Director, ]
National Council for Teacher Education ]
Western Regional Committee ]
Manus Bhavan, Shamla Hill, Bhopal, M.P ].... Respondents.
ALONGWITH
WRIT PETITION NO.6108 OF 2009
Arihant Education Foundation's ]
Arihant College of Education (B.Ed. College,) ]
Through the President / Trustee ]
registered under the Bombay Public Trust ]
Act, and also the society registered under the ]
Societies Registration Act, 1860 having their ]
office / college at Plot No.569/1, D.P. Road ]
Todkar Complex, Bibavewadi, Kondhwa Road ]
and Parshwa Vihar, Vadgaon Budruk, ]
Near Suncity, Opp. Shahu Bank, Dist Pune ]...Petitioners
Versus
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1] The State of Maharashtra ]
Through the Secretary, Higher Education ]
Mantralaya, Mumbai 32 ]
2] The Registrar, ]
Pune University, Ganeshkhind, Pune 411 007 ]
3] The Regional Director, ]
National Council for Teacher Education ]
Western Regional Committee ]
Manus Bhavan, Shamla Hill, Bhopal, M.P ].... Respondents.
ALONGWITH
WRIT PETITION NO.6122 OF 2009
Samarath Shaikshanik Samajik & ]
Sanskurutik Pratishthan's Samarath ]
Shikshanshastra Mahavidyalaya ]
(B.Ed. (M) College,) ]
Through the President / Trustee ]
registered under the Bombay Public Trust ]
Act, and also the society registered under the ]
Societies Registration Act, 1860 having their ]
office at Dhule, Katkade Naghar, Satpur, ]
Tal. Nashik, Dist Nashik ]...Petitioners
Versus
1] The State of Maharashtra ]
Through the Secretary, Higher Education ]
Mantralaya, Mumbai 32 ]
]
2] The Registrar, ]
Pune University, Ganeshkhind, Pune 411 007 ]
3] The Regional Director, ]
National Council for Teacher Education ]
Western Regional Committee ]
Manus Bhavan, Shamla Hill, Bhopal, M.P ].... Respondents.
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Mr.R A Dada, Senior Advocate, along with Mr C K Thomas i/by M/s. C K
Thomas & Co. for the Petitioners in Writ Petition Nos.5884/09, 5963/09,
5964/09, 5975/09, 6108/09 and 6122/09.
Mr.Girish Kulkarni i/by Mr Sandeep Waghmare for the Petitioner in Writ
Petition No.5886 of 2009.
Mr. B V Phadnis a/w Mr R Rodrigues for the Respondent No.2 in Writ
Petition Nos.5884/09 and 5886/09
Mr. V P Malwankar, AGP, for the Respondent No.1.
Mr Rahul Matkari i/by Mrs.M G Kulkarni for Respondent No.2 in Writ
Petition Nos.5963/09, 5964/09, 5975/09, 6108/09 and 6122/09
Mr Uday Warunjikar for the NCTE.
CORAM : S B MHASE &
R M SAVANT, JJ.
DATE : 30th July 2009
JUDGMENT : PER R M SAVANT J.
1. Rule. Rule with the consent of the parties made returnable
forthwith. Heard the learned counsel for the parties.
2. The above Petitions have been filed against the 1st Respondent
seeking a direction to forthwith grant necessary permission and affiliation
to the Petitioners to start B.Ed. Colleges for conducting the B.Ed. Course
to the Petitioners, who are having Recognition Certificates from the
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NCTE. Since the above Petitions involve common question, they are
heard and decided together. For the sake of convenience the facts in Writ
Petition No.5886 of 2009 would be referred to.
3. The Petitioner No.1 in the said Writ Petition No.5886 of 2009
is a society registered under the Societies Registration Act, 1860 and also
a trust registered under the Bombay Public Trust Act, 1950. The
Petitioner No.1 claims to run several schools, high schools, arts, sicence,
commerce college, including professional colleges such as BAMS, B.SC.
I.T. The Petitioner No.1 claims to be a minority institution being
dedicated to the welfare of minority sector. The Petitioner No.1 applied
to the Respondent No.3 for grant of Recognition Certificate to start B.Ed
course with annual intake of 100 candidates from the year 2009-2010.
The Petitioners claim to have complete infrastructure for starting the said
course in the Petitioner No.2-Institution. The said application of the
Petitioner No.1 was considered by the Respondent No.3 and vide its order
dated 26.11.2008 the Respondent No.3 granted the said recognition
certificate to the Petitioner No.1 to start B-Ed course for the academic
year 2009-2010. In so far as Minority Educational Institutions are
concerned, the Head Office of Respondent No.3 – NCTE, it appears, had
issued a circular dated 3.2.2008 to all its Regional Branches including the
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Third Respondent herein thereby issuing directions that the Applications
from minority educational institution, which are formally declared as
minority and who have submitted their applications to the Regional
Committee before cut of date i.e. 31-10-2008, may be considered for the
academic year 2009-2010, even from the States for which a ban has been
imposed to consider the applications for the academic year 2009-2010 in
view of the recommendations of the respective State Governments/Union
Teritories Administrations. It appears that similar Recognition
Certificates have been issued to the Petitioners in the companion
Petitions.
4. The Petitioners thereafter submitted the said recognition
certificate to the Respondent No.2 i.e the University of Mumbai which in
turn forwarded the said Application of the Petitioners to the Respondent
No.1 vide its letter dated 29-12-2007. That the Respondent No.2 has
forwarded the application of the Petitioners to the Respondent No.1 was
informed to the Petitioners by the Respondent No.2 by its letter dated
3-1-2008. Since the Petitioners could not get permission from the 1st
Respondent within the time frame prescribed, the 2nd Respondent by its
letter dated 24-2-2009 informed the Petitioners that one third amount of
affiliation fee will be refunded to the Petitioners as per the rules in due
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course. The Petitioners claimed to have all the necessary infrastructure in
place in so far as Petitioner No.2 is concerned and have also the
employees including teaching and non-teaching staff as per the norms
prescribed by the Respondent No.3. The Petitioners in view of the non-
receipt of the permission from the 1st Respondent issued two reminders to
the Respondent No.1 dated 10-6-2009 and 18-6-2009 requesting the
Respondent No.1 to do the needful and issue letter of approval at the
earliest so that affiliation could be granted by the 2nd Respondent
University and the admission for academic year 2009-2010 could be
started. The Petitioners also claim to have addressed a request letter to
the Hon’ble Cabinet Minister of the Department of Higher & Technical
Education, Government of Maharashtra. Upon receiving no response to
the said letter, the Petitioners have filed the instant Petition.
5. In so far as other Petitions are concerned, similar
reminders/letters have also been addressed by the Petitioners in the said
companion writ petitions.
6. In so far as the Petitioners above named are concerned, it is
the contentions of the Petitioners that they are entitled to establish an
educational institution of their choice on account of the minority status.
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The Petitioners relying upon the circular dated 3.2.2008 issued by the
Head Office of the 3rd Respondent NCTE which circular inter alia lays
down that the applications from Minority Educational Institution which
are formally declared as such and which submitted their applications to
the Regional Committee before cut of dated 31-10-2008 may be consider
for such courses for which ban has been imposed to consider the
applications for the academic year 2009-2010 in view of the
recommendations of the respective State Governments/Union Territories.
It is the contention of the Petitioners that in the light of the observations
of the NCTE it is incumbent upon the 1st Respondent to forthwith grant
approval letter in favour of the Petitioners.
7. It is the contention of the Petitioners in the above Petition as
well as in the companion matters that in view of the provisions of the
NCTE Act 1993 once the NCTE has granted recognition certificate, it is
mandatory on the Respondent Nos.1 and 2 to grant permission and
necessary affiliation for the B.Ed Colleges to be run by them. The
Petitioners have principally relied upon the provisions ofr the NCTE Act,
1993 and the judgment of the Apex Court reported in 2006(9) SCC 1 in
the matter of State of Maharashtra v/s. Sant Dnyaneshwar Shikshan
Shastra Mahavidalaya and ors in support of their submissions.
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8. On behalf of the State Government affidavit in reply has been
filed by one Sadashiv Shivdas, Joint Secretary to the Government, Higher
and Technical Education Department, Government of Maharashtra. It
has been stated in the said affidavit that requirement of the teachers is
about 8000 per year whereas the intake capacity the B Ed colleges which
have been sanctioned is about 40000 , and therefore Hon’ble Chief
Minister of the State had written D.O letter dated 11-7-2006 to the
Hon’ble Minister, Human Resource Development, Government of India,
New Delhi requesting them to direct the NCTE authorities not to issue
any permission for opening of new B.Ed Colleges without due
deliberation with the State authorities.
9. It has further been stated in the said affidavit that by letter
dated 21-11-2008, the Regional Director, Western Regional Committee,
NCTE, Bhopal was directed by the Member Secretary, NCTE, New Delhi
not to consider any application for B.Ed Course for the academic year
2009-2010 from the State of Maharashtra and all such applications
should be returned along with processing fees and other documents to
the Institution concerned. The affidavit further goes on to state that there
are already 469 B Ed Colleges in existence in Maharashtra and the intake
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capacity presently of all the colleges is approximately 50,000 students
every year whereas the requirement is only of 8,000 teachers per year in
the State. It is further stated in the said affidavit that to avoid further
unfortunate events of unemployment, mal-practices, frustration of
trained graduates, the State Government thought it fit not to grant
further permission to B Ed Colleges. The affidavit further goes on to
state that issuing permission without taking into consideration the
existing intake capacity will create imbalance between supply of trained
graduate teachers and requirement in the school. It is further stated that
if excess permission is given for starting new B Ed Colleges then there is
possibility of law and order situation arising on account of
unemployment of the trained graduates. It is therefore stated that in view
of the aforesaid reasons the State Government has not granted
permission to the Petitioners to start B Ed college.
10. We have heard the learned counsel for the parties. On behalf
of the Petitioners, the principal submission is that once the Respondent
No.3 has granted recognition certificate, it is not open for the Respondent
No.1 to refuse permission to the Petitioners to start the B Ed college. The
learned counsel for the Petitioners placed reliance on the scheme of the
NCTE Act, 1993 which had come up for consideration before the Apex
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Court in the Judgment of the Sant Dnyaneshwar Shikshan Shastra
Mahavidalaya (Supra). It is submitted on behalf of the Petitioners that
final authority for starting B Ed College is the NCTE and it is therefore
neither open to the State Government nor the Respondent No.2
University to consider local condition or apply its policy to refuse such
permission. In fact it is contended that the State Government has no
power to over rule the decision of the NCTE, and therefore inaction on
the part of the State Government or refusal on the part of the State
Government to grant permission to the Petitioners to start B Ed college is
contrary to law. The learned counsel for the Petitioners drew our
attention to the various Paras of the judgment cited supra in that behalf.
11. On the other hand it is contended on behalf of the
Respondent No.1 that the opinion expressed by the State Government is
necessary to be considered by the NCTE whilst deliberating whether the
recognition certificate ought to be granted or not to a particular
institution. It is further contended on behalf of the Respondent No.1 that
considering the present intake capacity of the existing B Ed colleges
which is about 50,000 and also considering the requirement which is
about 80,000 teachers, the State Government thought it fit not to grant
any permission for opening of any new B Ed college. The learned
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counsel for the Respondent No.1, therefore, submitted that though the
Respondent No.3 has granted recognition certificate, the State
Government still has a role to play in the matter of granting of permission
to start a new B Ed College.
12. The learned counsel for the Respondent No.2 University
submitted that the Respondent No.2 University has no objection to grant
affiliation provided permission is granted by the Respondent No.1 and in
fact the Respondent No.2 has submitted the papers to the Respondent
No.1 for necessary approval.
13. It is pertinent to note that in each of the above Petitions the
Petitioner has a recognition order from the NCTE, the concerned
Universities have also forwarded the papers to the State Government and
it is the State Government which is not taking any decision as regards
grant of permission to the Petitioners and affiliation to the concerned
Universities. As mentioned herein above the State Government has filed
affidavit in Writ Petition No.5884 of 2009. The stand of the State
Government in the said affidavit has been referred to earlier in this
judgment. The stand of the State Government is, therefore, that the
permission cannot be granted to the Petitioners in view of the fact that
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the State Government is of the opinion that already intake capacity of the
existing B Ed colleges is far beyond the requirement of teachers in the
State.
14. It is therefore required to be considered whether the State
Government can refuse permission on the alleged policy mentioned in the
affidavit. In the judgment cited supra wherein the issue was as regards
granting of no objection or refusing to grant affiliation by the University
examining body in the matter of the B Ed colleges, the Apex Court has
held on consideration of the provisions of NCTE Act and considering that
the said Act is an act of Parliament referable to Entry 66 of List I of
Schedule VIII. The Apex Court has held that the final authority under the
said Act lies with the NCTE and the NCTE cannot be deprived of its
authority or power in taking appropriate decision under the said Act
irrespective of absence of no objection certificate by the State
Government/Union Territories. It has been held that the State
Government can not refuse the permission on the basis of policy
considerations. It has also been held by the Apex Court in the said
judgment that the State Government has no power to refuse permission
or over rule the decision of the NCTE. The relevant paras of the said
judgment are reproduced herein under :-
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63. In the instant case, admittedly, Parliament has
enacted the 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
sustem 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, the 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 for
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 the
State Government to refuse permission relying on a State Act
or on “policy consideration.”
64. Even otherwise, in our opinion, the High Court
was fully justified in negativing the argument of the State
Government that permission could be refused by the State
Government on “policy consideration”. As already observed
earlier, policy consideration was negatived by this court in
Thirumuruga Kirupananda Turst as also in Jaya Gokul
Educational Trust.
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68. 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 on
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.
74. It is thus clear that the Central Government has
considered the subject of secondary education and higer
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 Bed colleges or
allowing increase in intake capacity, keeping in view the 1993
Act and planned and coordinated 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,
the 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.
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75. The decision relied on by Vidharbha Sikshan
Vyawasthapak Mahasangh V. State of Maharashtra 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 Bed college. Considering the fact that if permission
would be granted, there would be large-scale unemployment,
it was decided by the State government not to allow new BEd
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 the State Government vis-a-vis the
Central Government and the 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
the 1993 Act, it was not open to the enactment, as per the
decisions of this court, would be void and inoperative. It
would be unthinkable that if the 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.
80. In our opinion, the observations that the
provisions of Sections 82 and 83 of the Maharashtra
Universities Act are “null and void” could not be said to be
correct. To us, it appears that what the High court wanted to
covney was that the provisions of Sections 82 and 83 would
not apply to an institution covered by the 1993 Act. As per
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the scheme of the Act, once recognition has been granted by
NCTE under section 14(6) of the Act, every university
(“examining body”) is obliged to grant affiliation to such
institution and Sections 82 and 83 of the University Act do
not apply to such cases.
15. In our view, therefore, considering the said judgment of the
Apex Court, the matter is no more res integra in so far as powers of the
NCTE under the said Act are concerned, and once the NCTE has granted
recognition order it is not open for the State Government to withhold the
permission on the ground of policy consideration. It would be pertinent
to note that the case sought to be made out by the Respondent No.1 State
Government in the above Petition was exactly the case sought to be made
out before the Apex Court in the Judgment cited (Supra). The said case
has been negatived by the Apex Court in Paras 63 and 74 of the said
Judgment (Supra). The Respondent No.1 has no other material than the
material which was before the Apex Court in the year 2006. It is
therefore not open for the Respondent No.1 to withhold the permission
on the grounds stated in the affidavit.
16. The learned AGP for the Respondent No.1 also sought to rely
upon the interim order passed by the Apex Court in the Petition(s) for
Special Leave to Appeal (Civil) No (s).4243-4244/2009 The said Appeals
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have been filed against the judgment and order dated 07-01-2009 passed
by a Division Bench of this Court sitting at Nagpur in Writ Petition No.
2701/2008. By the said judgment, the Division Bench has set aside the
recognition/permission granted by the Respondent No.3 herein in its 101
to 109th meetings pertaining to the State of Maharashtra for
establishment of 291 new D Ed colleges/courses. By the interim order,
the Apex Court has directed the State Government to allot seats for
admission to the students as per the scheme provided by the State. The
interim order mentions cancellation of the recognition of the
Applicants/Petitions before the Apex Court.
17. In our view, the reliance placed by the learned AGP on the
said interim order of the Apex Court is misfounded, as the issue before
the Division Bench was as regards recognition/permission granted to D
Ed colleges by the NCTE and not the B Ed colleges which is the subject
matter of the instant Petitions. In our view, considering the judgment of
the Apex Court cited (Supra) above the Petitions are required to be
allowed and are accordingly allowed in terms of prayer clause (a) of all
the Petitions. However, prayer clause (a) of the Writ Petiton No.5886 of
2009 is reproduced herein under :-
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“(a) that this Hon’ble Court be please to issue a writ
of mandamus or a writ, order or direction in thenature of mandamus thereby directing the
Respondent Nos.1 & 2 to produce the relevantrecords and after considering the legality and
validity and propriety thereof this Hon’ble Court beplease to direct the Respondent Nos.1 and 2 to
forthwith grant the necessary permission and
affiliation to the Petitioners for starting a new B.EdCollege at Savarkar Nagar, Dist. Thane from
academic year 2009-2010 as recognized by the
Respondent NO.3.
Since we have allowed the Petitions on the Application of the judgment
of the Apex Court in Sant Dnyaneshwar Shikshan Shastra Mahavidalaya,
we have not gone into the aspect as to whether the Petitioners who are
minority institutions are entitled to the reliefs in view of the directions of
the Head Office of the NCTE. Needless to state that the Petitioners would
be entitled to admit the students for the academic year 2009-2010. Rule
is accordingly made absolute to the aforesaid extent.
Sd/- sd/-
[R.M.SAVANT, J] [S.B.MHASE, J]
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