IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.10.2008
C O R A M :
THE HONOURABLE MR. JUSTICE K. CHANDRU
W.P.Nos.13200, 12767, 12768, 12781, 12806,
12807, 12782, 12783, 12800, 12801, 12848,
12849, 12984, 13024, 13028, 13066 to 13075,
12540, 13086, 13115, 13120, 13121, 13136,
13196 to 13199, 13201, 13211, 13307 to
13311, 13314, 13316, 13317, 13321 to 13326,
13482, 13484, 13558 to 13560, 13585, 13604,
13628, 13705, 13718, 13853, 14123, 14124,
14125, 14286, 14599, 14680, 14747, 14792,
15492, 15521, 16061, 16142, 16230, 16802,
17010, 17547, 17749, 17973, 17990, 18585,
19309, 19417, 21258, 21888, 25105, 25182,
25187, 25193, 25205, 25234, 25249, 25253,
25255, 25256 and 24139 of 2008
and
connected Miscellaneous Petitions.
W.P.No.13200 of 2008 :
KR Teacher Training Institute for
Women N.H.7, K.R.Nagar,
Vedasandur-624 710, Dindigul
District, Tamil Nadu, rep.by its
Correspondent Mr.R.Raja Subramaniem ... Petitioner
-vs-
1. The State of Tamil Nadu, rep.by its
Secretary, School Education Department,
Fort St.George, Chennai-600 009.
2. The Director of Teacher Education,
Research & Training, College Road,
Chennai-600 006.
3. The Principal,
District Institute of Education and
Training (DIET), Oddanchatram,
Dindigul District.
4. The Regional Director,
National Council for Teacher Education,
I Floor, C.S.D.Building, H.M.T.Post,
Jalahalli, Bangalore-560 031.
5. The Member Secretary,
National Council for Teacher Education,
Hans Bhavan, Wing II,
1, Bahadursha Zafar Marg (near ITO)
New Delhi-110 002. ... Respondents
W.P.No.25182 of 2008 :
Self-financing Private Teacher Training
Institutes Association (Regd.) rep.by
its President, Mr.T.V.K.Babu,
New No.11, Old No.7, 3rd Cross Street,
C.I.T.Nagar, Chennai-600 035. ... Petitioner
-vs-
1. The State of Tamil Nadu, rep.by its
Secretary to Government,
School Education Department,
Fort St.George, Chennai-9.
2. The Director of Teacher Education,
Research & Training,
Government of Tamil Nadu,
D.P.I.Campus, Chennai-6.
3. The National Council for Teacher
Education, rep.by its Member Secretary,
Hans Bhavan, Wing -II,
New Delhi-110 002.
4. The Regional Director,
National Council for Teacher Education,
Southern Regional Committee,
First Floor, C.S.D.Complex,
H.M.T.Township, Bangalore-31. ... Respondents
PRAYER in WP.13200 of 2008 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records from the first respondent in G.O.(Ms.)No.94, School Education (U1) Department, dated 03.5.2008, and quash the same.
PRAYER in WP.25182 of 2008 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records in respect of the impugned Government Order in G.O.Ms.No.94, School Education (U1) Department, dated 03.5.2008 issued by the first respondent and quash the same as ultra vires the Constitution, void, unlawful, arbitrary, without jurisdiction in so far as it relates to the members of the petitioner is concerned.
For petitioner in
WP.Nos.13200, 12781, 12782,
12783, 12800, 12801, 12848,
12849, 13086, 13136, 13201,
13482, 13484, 13585, 13604,
13628, 13705, 14286, 14747,
14792, 15492, 16061, 16230,
17749, 17973, 17990, 18585,
19417, 21888, 25105, 25187,
25193, 25205, 25234, 25249,
25253, 25255 & 25256/2002 :: Mr.B.Rabu Manohar
WP.Nos.12767,12768, 12540,
13120, 13121,13196 to 13199
13316, 13317,13558 to 13560,
16142, 19309 of 2002 :: Mr.K.Selvaraj
WP.Nos.12806, 12807, 13066
to 13075,14124,14125,14599
25182 of 2008 :: Mr.R.Muthukumarasamy, SC &
Mr.N.R.Chandran, SC for
Mr.R.Sureshkumar
WP.No.13024 of 2008 :: Mr.Vijay Narain, SC for
Mr.E.Vijay Anand
WP.No.13028 of 2008 :: Mr.S.Jaganathan
WP.No.13211 of 2008 :: M/s.Chandrasekaran
& Associates
WP.Nos.13307 to13311,13321
to 13326,14123,14680,17547,
21258, 24139 of 2008 :: Mr.M.Hidayatullah Khan
W.P.No.13314 of 2008 :: Mr.P.Srinivas
W.P.Nos.13718, 13853/2008 :: Mr.T.S.Sivagnanam
W.P.No.15521 of 2008 :: Mr.P.Sanjay Gandhi
W.P.No.16802 of 2008 :: Mr.Javid Khan
W.P.No.17010 of 2008 :: Mr.C.Robert Bruce
For respondents in
W.Ps.13200 &12782 of 2008 :: Mr.S.Ramasamy, AAG asstd. by Mr.G.Sankaran,
Spl.G.P.for Ms.Dakshayini Reddy,GA for Government
For respondents in
W.P.Nos.12767, 12768, 12800,
12801, 13307 to 13311,13321
13482, 13484, 13558 to 13560,
13585, 13604, 13628, 15492,
15521, 16230, 16802, 17749,
21258 of 2008 :: Mr.Ramakrishna Reddy
for NCTE, Bangalore.
For respondents in
W.P.Nos.12806,12807 of 2008
12800, 12801 of 2008 :: Mr.L.S.M.Hasan Fizal,G.A.
for Government
For respondents in
W.P.Nos.12806,12807,12984 ,
13066 to 13075, 13136 of
2008 :: Mr.P.R.Gopinathan for R4
For respondents in
W.P.No.14599 of 2008 :: Mr.M.T.Arunan, ACGSC
for R3 and R4
*****
O R D E R
These batch of writ petitions challenges the constitutional validity of G.O.Ms.No.94, School Education Department, dated 03.5.2008. All these writ petitions were grouped together and under the orders of the Honourable Chief Justice were directed to be posted for final disposal before this Court.
2. These writ petitions are of a seasonal character and are filed year after year whenever the State Government comes up with orders relating to Teacher Training Institutes (for short, TTIs) run under the self-financing basis, laying down certain guidelines dealing with admission, teacher’s qualification and examination. In this batch, one set of writ petitions is filed by the TTIs, which are yet to get affiliation by the examining body. W.P.No.25182 of 2008 is filed by an Association representing the existing TTIs, which already have recognition from the National Council for Teacher Education (NCTE) and also approval by the authorities under the State Government.
3. Ever since the creation of NCTE, the relative position of the NCTE vis-a-vis State Government became a contentious issue and there has been scores of litigation before this Court and the Supreme Court. The State Government has been issuing orders on an yearly basis with reference to the functions to be discharged by the officers under the State Government in relation to the TTIs.
4. When G.O.(2D) No.59, School Education Department, dated 14.11.2006 prescribing the last date for approval of the list of staff members by the respective TTIs were issued, a batch of writ petitions being W.P.No.47503 of 2006 and batch cases (Annai Teacher Training Institute -vs- State of Tamil Nadu) was filed before this Court. Those writ petitions were dismissed by a common judgment dated 03.4.2007. V.Ramasubramanian, J. delivering the common judgment while upholding the said G.O. in paragraphs 27(c), (d) and (e) had observed as follows:-
”27.(c) Within two months from the date of receipt of a copy of this order, the State Government shall issue a compendium of guidelines, prescribing the calendar of activities for the Teacher Training Institutes, indicating (i) the date of commencement of the Course, (ii) the cut off date for approval of staff members, (iii) the cut off date for admission of students, (iv) the cut off date for holding Single Window Counselling, for sponsoring candidates under the Government Quota, (v) the method of recruitment of Teaching Faculty, administrative and technical support staff, (vi) the calendar of activities for the academic year including the days of instruction and days of internship, (vii) the schools in which the internship could be undergone, (viii) the Schedule for the Examination as well as the Commission Work and Observation Work and (ix) such other matter as required for streamlining the system of Teacher Education in the State. The said compendium of guidelines, shall be issued by the Government within two months and it shall take effect from the academic year 2007-2008 onwards.
(d) In the compendium of guidelines, the State Government shall make it clear that the question of grant of affiliation or approval of admission of students and appointment of Faculty Members, would be considered for every academic year, only in respect of those institutes which get orders of recognition upto a particular date, say 31st July or 31st August of a year. The date so prescribed shall be in tune with the calendar of activities prepared by the State Government, taking note of para -2 of Appendix 2 Norms and Standards prescribed under Amended Regulations of the year 2006. The Institutes which receive orders of recognition beyond the cut off date so prescribed by the State Government, would be entitled to have affiliation and approval of admission of students and appointment of staff members only for the following academic year.
(e) Since NCTE has now modified the format of the orders of recognition and the academic year is not mentioned in the orders of recognition, the Institutes will have a right (from the academic year 2007-2008 onwards) to admit students only after the grant of approval of staff members and the grant of affiliation by the State Government, in view of Regulation No.7(11), 7(12) and 8(10) of National Council for Teacher Education (Recognition Norms and Procedure) Regulations 2005 published in the Government Gazette on 13.1.2006.”
5. Subsequently, when G.O.Ms.No.108, School Education Department, dated 17.5.2007 was issued prescribing the procedure for admission of students, calendar of activities for the diploma education course for the year 2007-2008 was issued. That became a subject matter of another round of litigation. The said batch starting with W.P.No.20569 of 2007 (Kumaran Ashram Medical Trust Teacher Training Institute -vs- State of Tamil Nadu) was disposed of by a common order dated 11.1.2008. by P.Jyothimani, J. who while upholding the said G.O. (except the issue relating to reservation) in paragraph No.78(x), directed the Director of Teacher Education Research and Training (DTERT) to issue fresh calendar of activities for the Academic Year 2008-2009 on the basis of the observations made in his order.
6. These two decisions were challenged both by the State and by the private TTIs before a Division Bench. The Division Bench presided by A.P.Shah (C.J.) as he then was, by an order in W.A.No.137 of 2008 etc. dated 01.4.2008 (State of Tamil Nadu and another -vs- Kumaran Ashram Medical Trust Teacher Training Institute), confirmed the directions issued by both the learned Judges except for minor modification. Hence, both the judgments of the learned Judges became final and they were not subjected to any further challenge.
7. Pursuant to the said direction, the second respondent Director made certain recommendations to the State Government and also suggested draft guidelines for governing the TTIs in future. After accepting those draft guidelines, G.O.Ms.NO.94, School Education Department, dated 03.5.2008 came to be issued. It is this order which is now being challenged by all the TTIs. The attacks on the State Government’s power have been made third year in succession.
8. Since the said GO is under challenge, the relevant portion of the GO in paragraphs 1, 2 and 3 may be usefully extracted below :-
”1. In the letters third read above, the Director of Teacher Education Research and Training has stated that the Private Teacher Training Institutes in the State who have obtained recognition from the Southern Regional Committee, National Council for Teacher Education, Bangalore send proposals through the Principal of the District Institutes of Education and Training concerned to the Director of Teacher Education Research and Training seeking approval to the staff list of those Institutions. On examining these proposals, it is noted that certain persons appointed in a particular Teacher Training Institute are included in the staff list seeking approval in respect of another institute, such staff list proposals are returned to the institutes stating that one person cannot simultaneously work in two institutes. Besides, there are also a large number of instances wherein bogus experience certificates are produced by the Institutes with an ulterior motive of getting approval for the staff list. In the absence of countersignature by the departmental officers concerned the experience certificates are not accepted for want of genuineness. When the proposals for staff lists are returned for the above reasons, such orders are challenged before the Hon’ble High Court. The Hon’ble High Court in many cases has pointed out that as no guidelines prescribing the procedure have been issued by Government, returning the proposal pointing out the above nature of deficiency is not sustainable. The Director of Teacher Education Research and Training has also stated that in the above context it has become necessary to frame certain Guidelines governing the procedures for grant of approval for the staff list by the Director of Teacher Education Research and Training. Further, he has also stated that in respect of colleges offering B.Ed., and M.Ed., courses after getting recognition from NCTE, the Universities concerned in Tamil Nadu are granting affiliation to such colleges, only after which the colleges concerned are entitled to make admission of students.
2. The Director of Teacher Education, Research and Training has therefore requested that Government may contemplate empowering the DTERT to grant affiliation to the recognised Self-Financing Private Teacher Training Institutes by laying down certain norms therefor. The DTERT has also submitted a Draft Guidelines prescribing conditions for grant of affiliation, grant of approval for staff list, approval for list of students, attendance and condonation, visits to institutes and conduct of Diploma in Teacher Education exams and award of Diploma etc.
3. After careful consideration of the draft guidelines sent by the Director of Teacher Education Research and Training, the Government hereby issue the following guidelines which shall come into force with immediate effect.”
9. After notice from this court, the third respondent NCTE offered the following remarks setting out the stand taken by the NCTE with reference to the impugned GO.:
”As the institution cannot offer the course without having an affiliating body for conducting the teacher education course, wherein which the affiliating authority will issue the calendar of events for the academic year, conduct theory and practical examinations and also announces the result and issue certificates to the candidate of the institution which is affiliated.
As per para 8(12) of the regulations, once the recognition is granted by NCTE, the institution has to obtain affiliation from the concerned authorities. The concerned authorities like Universities for courses like B.Ed. B.P.Ed., M.Ed., etc. and State Government Departments like SCERT, DSERT, DTERT for D.Ed. C.P.Ed. & Pre-primary courses. The affiliating authorities will have their own set of rules and regulations for according affiliation to the institutions which makes application after obtaining recognition from NCTE. It is the liberty of the affiliating authority to frame the rules for grant of affiliation to the institution. As the NCTE has completed its process of application and also has granted recognition, it is the further part of affiliation which the institution has to follow the rules stipulated by the affiliating authority for obtaining affiliation to the institution. The conditions prescribed for grant of affiliation cannot be questioned by NCTE as the NCTE cannot affiliate any institution directly. The affiliating body necessarily need to be satisfied before the grant of affiliation to any institution. As such the conditions stipulated cannot be commented by NCTE nor it amounts to encroachment of NCTE Act, Rules and Regulations.
As envisaged above, the NCTE Act itself aims for planned and co-ordinated development of teacher education system throughout the country. As such, the conditions stipulated by any affiliating authorities does not amount to encroachment of NCTE Act and regulations and also not contrary to any of the NCTE Act and its regulations.”
10. Mr.R.Muthukumarasamy, learned Senior Counsel representing Mr.R.Suresh Kumar submitted that the State Government has no jurisdiction to pass the impugned order as the field is covered by the NCTE Act. Since the NCTE is legislated under Entry 66 List I of Schedule VII, any attempt by the State Government to pass orders on the covered subject will be unconstitutional. Once the field is occupied by the valid Central Legislation, the State has no power to legislate on the said field as it lacks legislative competence in terms of Article 246 of the Constitution. The impugned GO does not prescribe any guidelines and therefore it is arbitrary. It is an attempt to over reach the order granting recognition to the TTIs by the NCTE. The State Government has no power to grant any affiliation and whatever power that has been granted to the State Government is only the power conferred by the NCTE under the orders of recognition given to the institution which includes staff approval and nothing more. He also submitted that under Section 14(6) an ‘examining body’ shall on receipt of an order under sub-section (4) of section 14 shall grant recognition.
11. Following his submissions, Mr.N.R.Chandran, learned Senior Counsel appearing for some of the petitioners submitted that the impugned GO only deals with self-financing TTIs and not deals with Government and Aided TTIs and, therefore, it is arbitrary and violative of Article 14 of the Constitution. He also submitted that the concept of affiliation by an examining body is available only to University and not to an examining body set up by the State Government. He also submitted that the impugned G.O. in effect is making even the existing institutions go in for affiliation. The conditions that are put therein will amount to an action replay, which is not required. He submitted that in the guise of seeking these informations, as found in annexures to the GO, in effect the State Government is trying to review the order of recognition granted by the NCTE.
12. Mr.Vijay Narayan, learned Senior Counsel submitted that paragraphs 6 and 7 of the conditions for grant of affiliation to new TTIs clearly show that the State Government is empowering itself to cancel the recognition granted to these TTIs by the NCTE. In fact paragraphs 6 and 7 of the impugned order are mutually contradictory.
13. Mr.K.Selvaraj, learned counsel appearing for some of the petitioners submitted that if the attempt by the impugned GO is only to seek information from the TTIs, then such informations are already available in the website put out by the NCTE and the TTIs. In any event, the present annexure to the impugned GO seeks for the very same information which are furnished by these TTIs at the time of getting recognition as per the NCTE Norms and Standards prescribed under Regulations of the year 2007 and there is no need to duplicate the same.
14. Countering these submissions, Mr.S.Ramasamy, learned Additional Advocate General contended that the examining body as found in section 2(d) and 2(m) read with Section 14(6) is set up by the State Government. Under Section 14(6) of the NCTE Act, it is open to the examining body to grant affiliation to an institution and also cancel the affiliation where recognition has been refused by the NCTE. The word ”shall” found in Section 14(6) does not mean that there will be an automatic recognition. The examining body is not expected to act like a rubber stamp of the NCTE. The argument put forth by the counsel for the petitioners in this regard is erroneous. The examining body itself has certain role to play. The areas such as admission of students, staff approval, conditions of teachers and other non-teaching staff, to find out whether the conditions of recognition have been complied with by the TTIs and the time schedule for examining the syllabus for the diploma course will come squarely within the purview of the State Government. The impugned GO is very much within the legislative competence of the State Government and referable to Entry 25 List III of Schedule VII. The very necessity to frame such guidelines arose due to the directions given by this Court in two of its earlier orders. As long as the State Government has the legislative competence, it is well open to the State to frame such guidelines so that each officer functioning under the State will not act in different directions. Laying down guidelines will only enhance the smooth functioning of the institutions and there will be uniformity in the orders passed by the officers under the State.
15. He submitted that in so far as the Government quota fixed under the impugned GO is concerned, he is not insisting on the said quota in view of the earlier decisions in this regard. However, it is open to the various TTIs to accept Government sponsored students or agree for a Common Window System (CWS) for the purpose of accommodating Government sponsored candidates. He also submitted that the impugned GO neither violates the NCTE Act or its Rules framed thereunder as well as the Regulations prescribed.
16. He also submitted by referring to a sample order of recognition granted by NCTE in respect of one TTI, (which is a petitioner before this Court) and stated that the NCTE itself has granted certain powers to the State Government to exercise and therefore it is not as if the State Government lacks power in prescribing the impugned guidelines. For this purpose, he referred to paragraphs 3 to 8 of the order dated 09.5.2008, which is model order of recognition and it reads as follows:-
”3. Now, therefore, in exercise of the powers vested under Section 14(3)(a) of the NCTE Act,1993, the Southern Regional Committee hereby grants recognition to Institute for conducting Elementary (D.T.Ed.) course of two years duration with an annual intake of 50 (fifty) students under clause 7(12) of Regulations, dated 13.1.2006. This order of recognition shall be perspective and take effect from the date of issue of the order, subject to fulfillment of the following:
i.The institution shall, within one month of the receipt of recognition order, convert the endowment fund account into a joint account to be operated along with an official of the Southern Regional Committee.
ii.The institution shall comply with the various other norms and standards prescribed in the NCTE regulations, as amended from time to time.
iii.The institution will ensure that Principal and Five faculty members duly approved by DTERT, Chennai are in position for an intake of 50 students before commencement of the course and a report to this effect shall be sent to the Southern Regional Committee immediately.
4.Further, the recognition is subject to fulfillment of all such other requirements as may be prescribed by other regulatory bodies like UGC, affiliating University/bodies, State Government etc.as applicable.
5.The institution shall make admissions only after it obtains affiliation from the examining body.
6.The institution shall submit to the Regional Committee a Self-Appraisal Report at the end of each academic year along the statement of annual accounts duly audited by a Chartered Accountant.
7.The institution shall maintain & update the website as per the provisions of NCTE Regulations.
8.If the institution contravenes any of the above conditions or any of the provisions of the NCTE Act, Rules, Regulations and Orders made or issued thereunder, the Regional Committee shall withdraw the recognition under the provisions of Section 17(1) of the NCTE Act.”
(Emphasis added)
17. Mr.Ramakrishna Reddy, learned counsel appearing for NCTE submitted that the NCTE has given its written remarks and they do not find anything illegal in the guidelines prescribed by the State and wanted the writ petitions to be dismissed. In the light of these rival submissions, the writ petitions will have to be decided.
18. The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VII Schedule to the Constitution. In the VII Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III. Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows:
25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.
Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I is as follows:
66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
19. The Supreme Court in Preeti Srivastava (Dr) -vs- State of M.P. reported in (1999) 7 SCC 120 dealt with the interplay between the Centre and State regarding legislative power on Education. Para 29 of the said decision may be usefully extracted below:-
”Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education, because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
20. The Supreme Court once again dealt with the same issue by its authoritative pronouncement in State of Tamil Nadu -vs- Adhiyaman Educational and Research Institute reported in (1995) 4 SCC 104. Since both sides placed reliance upon the judgment setting out the law on the said subject, para 41 of the said judgment may be usefully extracted below:-
41. What emerges from the above discussion is as follows:
(i) The expression coordination used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make coordination either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.
(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) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.
(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.
(v) When there are more applicants than the available situations/ seats, the State authority is not prevented from laying down high standards or qualifications than those laid down by the Centre or the Central authority to shortlist the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law.
(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities derecognise or disaffiliate an institution for not satisfying the standards or requirements laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally.
21. The Supreme Court in R. Chitralekha v. State of Mysore reported in AIR 1964 SC 1823 categorically held that the question as regards the impact of Entry 66 List I and Entry 25 List III must be determined by reading the Central Act as well as the State Act conjointly. A State law providing for such standards having regard to Entry 66 of List I would be struck down as unconstitutional only in the event the same is found so heavy or devastating so as to wipe out or appreciably abridge the Central field and not otherwise. Once the powers and functions of the Council are found to be subject to the guidelines issued by UGC and the perspective plan prepared by it would be subject to its approval, the question of standard of education set up by the State Act cannot be said to be leading to wipe out or appreciably abridge the Central field.
22. Further the alleged repugnancy between the Central Law like UGC Act and the legislation made by the Andhra Pradesh legislature regarding the Higher Education Commissionerate Act came up for consideration by the Supreme Court two times. In the first decision in Osmania University Teachers’ Association -vs- State of A.P. reported in (1987) 4 SCC 671, the Supreme Court struck down the State law. After that, the State of Andhra Pradesh made certain changes in the said Act. The said amendment was once again attacked in State of A.P. v. K. Purushotham Reddy, reported in (2003) 9 SCC 564. The Supreme Court while upholding the State Law in paragraphs 19 and 20 observed as follows:-
Para 19 : ”The conflict in legislative competence of Parliament and the State Legislatures having regard to Article 246 of the Constitution of India must be viewed in the light of the decisions of this Court which in no uncertain terms state that each entry has to be interpreted in a broad manner. Both the parliamentary legislation as also the State legislation must be considered in such a manner so as to uphold both of them and only in a case where it is found that both cannot coexist, the State Act may be declared ultra vires. Clause (1) of Article 246 of the Constitution of India does not provide for the competence of Parliament or the State Legislatures as is ordinarily understood but merely provides for the respective legislative fields. Furthermore, the courts should proceed to construe a statute with a view to uphold its constitutionality”.
Para 20 : ”Entry 66 of List I provides for coordination and determination of standards inter alia for higher education. Entry 25 of List III deals with a broader subject, namely, education. On a conjoint reading of both the entries there cannot be any doubt whatsoever that although the State has a wide legislative field to cover, the same is subject to Entries 63, 64, 65 and 66 of List I. Once, thus, it is found that any State legislation does not entrench upon the legislative field set apart by Entry 66 List I of the Seventh Schedule of the Constitution of India, the State Act cannot be invalidated.
23. The Supreme Court in K.Anjaiah and others -vs- K.Chandraiah and others reported in (1998) 3 SCC 218 has set out the cardinal principle of construction in interpreting a Statute. In paragraph 7, it is observed as follows:-
”It is a cardinal principle of construction that the Statute and the Rule or the Regulation must be held to be constitutionally valid unless and until it is established they violate any specific provision of the Constitution. Further it is the duty of the Court to harmoniously construe different provisions of any Act or Rule or Regulation, if possible, and to sustain the same rather than striking down the provisions outright. In other words the Court has to make an attempt to see if the different provisions of the Regulation can survive and in making that attempt it is open for the Court to read down a particular provision to clarify any ambiguity so that the provision can be sustained but not to relegislate a provision. This being the parameters under which a Court is required to scrutinise the provisions of any Act or Regulation when the same is challenged…” .
It is in this background, the challenge made to the impugned GO will have to be looked into.
24. Even when the State has power to legislate on the issues, and it is empowered to legislate, in so far as admission of students, reservation in educational institutions and conduct of examination by the Boards of School Education are concerned, they were dealing with those subjects by administrative orders. Originally, the various standing orders issued by the Department of Education, which were later compiled as Tamil Nadu Educational Rules, dealt with the entire issue relating to school education. Though some of the provisions may be referable to Tamil Nadu Secondary Education Act of 1920, many of the rules were only standing instructions made without any statutory backing. Since the subject matter had fell under List II (State List) of Schedule VII, there was hardly any challenge to such rules. Most of the schools were functioning either under the conditions of recognition or under the grant-in-aid code evolved by the State Government.
25. It is only in the early 70’s, in order to safeguard the service conditions of teachers and other employees working in various schools, the Tamil Nadu Legislature passed the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. By the said Act, the State codified the law relating to permission to establish schools. Recognition for running the school as well as service conditions of teachers and other employees working in the schools. The term ”private school” is defined under section 2(7) which, as on date, reads as follows:-
”private school” means a pre-primary, primary, middle or high school or higher secondary school or [teacher training institution imparting education or training, whether receiving grant from the Government or not], established and administered or maintained by any person or body of persons, and recognised by the competent authority under this Act but does not include a school or an institution-
a)imparting technical or professional education;
b)established and administered or maintained by the Central Government or the State Government or any local authority;
c)maintained or approved by, or affiliated to, any University established by law; or
d)giving, providing or imparting religious instruction alone, but not any other instruction;”
26. Initially, the term ”private school” was understood to include TTIs, but subsequently to make it explicit and to prevent the mushrooming growth of the TTIs, the Government thought to bring in an amendment to specifically include the term TTIs within the definition of ”private school” under the Tamil Nadu Act 11 of 1999. The amendment also received the assent of the President so as to have the protection of Article 254 (2) of the Constitution.
27. Though the said Act was originally thought to cover only aided schools, by the introduction of Section 14-A by the Tamil Nadu Act 11 of 1999, the Government’s obligation to give grant to new schools have been dispensed with. Therefore, the Act covers all types of schools. Under the said Act, every private school will have to establish a School Committee, which will administer the school. With reference to disciplinary action against teachers, prior approval, appeals and second appeals have been provided. Under the rules, the procedure for disciplinary action has been set out. In case of mismanagement, there is a provision to take over the management of the school. At times the management can also be suspended by the provisions of the Act and a Special Officer can be appointed.
28. After the advent of the enactment of NCTE Act, which is said to be referable to Entry 66 of List I, it may be said that the provisions relating to prior permission and recognition in respect of TTIs can be said to be eclipsed. But there is no gainsaying that the Private Schools Act itself is held to be not applicable to the TTIs, as alleged by the counsel for the petitioners.
29. Mr. R.Muthukumarasamy, learned Senior Counsel for the petitioners to emphasize that the NCTE Act fully covers the field, referred to the judgment of the Supreme Court in State of Maharashtra -vs- Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others reported in (2006) 9 SCC 1. He placed reliance upon the following passage found in paragraph 75 of the said judgment :
”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 State Legislature to exercise power by making an enactment. Such 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”.
30. It is not clear as to how the said passage is of any assistance to the case of the petitioners. By the impugned GO, the State has not attempted to encroach on the field occupied by the Central Legislation. After the enactment of the NCTE Act, the question of recognition of TTIs may be covered by the Central Law. But the Central Law itself had not intended to legislate on the field relating to admission of students, prior approval of staff qualification, syllabi for the diploma course, pattern of examination for the diploma course as well as rules of reservation for admission of students.
31. As rightly contended by the learned counsel for the NCTE on the basis of the written submission of the NCTE, still there are areas which the Central law had not occupied. On the contrary, the power of the Centre to enact the legislation and issue orders is held intact.
32. In so far as the State of Tamil Nadu is concerned, hitherto with reference to admission of students and syllabus and conduct of examination by the examining body, the powers were dealt with by administrative orders. But regarding service conditions of teachers, it is covered by the State Legislation. The impugned GO has been issued only within the four corners of law by the State and it does not suffer from any constitutional infringement of the Centre’s powers.
33. The challenge to the impugned GO was mainly on the usage of the term ”affiliation” by the examining body. Therefore, much of the time of the counsels were spent by stating that the examining body, if it is a University, can grant affiliation, but it cannot be conferred to an examining body like the Board of Examination set up by the State Government. This argument is fallacious since section 17(6) of the NCTE Act itself uses the term ”affiliation” by an examining body. Therefore, affiliation by an examining body can only mean in case of colleges, the universities and in case of the Diploma Courses, it is only the State Boards of Examination.
34. The term ”affiliate”, as found in the Chambers 20th Century Dictionary, New Edition (1991) reads as follows:-
”affiliate” to adopt or attach as a member or branch: to impute paternity of: to assign the origin of. -v.i. to become closely connected, to associate: to fraternise.- n. an affiliated person, an associate: a branch, unit, or subsidiary of an organisation.”
35. Therefore, when the plain meaning of the term ”affiliation” is clear, it cannot be given any artificial meaning as suggested by the counsels for the petitioners. The NCTE itself in their orders of recognition had given power to grant approval for the teaching staff as per the qualification prescribed by them. But with reference to the other staff (teaching and non-teaching), it exclusively vests on the State to make rules in this regard. Even the conditions of Recognition clearly set out that students can be admitted only after the TTI obtains affiliation from the examining body. It also specifies that the recognition of the NCTE was subject to fulfillment of all such other requirements as may be prescribed by the regulatory bodies including State Government as applicable. Therefore, it is too late in the day for the petitioners to contend that the State has no power to prescribe guidelines in the areas in which it has exclusive jurisdiction.
36. It is not seen from the impugned order that any of the guidelines encroach upon the NCTE Act or the Regulations framed thereunder. The only issue relating to Single Window System has been given up by the learned Additional Advocate General. Hence, that is not gone into in the present case. As alleged by Mr.Vijay Narayan, learned Senior Counsel, there is no contradiction between paragraphs 6 and 7 in the impugned order. Para 6 regarding affiliation being granted on fulfillment of all conditions and cancellation of affiliation where recognition has been refused by NCTE is fully inconsonance with Section 14(6) of the NCTE Act. Para 7 very clearly states that in case of non-compliance, only a compliant will be sent to the NCTE regarding factual position and after clearance from the NCTE, decision will be taken. Such a power cannot be said to be a power beyond the scope conferred to the State. An attempt is made to portray the said paragraph, as if it is in conflict with the dictum of this Court in Bharathidasan University -vs- Dhanalakshmi Srinivasan Educational and Charitable Trust reported in (2005) 2 CTC 182. Much of arguments was concentrated on the possible delay in ascertaining the views of NCTE before grant of affiliation and such a provision will be abused by the State authority. This Court is unable to agree with the said submission. Since the State is empowered to grant affiliation only on fulfillment of conditions of recognition by the NCTE, it cannot act like a rubber stamp. If there are any unusual delay not contemplated under the Act, it is not as if the aggrieved parties have no remedies by approaching this Court and seeking for appropriate directions.
37. Ultimately in the matter of TTIs, the NCTE and the State authorities will have to co-exist in the interest of academic excellence and to prevent mushroom growth of fly by night institutes. What is at stake is the innocent students and gullible public and they should not be allowed to be left to the vagaries of such institutes. The underlying public policy behind the impugned GO only enhances the spirit of Article 14 and it is not derogation of the said Article. Even the question of reservation is covered by the provisions of the NCTE Regulations of 2007. Annexure to the Regulation in paragraph 3.2.2 clearly sets out that the rules of reservation as prescribed by the State Government will prevail.
38. The further attack that the Government institutes are not covered by the GO is misconceived. It is open to the Government to treat the Government run institute differently, as they form a class by themselves. It is needless to state that under the Scheme of the NCTE Act, even the Government and aided TTIs are subjected to regulatory control and regulatory mechanism of the NCTE Act.
39. The attempt by the counsel to contend that the information sought for in the present impugned order has already been furnished to the NCTE or it is otherwise available in the website is no ground to deny furnishing the very same information to the State Government which ultimately must have a store of information regarding TTIs for which it is granting affiliation. It is unthinkable that an affiliating body cannot seek for an information which is required for the purpose of either future streamlining the institutions or to make complaints to the NCTE in case of deviation and asking the NCTE to de-recognise such of those institutes. It must be understood that ultimately it is the State Government which will have to bore the brunt of anger of the students or the parents or the general public in case there goes any amiss.
40. The power of the State in prescribing such conditions of affiliation has been upheld by this Court in more than one decision and they are as follows:-
a) University of Madras -vs- Lourdhu Ammal Educational Trust 2005 Writ L.R. 395;
b) Review Application in the same case reported in 2005 (2) CTC 513;
c) Full Bench judgment in Rukmani College of Education -vs- State of Tamil Nadu reported in (2008) 1 MLJ 1217.
41. In view of the above, the attack made to the impugned order is clearly misconceived, devoid of merits and the impugned GO is upheld except relating to Single Window System. In the light of the same, all the writ petitions will stand dismissed. However, there will be no order as to costs. All the miscellaneous petitions also will stand dismissed.
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To
1. The Secretary to Government,
School Education Department,
Fort St.George, Chennai-600 009.
2. The Director of Teacher Education,
Research & Training, College Road,
Chennai-600 006.
3. The Principal,
District Institute of Education and
Training (DIET), Oddanchatram,
Dindigul District.
4. The Regional Director,
National Council for Teacher Education,
I Floor, C.S.D.Building, H.M.T.Post,
Jalahalli, Bangalore-560 031.
5. The Member Secretary,
National Council for Teacher Education,
Hans Bhavan, Wing II,
1, Bahadursha Zafar Marg (near ITO)
New Delhi 110 002
[ PRV / 16030 ]