Andhra HC (Pre-Telangana)
Government Of A.P. vs St. Mary'S Educational Society, ... on 15 June, 2001
Equivalent citations: 2001(4)ALT444
ORDER
S.R. Nayak, J
1. Writ Appeal No.626 of 2000 is directed against the order of the learned single Judge dated 17-4-2000 passed in Writ Petition No.4548 of 2000 allowing the writ petition filed by the 1st respondent herein and directing the appellants herein to consider the application of the 1st respondent for grant of 'No Objection Certificate' forthwith and to issue 'No Objection Certificate' if it satisfies the requirements as provided in G.O. Ms. No.398, Education, dated 4-12-1997. The learned single Judge has further directed the 2nd respondent herein, viz., the National Council for Teacher Education (for short 'NCTE'), Southern Regional Committee, Bangalore, to consider the application of the 1st respondent in case if No Objection Certificate is granted by the appellants 1 and 2 with the rival applicant viz., Hussaini Educational Society for grant of recognition under the National Council for Teacher Education Act, 1993 (Act 73/93) (for short, NCTE Act).
2. WP No.1546 of 2001 is filed by Proddutur Development Trust having its office at Rayavaram, Proddutur in Cuddapah District for the following relief:
"..........to issue a writ of mandamus or any other appropriate writ or writ or a direction declaring the action of the respondents in insisting the petitioner to purchase Library and Laboratory equipment and appointment of staff as condition precedent for grant of provisional recognition to start the proposed College of Education in the name of VPR College of Education, by the petitioner-Trust, as illegal and arbitrary, by directing the respondents to consider the application of the petitioner for starting the College of Education by taking into account the financial resources and experience of the petitioner - trust to run the institution and for purchase of Library and Laboratory equipment and appoint of staff, award costs and pass such other or further orders as are deemed fit and proper in the circumstances of the case."
3. As the decision that may be taken by this Court in WA No.626 of 2000 will have bearing on the decision making in WP No.1546 of 2001, the writ appeal and the writ petition were clubbed by an earlier direction of the Court and both of them were placed before this Bench for final hearing.
4. The background facts that led to the filing of WA No.626 of 2000 be noted briefly as under: The Government of Andhra Pradesh, the 1st respondent, published a Notification dated 24-2-1998 calling for applications from private educational societies for the purpose of granting 'No Objection Certificate' (NOC) for starting B.Ed., Colleges during the academic year 1998-99. Further, through an amendment dated 6-3-1998, the Government of Andhra Pradesh notified the Revenue Divisions in which the colleges have to be established. In Nellore District, with which we are concerned in this writ appeal, Kavali Revenue Division was mentioned as one such Revenue Division for starting B.Ed"., College. The 1st respondent herein, St. Mary's Educational Society, Giddaluru in Prakasam District, pursuant to the above notification issued by the Government of Andhra Pradesh, submitted an application for grant of NOC for starting B.Ed., College at Buchireddipalem village, Kavali Revenue Division, Nellore District. The Commissioner and Director of School Education, who is the Chairman of the State Level Standing Committee, rejected the application of the 1st respondent on the ground that a copy of the registered sale deed was not enclosed to the application. The 1st respondent assailed the said action in WP No.9427 of 1999 before this Court and this Court by its order dated 27-7-1989 quashed the same and directed the Commissioner and Director of School Education to consider the application dated 22-3-1998 of the 1st respondent for issue of NOC. When that order of the learned single Judge was assailed in WA No.1825 of 1999, a Division Bench of this Court dismissed the writ appeal and confirmed the order of the learned single Judge by its judgment and order dated 14-12-1999. Thereafterwards, in pursuance of the directions of this Court in WP No.9427 of 1999, the 1st respondent's application was again taken up for consideration. In the meanwhile, the 2nd respondent-NCTE was requested to keep the application of Hussaini Educational Society, Nellore, pending further decision in the matter. The Commissioner and Director of School Education by his proceedings dated 28-12-1999 and 10-1-2000 informed the 1st respondent-Society that its application was referred to the Inspection Team for conduct of physical verification for finalising the case of the 1 st respondent in Kavali Revenue Division, Nellore District. The Inspection Team, after verification, submitted its report on 28-1-2000. The report of the Inspection Team was placed before the State Level Standing Committee and the Committee in its meeting held on 24-2-2000 examined the relative merits of the application of the 1st respondent society and that of the Hussaini Educational Society, Nellore, as per the guidelines issued in G.O. Ms. No.398, Education, dated 4-12-1987 and keeping in view the report of the physical verification submitted by the Inspection Team. The Committee after detailed scrutiny of both the applications opined that Hussaini Educational Society is relatively better equipped and placed in comparison to the 1st respondent society. In that view of the matter, the Committee resolved to clear the NOC already granted to Hussaini Educational Society and to reject the application of the 1st respondent-Society. Accordingly, the application of the 1 st respondent-Society was rejected by proceedings dated 25-2-2000 which was impugned in the Writ Petition No.4548 of 2000 praying for the following relief: -
"........to issue a writ, in the nature of a writ of mandamus or any other appropriate writ, direction or order declaring the proceedings Re. No.1479/ N2-2/99-2, dated 25-2-2000 of the Commissioner and Director of School Education, Andhra Pradesh, Hyderabad, as illegal and void and direct the Regional Committee of National Council for Teacher Education, Bangalore, to receive the application of the petitioner and consider the same for granting permission to establish the College of Education at Buchireddypalem, Buchireddypalem Mandal, Kavali Revenue Division, Nellore District, without insisting upon the production of the No Objection Certificate from the Government of Andhra Pradesh, and pass such order or orders as deemed fit and proper in the circumstances of the case".
5. On behalf of the 1st respondent/ petitioner, it was contended before the learned single Judge that the Government has no power to reject the application when once the petitioner has complied with all the conditions on the alleged ground of relative merit and on the other hand if the applicant fulfils all the conditions, the Government is bound to grant NOC to all the eligible applicants to enable the NCTE to assess the suitability or otherwise of the rival applicants to establish the college. It was also contended before the learned single Judge that the Government cannot assess the relative merits of the rival applicants for the purpose of issue of NOC. It was further contended that the 1st respondent/petitioner is better placed than that of the Hussaini Educational Society, Nellore viewed from any angle.
6. On behalf of the appellants/ respondents, it was contended that so far as Kavali Revenue Division is concerned the need was assessed for establishing one B.Ed., College and accordingly notification was issued for grant of one NOC. It was pointed out that in all eight applications were received in respect of Kavali Revenue Division for grant of NOC and all those applications were placed before the State Level Standing Committee for scrutiny and finalisation for issue of NOC. The State Level Standing Committee in the meeting held on 5-1-1999 scrutinised the applications and short-listed two registered educational societies, that is to say, Hussaini Educational Society Nellore and Samavesam of Telugu Baptist Church, Nellore for conduct of physical verification as they have satisfied and fulfilled the two primary conditions relating to the providing two hectares of land and mobilisation of Rs.5 lakhs corpus fund in the joint account of the District Educational Officer concerned and the registered educational society. It was contended that the other applications including that of the 1st respondent were rejected. It appears that having considered the applications of the two short-listed societies and upon assessment of relevant merits, the State Level Standing Committee resolved to issue NOC to Hussaini Educational Society, Nellore and accordingly NOC was issued to the said society vide proceedings dated 12-11-1999.
7. The learned single Judge, on consideration of rival contentions and taking into account the provisions of Sections 12 and 14 of the NCTE Act and Regulations 3, 4 and 5 of the Regulations 1995 came to the conclusion that NCTE is exclusively conferred with the jurisdiction to grant recognition under the NCTE Act and, therefore, the action of the State Government in assessing the relative merits of the applicants at the stage of granting NOC is beyond its power. The learned Judge also opined that though according to the State Level Standing Committee the Hussaini Educational Society is better placed in comparison to the 1st respondent-Society, the records do not show as to how and on what basis the State Level Standing Committee has arrived at such conclusion and recorded the opinion. In the light of these findings, the learned single Judge disposed of the writ petition directing the appellants herein to reconsider the application of the 1st respondent for grant of NOC forthwith and to issue NOC if it satisfies the requirements as provided in G.O. Ms.. No.398, Education, dated 4-12-1997. The learned single Judge while disposing of the writ petition has also observed that it is for the 2nd respondent herein to consider the application of the 1st respondent-Society in case NOC is granted by the appellants herein along with Hussaini Educational Society, Neilore for grant of recognition under the NCTE Act. Hence this writ appeal by the appellants questioning the legality and the validity of the findings recorded by the learned single Judge and the reliefs granted. The writ appeal was presented before this Court on 22-5-2000. The Division Bench issued notice before admission on 7-6-2000 and suspended the order of the learned single Judge for a period of two weeks in WAMP No.1188 of 2000. Subsequently, the Division 2001(4) FR--F-18 Bench admitted the appeal on 19-6-2000 and passed the following interim order:
"There shall be no stay. It is made clear that the NCTE shall grant recognition only to such number of institutes, which the State Government has to be fixed to be opened in the locality. The appeal is directed to be listed for hearing within six months".
When the matters stood thus, WP No. 1546 of 2001 was presented in this Court by Proddutur Development Trust for the relief already noticed above. The case of the petitioner- Trust, to state briefly, is as under:
8. The petitioner is a registered body, promoted by prominent persons of Proddutur Town. Among the promotees of the petitioner Trust are Doctors, Advocates, Auditors, Businessmen etc. The petitioner Trust was established in the year 1981 with the primary aim of promoting development of educational institutions in Proddutur Town. The Trust has also established and running several colleges viz., Rayalaseema College of Physical Education, Rani Tirumala Devi Degree College of Science and Kakatiya Junior College, in Proddutur. Said colleges were established by providing sufficient infrastructural facilities as contemplated under statutory provisions and rules and all the three institutions are being run on sound lines.
9. The petitioner trust was aiming to start a College of Education and in pursuance to a notification issued by the 2nd respondent Government dated 26-2-1998, the petitioner Trust applied for grant of 'No Objection Certificate' to obtain permission and recognition from the 1st respondent Committee which is constituted under the NCTE Act, to start a college under the name and style of VPR College of Education in Proddutur falling under Jammalamadugu Revenue Division of Cuddapah District.
The necessary inspection was conducted and on compliance of all the prescribed conditions, 'No Objection Certificate' was issued by the 3rd respondent, in the capacity of Chairman, State Level Standing Committee stating no objection for petitioner Trust to apply for recognition to start B.Ed., College. As per the notification issued by the 2nd respondent Government, only one college can be established in the Jammalamadugu Revenue Division and on compliance of the conditions, 'No Objection Certificate' was rightly issued to the petitioner Trust. The practice in vogue was granting 'No Objection Certificate' by the State authorities confining to one 'No Objection Certificate' to one applicant. But in Prakasham District, when one applicant was granted 'No Objection Certificate', the second applicant who was not granted 'No Objection Certificate' approached this Hon'ble Court by filing WP No.4548 of 2000 and this Court, by judgment dated 17-4-2000 has opined that by virtue of statutory provisions under the NCTE Act, 1993 and the rules made thereunder vis-a-vis the provisions of A.P. Educational Act, 1982, the State Government has no authority to restrict the grant of No Objection Certificate only to one person. In view of the same, NOCs were issued to all the persons who have complied with the conditions. In the Division of Jammalamadugu Revenue Division in Cuddapah District, only one college was notified and on the application made by the petitioner, the petitioner is granted 'No Objection Certificate' for seeking recognition. Another applicant, by name SSR Educational Society, Proddutur is also granted 'No Objection Certificate' by the State authorities. Consequent upon the grant of No Objection Certificate, the petitioner has submitted application to the NCTE on 29-12-2000 seeking recognition as contemplated under Section 14 of the Act and the petitioner was informed that they have to satisfy the conditions prescribed under Section 14(3)(a) of the Act by purchasing library, Laboratory equipment and to appoint staff even before the Inspection Committee makes inspection in this regard. The petitioner enclosed a detailed representation dated 27-12-2000 along with the application for recognition on 29-12-2000 reporting compliance of all the conditions and stating and giving assurance for purchase of library and laboratory equipment and appointment of staff on recognising the institution and by further stating that inasmuch as there are more than one applicant to be considered for grant of recognition, physical purchase of library and laboratory equipment at this stage cannot be insisted. It is claimed by the petitioner that as per the practice, provisional recognitions are granted with such conditions which are to be complied by the applicants only after the provisional recognition. In view of the same, compliance of all the conditions even before grant of provisional recognition cannot be insisted upon. Though no written orders are issued and communicated to the petitioner, on enquiry, it was informed that unless purchases are made with regard to library and laboratory equipment, and staff are appointed, the NCTE cannot grant provisional recognition.
10. Sri D. Prakash Reddy, learned Additional Advocate General appearing for the appellants in writ appeal and respondents in the writ petition would contend that the learned single Judge ought to have seen that as per clause 4(4) of G.O. Ms. No.398, Education, dated 4-12-1997 if for an area more number of applications are received with equal merit, then the relative merit of the applicants has to be considered, basing on the financial capacity of the Management for establishment of the College and the capacity of such Management to provide better other infrastructural facilities. The learned Additional Advocate General would further contend that the learned single Judge after observing that the State Government's jurisdiction to grant permission for establishing educational institutions including the institution offering or intending to offer a course in teacher education is in no way affected so far it relates to making of an assessment for providing such educational facilities to the people of the locality, ought to have dismissed the writ petition. The learned Counsel would further contend that the learned single Judge after observing that the State Government's jurisdiction and authority in identifying the need of the locality is in no way denuded by the NCTE Act ought to have dismissed the writ petition. It is also contended by the learned Counsel that the learned single Judge ought to have appreciated the fact that if the need of the locality is only one college and if only one No Objection Certificate has been issued and if the NCTE rejects the said application on any ground, the State Government would identify one more applicant as per the guidelines and the identified area will not be left without any institution. Lastly, the learned Additional Advocate General would submit that in the event of the Court not interfering with the order of the learned single Judge, at least a direction be issued to the NCTE to grant recognition only to such number of institutes which the State Government has fixed or has to be fixed to be opened in any locality.
11. Sri K. Subhash Reddy, learned Counsel appearing for the petitioner in WP No.1546 of 2001 would contend that there is absolutely no valid reason or justification for insisting for compliance of conditions regarding purchase of library, laboratory equipment and appointment of staff etc., even before granting recognition to the newly started colleges. The conditions specified in clause (a) of sub-section (3) of Section 14 of the NCTE Act cannot be insisted upon as conditions precedent for grant of provisional recognition at the stage of granting such recognition. The learned Counsel would further maintain that unless the petitioner is accorded recognition by the NCTE, its funds cannot be allowed to be spent for purchase of library, laboratory equipment and appointment of staff - ministerial and academic. Once provisional recognition is granted, all conditions will be complied within the stipulated time and inasmuch as the NCTE grants only provisional recognition initially, the insistence for compliance of conditions contemplated under Section 14(3)(a) at the stage of inspection itself by the Inspecting Committee for grant of recognition for colleges to be started newly is illegal, arbitrary and unworkable and it results in wastage of resources and causes great hardship to the applicants. In interpreting the provisions of Section 14(3)(a), the learned Counsel would maintain, the principle of 'purposive construction' should be adopted and if it is so adopted, it will be totally irrational and arbitrary to insist for compliance of the conditions specified under Section 14(3)(a) of the NCTE Act as a condition precedent even for applying for recognition and those conditions can be imposed while granting provisional recognition only. The learned Counsel would highlight that it is not feasible to recruit teachers and the other staff even before applying for recognition, and once appointments are made, it becomes obligatory on the part of the applicants to continue them in service and in the event of the NCTE not granting recognition, there will not be any need for the teachers and other staff and consequently that will result in unavoidable waste of limited resources and cause great hardship to the applicant Societies and Trusts. The learned Counsel would also support the stand taken by the State authorities in WP No.4548 of 2000 and maintain that if the power of the State Government to limit the number of NOCs in a locality is not recognised, that would result in no-good to everybody in the event of the NCTE not according recognition to an applicant.
12. Sri B. Adinarayana Rao, learned Standing Counsel for NCTE on instructions from the NCTE authorities would submit that the NCTE would grant recognition only to such number of institutes which the State Government has fixed. However, the teamed Standing Counsel would question the competence and authority of the State Government to assess the relative merits of the applicants at the stage of consideration of applications for grant of No Objection Certificates in terms of G.O. Ms. No.398, dated 4-12-1997.
13. We do not find any merit in the contentions of the learned Additional Advocate General. NCTE is a statutory authority under the provisions of the NCTE Act. NCTE is established with a view to achieving planned and co-ordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith. The NCTE is required to be established by the Central Government in exercise of the power conferred upon it under Section 3 of the NCTE Act. Section 12 of the NCTE Act deals with functions of the NCTE. Section 14 of the NCTE Act deals with the recognition of institutions offering course or training in teacher education. Section 12 reads:
12. Functions of the Council :--It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co-ordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, me Council may-
(a) undertake surveys and studies relating to various aspects of teacher education and publish the result thereof;
(b) make recommendations to the Central and State Governments, Universities, University Grants Commission and recognised institutions in the matter of preparation of suitable plans and programmes in the field of teacher education;
(c) co-ordinate and monitor teacher education and its development in the country;
(d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions;
(e) lay down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum;
(f) lay down guidelines for compliance by recognised institutions, for starting new courses or training, and for providing physical and instructional facilities, staffing pattern and staff qualifications;
(g) lay down standards in respect of examination leading to teacher education qualifications, criteria for admission to such examinations and schemes of courses of training;
(h) lay down guidelines regarding tuition fees and other fees chargeable by recognised institutions;
(i) promote and conduct innovation and research in various areas of teacher education and disseminate the results thereof;
(j) examine and review periodically the implementation of the norms;
guidelines and standards laid down by the Council, and to suitably advise the recognised institutions;
(k) evolve suitable performance appraisal systems, norms and mechanisms for enforcing accountability on recognised institutions;
(1) formulate schemes for various levels of teacher education and identify recognised institutions and set up new institutions for teacher development programmes;
(m) take all necessary steps to prevent commercialisation of teacher education; and
(n) perform such other functions as may be entrusted to it by the Central Government.
Section 14 reads:
14. Recognition of institutions offering course or training in teacher education:--(1) Every institution offering or intending to offer a course of training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations :
Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee.
(2) The fee to be paid along with the application under sub-section (1) shall be such as may be prescribed.
(3) On receipt of an application by the Regional Committee from any institution under sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall-
(a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that if 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 institutions does not fulfil the requirements laid down in sub-clause (a), pass an order refusing recognition to such institution for reasons to be recorded in writing :
Provided that before passing an order under sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a writing representation.
(4) Every order granting or refusing recognition to an institution for a course or training in teacher education under sub-section (3) shall be published in the Official Gazette and communicated in writing for appropriate action to such institution and to the concerned examining body, the local authority or the State Government and the Central Government.
(5) Every institution, in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of sub-section (3).
(6) Every examining body shall, on receipt of the other under subsection (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.
It is quite apparent from the reading of Section 14 that every institution offering or intending to offer a course or training in teacher education on or after the establishment of the NCTE under Section 3(1) of NCTE Act. Section 14(5) in categorical terms declares that every institution, in respect of which recognition has been refused, shall discontinue the course or training in teacher education. Sub-section (6) of Section 14 makes it imperative that every "examining body" thereby meaning a University, Agency or Authority to which an institution is affiliated for conducting examinations in teacher education, qualifications shall, on receipt of the order under sub-section (4) grant affiliation to the institution, where recognition has been granted. In the same manner, the examining body has to cancel the affiliation of the institution where the recognition has been refused. There is thus, no agency offering or intending to offer a course or training in teacher education shall be permitted to run any institution without recognition from NCTE. The examining body is placed under statutory duty to grant affiliation to the institution only after recognition has been granted by the NCTE and cancel the affiliation of even the existing institution, where recognition has been refused. It is clear that no institution can come into existence without its recognition by NCTE under Section 14 of the NCTE Act.
14. The NCTE has framed regulations in purported exercise of power under Section 32 of the NCTE Act and the regulations are known as the National Council for Teacher Education (Application for recognition, the manner for submission, determination of conditions for regulation of institutions and permission to start new course or training) Regulations, 1995 (for short 'the Regulations'). Regulation 3 deals with application for recognition and it provides that every institution offering a course or training in teacher education immediately before the 17th August, 1995 shall make an application for recognition under the Act to the Regional Committee in the prescribed form, whereas Regulation 4 deals with application for permission to start new course or training or increase in intake. Regulation 4 further would be applicable in cases where any recognised institution intends to start any new course or training in teacher education. It also deals with the application for permission, where any recognised institution intends to increase its intake of students beyond the intake already approved for such course or training. Regulation 5 provides the manner of making application. Under sub-clause (c) of Regulation 5, every institution intending to offer a course or training in teacher education but was not functioning immediately before the 17th August, 1995 shall submit application for recognition with a 'No Objection Certificate' from the State or Union Territory in which the institution is located. Sub-clause (f) provides that application for permission to start new course or training and/or to increase intake by recognised institutions, shall be submitted to the Regional Committee concerned with No Objection Certificate from the State or Union Territory in which the institution is located. Thus, it is clear that every institution intending to offer a course or training in teacher education shall have to obtain No Objection Certificate from the State or Union Territory in which the institution is located and submit the same along with the application for recognition. Such No Objection Certificate is required to be obtained even in cases for permission to start new course or training and/or to increase intake by the institutions, which are already recognised by the NCTE. A combined reading of Sections 12 and 14 of the NCTE Act and Regulations 3, 4 and 5 of the Regulations, 1995 make it abundantly clear that NCTE is exclusively conferred with the jurisdiction to grant recognition under the Act and makes it obligatory for every institution offering or intending to offer a course or training in teacher education to apply for and obtain such recognition from the NCTE. The examining body is prohibited from granting any affiliation to the institutions where recognition has been refused and is directed to grant affiliation to the institutions where recognition has been granted. Thus the recognition is sine qua nan for running every institution offering or intending to offer a course or training in teacher education.
15. The NCTE Act and the regulations framed thereunder do not deal with the establishment and permission to establish institutions offering or intending to offer a course or training in teacher education. Andhra Pradesh Education Act, 1982 (Act 1 of 1982 hereinafter called the 'Education Act'), deals with the permission to be obtained by an agency for establishing educational institution. Educational institutions in term of the definition of "educational institution' as defined under Section 2(18) of the Education Act includes institutions offering or intending to offer a course or training in teacher education also. Section 20 of the Education Act deals with permission for establishment of educational institutions. It reads:--
20. Permission for establishment of educational institutions :--(1) The competent authority shall, from time to time, conduct a survey as to identify the educational needs of the locality under its jurisdiction, and notify in the prescribed manner through the local newspapers calling for applications from the educational agencies of establishing educational institutions.
(2) In pursuance of the notification under sub-section (1), any educational agency including local authority or registered body of persons intending to-
(a) establish an institution imparting education;
(b) open higher classes in an institution imparting primary education; or
(c) upgrade any such institution into a High School;
(d) open new courses (certificate, diploma, degree, post-graduate degree courses, etc.,) may make an application, within such period, in such manner and to such authority as may be notified for the grant of permission therefore.
(3) Any educational agency applying for permission under sub-section (2) shall,--
(a) before the permission is granted, satisfy the authority concerned-
(i) that there is need for providing educational facilities to the people in the locality;
(ii) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority;
(iii) that the institution is proposed to be located in sanitary and healthy surrounds;
(b) enclose to the application:--
(i) title deeds relating to the site for building, playground and garden proposed to be provided;
(ii) plans approved by the local authority concerned which shall conform to the rules prescribed, therefore; and
(iii) documents evidencing availability of the finances needed for constructing the proposed buildings; and,
(c) within the period specified by the authority concerned in the order granting permission,--
(i) appoint teaching staff qualified according to the rules made by the Government in this behalf;
(ii) satisfy the other requirements laid down by this Act and the rules and orders made thereunder failing which it shall be competent for the said authority to cancel the permission.
(4) On and from the commencement of the Andhra Pradesh Education (Amendment) Act, 1987 no educational institution shall be established except in accordance with the provisions of this Act and any person who contravenes the provisions of this section or who after the permission granted to him under this section having been cancelled continues to run such institution shall be punished with simple imprisonment which shall not be less than six months but which may extend to three years and with fine which shall not be less than three thousand rupees but which may extend to fifty thousand rupees:
Provided further that the Court convicting a person under this section shall also order the closure of the institution with respect to which the offence is committed.
16. As could be seen from the provisions of Section 20 of the Education Act, that section provides that as to what matters have to be taken into consideration by the authority concerned while granting permission for establishing educational institutions. Sub-section (3) of Section 20 of the said Act inter alia provides that one of the matters to be taken into consideration by the authority concerned is that there is need for providing educational facilities to the people in the locality. As per the judgment of this Court in Government of Andhra Pradesh v. J.E. Educational Society, (DB), the word "locality" with grammatical variations, has to be assumed to be "District", according to which, the State Government has power to grant/refuse permission for establishing educational institutions and it includes the revenue divisions. However, it is pertinent to notice that after 1-7-1995 that position is radically altered. Under the NCTE Act, the NCTE is the competent authority to grant recognition and the role of the State Government is minimised. In other words, the role of the State Government in the matter of establishing educational institutions offering a course or training in teacher education is now restricted to grant of no objection certificate.
17. Consequent upon the enactment of NCTE Act by Parliament, the State Government after taking into account the relevant factors into consideration formulated its policy and issued G.O. Ms. No.398, Education, dated 4-12-1997 incorporating the guidelines covering the entire field relating to the grant of No Objection Certificate. G.O. Ms. No.398 reads:
Government of Andhra Pradesh Abstract Colleges of Education - Opening of B.Ed., Colleges in the State - Recommendations of the Review Committee - Orders -Issued Education (Trg.I) Department G.O. Ms. No.398 Dated 4-12-1997 Read the following :
1. From the C&DSE Letter Re. No.Spl./ N2/97, dated 11-7-3997
2. G.O. Rt. No. 1168, Education (Trg-I) Department, dated 2-8-1997.
ORDER:
A number of writ petitions have been filed in the Courts for sanctioning of B.Ed., Colleges and also large number of applications have been received by the Government for according permission to start Colleges of Education.
2. Commissioner and Director of School Education has suggested in the reference 1st read above to reconsider the decision of the Government in sanctioning new B.Ed., Colleges since teaching also is one of the preferred choices Government Institutions, but also in Private Institutions as graduates were appointed as teachers in recent recruitment of teachers conducted by the Department of School Education and by the Private Managements. Further the large number of applications being received for the B.Ed., seats itself also speak of the demand to take up the review of the policy decision of 1990. Therefore, it is felt that there is need to review of the policy decision, in order to provide educational opportunities in backward and uncovered districts and to eliminate/reduce exploitation of the students by private Managements. It is also proposed to evolve a framework for a regulatory mechanism in regard to all B.Ed., Colleges to eliminate exploitation. In this background, Government have constituted a Committee in the reference 2nd read above to evolve guidelines to eliminate the exploitation of students by the private Managements, to provide educational facilities in backward and uncovered districts and for review of the earlier policy decision.
3. The Committee submitted its report to Government on 22-10-1997. The report has been placed before the Council of Ministers in their meeting held on 15-11-1997 for their consideration. Government, after careful consideration of the recommendations of the Committee and the resolution of the Cabinet hereby issue the following orders:-
(i) The Government of India has brought the NCTE on the Statute Book by Act No.73 of 1993 (Central Act) and published in the Gazette of India. The Act came into force from 1-7-1995 and the Council has been established with effect from 17-8-1995. The guidelines and the provisions formulated by the NCTE are to be followed by the State Government.
(ii) As per the NCTE guidelines, the State Government is only vested with the power to issue a "No Objection Certificate". The need for establishment of B.Ed., Colleges/ Pandit Training Institutes have to be verified and satisfied by the State Government before issuance of "No Objection Certificate".
(iii) Government hereby constitute State Level Standing Committee (University-wise) with the following members to assess the educational needs of the locality, receive and scrutinise the applications and for issue of "No Objection Certificate" on behalf of State Government.
(1) Director of School Education -Chairman and Convenor (2) Nominee of Vice-Chancellor -Member (Jurisdiction of respective University) (3) J.S/D.S of Education Department -Member dealing with the subject and training.
(iv) The Committee shall look into all the relevant aspects including the following before issue of the "No Objection Certificate".
(a) The need should be assessed strictly District-wise and Revenue Division-wise and in terms of the total children in the school going age i.e., 5-9, 10-14 years.
(b) The issue of regional distribution is also to be looked into to ensure that the backward regions shall get a fair/deal. The issue of training more women teachers is also to be taken care of in order to achieve the policy of the Government in regard to reservation of women.
(c) The requirement of the number of teachers shall be worked out as one for every 30 students in Primary Sections and one for 10 students in Secondary Sections. This formula shall be adopted for assessment of the number of teachers (gross) required and after assessment (gross) the total number of teachers available in Government/Local Body and Private Sector and also the number of candidates available in the live register of District Employment Exchange shall be taken into account for arriving the number of teachers required (net).
(d) Once the need for the number of Colleges of Education in a Revenue Division/District is assessed, the Director of School Education shall invite the applications from the Registered Societies through a transparent system, by way of Newspaper notification. Applications shall be called for in December every year and the same shall be entertained by the Committee for starting the new institutions, for succeeding academic year.
(e) The Director of School Education shall give wide publicity in the locality (District/Revenue Division) calling for the applications with all required data indicating the number of colleges likely to be permitted in the area.
(f) The Committee shall satisfy the fulfilment of requirement of providing the land, corpus fund and buildings by the applicant. The requirement of the land will be 2 hectares and shall be registered in the name of the applicant society as owner. The corpus fund of Rs.5.00 lakhs is to be provided in addition to the other guidelines under the NCTE. The corpus fund shall be deposited in the National Savings Certificates/Fixed Deposits in the Post Office/any Nationalised Bank in the joint account of the Society and District Educational Officer. The attested copy of the Certificate/FDR from the Post Office/Nationalised Bank is to be enclosed to the application. The major conditions of the land and corpus fund are to be fulfilled by the time of submission of applications. The applicant can proceed with the construction of building/provision of infrastructure after obtaining No Objection Certificate.
(g) The applicants (Managements) who is having experience in the field of Education (running the schools and colleges etc., with reputation) shall be given preference. The applications shall be rejected where the Managements are involved in criminal or other offences.
(h) If for any area more number of applications are received with equal merit, the following points shall be considered for assessment of relative merits-
a. Capacity of the management to incur the required expenditure for establishment of the College of Education shall be assessed;
b. The capacity of the Management to provide better infrastructure also shall be considered;
c. Even after doing all the above analysis, if, more than the required number of applications (Managements) are to be considered for specific area/place, the selection is by lottery (dip system shall be followed). The lottery shall be conducted in the presence of the concerned applicants.
(i) The State Level Committee (University-wise) shall cause inspection or inspect the site for the proposed college and satisfy with the capacity of the management for providing infrastructure.
(j) On the basis of the recommendations of the Committee, the Director of School Education on behalf of the State Government, will issue NOC to the deserving applicants. The deserving applicant, after obtaining NOC, shall make an application to NCTE. The NCTE on receipt of the application will inspect- the availability of infrastructure provided by the Management and after satisfying itself about the capability of the Management to run the college with required standards of teaching may accord permission/ recognition. After obtaining the same, from the NCTE, the college shall be started.
(k) The allotment of the candidates shall be made by the Convenor, EDCET year after year.
(1) The number of seats in a College of Education shall be limited to 120 (one hundred and twenty)
(m) The Director of School Education shall take steps to prosecute the Institutions in accordance with law which function without NCTE permission, under Education Act read with NCTE Act. The Universities shall not entertain such candidates for examinations. The Registrar of the respective University shall be held responsible for any default in this regard.
4. Government also hereby order that the Director of School Education shall formulate regulatory mechanism including conduct of audit to prevent exploitation of students/mis-management etc. The Director of School Education shall cause annual inspection of the private aided and un-aided Colleges of Education so as to ensure effective management of the affairs of the College/ Institutes and to avoid mis-management.
5. The above enunciated policy and orders shall apply mutatis mutandis to all the Physical Education and Pandit Training Institutes also. However the NCTE guidelines insofar as they are applicable to Elementary Teacher Education Institution will apply for these Institutes.
6. The Director of School Education shall take further necessary action in the matter.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) M.V.P.C. Sastry Secretary to Government To The Director of School Education, Hyderabad.
Copy to Dy. Secretary to Chief Minister.
PS to M(SE) /Forwarded: By Order/ Sd/-
Section Officer".
As could be seen from the provisions of G.O. Ms. No.398, Education, dated 4-12-1997, it clearly recognises that the State Government is only vested with the power to issue No Objection Certificate. The Government constituted State Level Standing Committee (University-wise) under the GO has to assess the educational need of the locality and to receive and scrutinise the applications for issue of No Objection Certificate. The guidelines deal with how the applications are to be invited, scrutinised and processed by the State Level Standing Committee for the purposes of issuing No Objection Certificate, It is true that the validity of the G.O. Ms. No.398, is not assailed in the writ petition. But, it goes without saying, that the guidelines contained in G.O. Ms. No.398 have to be so read as to be in conformity with the provisions of the NCTE Act and the regulation made thereunder, so as to avoid any repugnancy. It is also true that there is no provision in the NCTE Act enabling the NCTE to make any assessment about the need for providing a course or training in teacher education to the people in a locality. Section 14 of the NCTE Act enables the NCTE to grant recognition of institutions offering the course or training in teacher education. 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 prescribed by the regulations framed under the NCTE Act. It is also true that the regulations do not touch upon the aspect relating to assessment of educational needs in providing a course or training in teacher education in a'locality as such. Therefore, it cannot be said that the State Government's jurisdiction to grant permission for establishing educational institution including the institution offering or intending to offer a course or training in teacher education is affected in any way insofar as it relates to making of an assessment for providing such educational facilities to the people in a locality. However, the State Government's role after the enactment of the NCTE Act is mainly restricted to the aspect relating to the need for establishment of institutions offering or intending to offer a'course or training in teacher education. In other words, the State Government is still entitled to make an assessment about the need for establishment of such institutions offering or intending to offer a course or training in teacher education. In that view of the matter, the finding recorded by the learned single Judge that the State Government's jurisdiction and authority in that regard is in no way denuded by the subsequent NCTE Act is unexceptionable. However, under the guise of assessing the need for establishment of such institutions, the State Government cannot go into the relative merits of the applicant at the stage of consideration of the application for grant of no objection certificate and limit the number of applications to the number of institutions determined by the State Government in a locality regardless of the fact that an applicant who is denied No Objection Certificate has fulfilled all the norms and conditions specified under G.O. Ms. No.398. The assessment of relative merits of the applicants for grant of recognition falls within the exclusive domain of the NCTE by virtue of the power conferred upon it by Section 14 of the NCTE Act. The NCTE alone is entitled to scrutinise as to whether an institution which intends to offer a course or training in teacher education has adequate financial resources, accommodation, library, qualified staff, laboratory and fulfils such other conditions required for proper functioning of the institution as may be specified by the regulations framed under the NCTE Act. Any contrary view would offend the very object and scheme of the NCTE Act and the authority conferred by it on the NCTE.
18. We also do not find any merit in the contentions urged by the learned Counsel for the petitioner in WP No. 1546 of 2001. The submission of the learned Counsel for the petitioner therein is that while construing the provisions of Section I4(3)(a) of the NCTE Act, the rule of "purposive construction" should be applied. When the material words in a statute are capable of bearing two or more considerations the most firmly established rule for construction of such words is the rule in Heydon's case, (1584) Co.Rep. la, P.7b = 76 ER 637, which has now attained the status of a classic as opined by the Supreme Court in Kanailal Sur v. Paramnidhi Sadhukhan, . In Anderton v. Ryan, (1985) 2 AII.ER 355, it was held that the rule in Heydon 's case which is also known as 'purposive construction' or "mischief rule", enables consideration of four matters in construing an Act: (i) What was the law before the making of the Act; (ii) What was the mischief or defect for which the law did not provide; (iii) What is the remedy that the Act has provided; and (iv) What is the reason of the remedy. The rule then directs that the Courts must adopt that construction which shall suppress the mischief and advance the remedy. This rule was explained in the Bengal Immunity Co. v. State of Bihar, , by S.R. Das, C.J., as follows:
"It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case (supra) was decided that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
1st - What was the common law before the making of the Act.
2nd - What was the mischief and defect for which the common law did not provide.
3rd - What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and 4th - The true reason of the remedy;
and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico".
The Supreme Court in Bengal Immunity Co. case (supra) applied the rule in construction of Article 286 of the Constitution. After referring to the state of law prevailing in the Provinces prior to the Constitution as also to the chaos and confusion that was brought about in inter-State trade and commerce by indiscriminate exercise of taxing powers by the different provincial Legislatures founded on the theory of territorial nexus S.R Das, C.J., proceeded to say: "It was to cure this mischief of multiple taxation and to preserve the free flow of inter-State trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the Constitution-makers adopted Article 286 in die Constitution". The rule was again applied by the Supreme Court in similar context while construing the changes brought about by the Constitution 46th Amendment Act in Goodyear India Ltd v. State of Haryana, .
19. As per the rule of "purposive construction", the Parliament is presumed to intend that in construing an Act the Court, by advancing the remedy which is indicated by the words of the Act for the mischief being dealt with, and the implications arising from those words, should aim to further every aspect of the legislative purpose, construction which promotes the remedy Legislature has provided to cure a particular mischief. In Section 304 of Statutory Interpretation by Francis Bennion dealing with nature of purposive construction, it is stated:
"A purposive construction of an enactment Is one which gives effect to the legislative purpose by-
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)."
In the same section, it is further stated:
"When Judges speak of a purposive construction, they usually mean to refer to what this Code calls a purposive - and strained construction. Thus we find Staughion, L, referring to the 'power of the Courts to disregard the literal meaning of an Act and to give it a purposive construction, A-G of Newzealand v. Ortiz, (1982) QB 349. Lord Diplock spoke of 'competing approaches to the task of statutory construction - the literal and the purposive approach' Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd, (1971) AC 850. Nevertheless a purposive construction must obviously be in all cases a construction which gives effect to the legislative intention, whether or not the statutory language needs to be strained to achieve this. Most often a purposive construction, in the true sense, will be a literal construction.
In Carter v. Bradbeer, (1975) 1 WLR 1204, Lord Diplock observed that 'if one looks back to the actual decisions of the House of Lords on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions. The matter was summed up by Lord Diplock in this way-
"......I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a Court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd, v. Zenith Investments (Torquay) Ltd., (1971) AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a Court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed" Jones v. Wortham Park Settled Estates, (1980) AC 74.
Thus, it is quite clear that an interpretation must in the last resort either be literal or strained. A purposive construction must be either purposive-and-literal or purposive-and-strained. The third type of construction is non-purposive-and-literal. A construction is purposive-and-literal (a) where the literal meaning is clear and reflects the purpose or (b) where the literal meaning is grammatically ambiguous and one of the possible grammatical meanings reflects the purpose. The purposive-and-literal is the commonest construction, for usually a literal construction and a purposive construction lead to the same result. Dillon LJ in R v. Poplar Coroner, (1993) QB 610, has opined that a construction where the purposive factor was allowed too much weight in departing from the literal meaning has been called 'over-purposive'.
20. Now let us advert to the provisions of Section 14(3)(a) of NCTE Act. Provisions of clause (a) of sub-section (3) of Section 14 empowers the NCTE to grant recognition to an institution if it is satisfied mat such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other I conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations. The prescription made in clause (a) of sub-section (3) should exist in present! and those prescriptions are not prescriptions to be attended in future. In other words, before the NCTE grants recognition the applicant should possess the infrastructure facilities prescribed in clause (a) of sub-section (3). They are conditions precedent for grant of recognition. The provisions of clause (a) of subsection (3) of Section 14 are quite clear, precise, unambiguous and do not admit more than one meaning. If that is so, the question that falls for consideration is whether it is permissible for the Court to apply the rule of purposive construction and distort the language. It is trite to state that Section 14 and in fact the whole of NCTE Act is designed to protect the community of students and to see that the students admitted to the teaching educational institutions should have proper and required infrastructure and teaching facilities. If this legislative objective and design is kept in mind, there is no scope to apply the rule of purposive construction and to hold that the NCTE cannot insist for compliance of the conditions specified under clause (a) of sub-section (3) of Section 14 of the Act as a condition precedent for consideration of applications for grant of recognition. It is the duty of the Court to accept the purpose decided by the law-maker which purpose does not offend the Constitution. This applies even where the Court considers the result unjust, provided it is satisfied that law-maker really intend that result. It is quite often said and reiterated that the function of the Court is faithfully to carry out what Legislature has decreed. The rules of interpretation are designed only to settle real doubt as to legislative intention. Therefore, where the intention is plain, it must be implemented. In Section 309 of Statutory Interpretation by Francis Bennion, it is observed:
"It is fundamental to our modern Constitution that the judiciary owe a duty of loyalty to Parliament. Their (unction is faithfully to carry out what Parliament has decreed. The criteria developed to guide interpretation are designed only to settle real doubt as to legislative intention. Where the intention is plain, it must be implemented. Obviously a particular Judge may find the policy of an enactment not to his personal liking. It is axiomatic that he must resolutely thrust aside such considerations when arriving at his decision. What may not be so obvious is that the Judge, once he or she feels certain of the intention, must also put aside more general considerations. An enactment may strike him or her as on any view unjust. That cannot affect the judicial duty. Parliament does sometimes do unjust things".
Lord Scarman in Duport Steels Ltd v. Sirs, (1980) 1 WLR 142, was pleased to sum up the position.
".......In the field of statute law the Judge must be obedient to the will of Parliament as expressed in its enactments. In this field Parliament makes and unmakes the law (and) the Judge's duty is to interpret and to apply the law, not to change it to meet the Judge's idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing constructions are possible. But our law requires the Judge to choose the construction which in his judgment best meets the legislative purpose of the enactment. If the result be unjust but inevitable, the Judge may say so and invite Parliament to reconsider its provision. But he must not deny the statute. Unpalatable statute law may not be disregarded or rejected, merely because it is unpalatable. Only if a just result can be achieved without violating the legislative purpose of the Statute may the Judge select the construction which best suits his idea of what justice requires."
Therefore, in the instant case, having due regard to the plain clear provisions of Section 14(3)(a), the rule of purposive-and-literal construction has to be applied. If it is so applied, the submission of the learned Counsel for the petitioner in WP No.1546 of 2001 has to be rejected. We accordingly reject the contention. Further more, the hardship that may be caused to an applicant in the event of NCTE not granting recognition, under Section 14 of the NCTE Act cannot be a ground or circumstance to distort the clear, plain and unambiguous language employed in clause (a) of sub-section (3) of Section 14 of the Act. That circumstance itself is not a valid ground to apply the 'Purposive construction' rule.
21. In the result and for the foregoing reasons and having regard to the fair submission made by the learned Standing Counsel for the NCTE that the NCTE would grant recognition only to such number of institutes which the State Government has fixed, we dispose of this writ appeal and the writ petition with the following directions:
(i) The NCTE alone is entitled to assess the relative merits of the applicants for recognition and it is not permissible for the State Government to assess relative merits of the applicants for 'No Objection Certificate' at the stage of consideration of the applications for grant of No Objection Certificates. The State Government is bound to grant to objection certificate to those applicants who fulfil the norms and conditions specified in G.O. Ms. No.398, Education, dated 4-12-1997.
(ii) The NCTE, Southern Regional Committee, Bangalore, while granting recognition under Section 14(3)(a) of the NCTE Act, shall grant recognition only to such number of institutions which the State Government of Andhra Pradesh has fixed.
(iii) In the facts and circumstances of the case, the parties shall bear their own costs both in writ appeal and writ petition.
(iv) The judgment and order of the learned single Judge dated 17-4-2000 made in WP No.4548 of 2000 accordingly shall stand modified in terms of the above directions and in all other respects the order of the learned single Judge shall remain unaltered.