Gujarat High Court
Experimental College Of Education vs Hemchandracharya North Gujarat ... on 16 September, 2016
Equivalent citations: AIR 2017 (NOC) 445 (GUJ.)
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/14532/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14532 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14554 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14727 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 14731 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14732 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14734 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 14737 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14742 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 14746 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14747 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 14749 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14780 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14797 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 14801 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14869 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 14871 of 2016
With
SPECIAL CIVIL APPLICATION NO. 15460 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 15463 of 2016
With
Page 1 of 30
HC-NIC Page 1 of 30 Created On Fri Oct 07 01:14:26 IST 2016
C/SCA/14532/2016 CAV JUDGMENT
SPECIAL CIVIL APPLICATION NO. 15611 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 15612 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
EXPERIMENTAL COLLEGE OF EDUCATION....Petitioner(s)
Versus
HEMCHANDRACHARYA NORTH GUJARAT UNIVERSITY &
2....Respondent(s)
==========================================================
Appearance in Special Civil Application Nos.14532/2016, 14732/2016,
14734/2016 to 14737/2016, 15611/2016 to 15612/2016:
MR SHALIN MEHTA, LD. SR. ADVOCATE WITH MR HARSH K THAKAR,
ADVOCATE for the Petitioner(s) No. 1
Appearance in Special Civil Application Nos.14554/2016, 14727/2016 to
14731/2016
MS BHOOMI THAKORE, ADVOCATE for the Petitioner(s) No. 1
Appearance in Special Civil Application Nos.14742/2016 to 14746/2016
MR VALMIK M VYAS, ADVOCATE for the Petitioner(s) No. 1
Appearance in Special Civil Application Nos.14747/2016 to 14749/2016,
14780/2016
MR P.C. KAVINA, SR. ADVOCATE WITH MR DIPAK B PATEL, ADVOCATE
Page 2 of 30
HC-NIC Page 2 of 30 Created On Fri Oct 07 01:14:26 IST 2016
C/SCA/14532/2016 CAV JUDGMENT
for the Petitioner(s) No. 1
Appearance in Special Civil Application Nos.14797/2016 to 14801/2016
MR MOHIT P PATHAK, ADVOCATE for the Petitioner(s) No. 1
Appearance in Special Civil Application Nos.14869/2016 to 14871/2016,
15460/2016 to 15463/2016
MR DHAVAL M PATEL, ADVOCATE for the Petitioner(s) No. 1
Appearance in all the petitions
MR BHARGAV PANDYA, AGP ON ADVANCE COPY for the Respondent(s)
No. 3
MR SIDDHARTH H DAVE, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date :16/09/2016
CAV JUDGMENT
The central theme of the controversy and the question posed for consideration in the present batch of petitions is whether it is permissible for the respondent University to restrict the admission to B.Ed. course in the petitioner institutions to the limited seats, when the National Council for Teacher Education has approved the intake capacity for 100 students; whether the University was competent to put up instruction while notifying the admission programme asking the petitioner not to fill up the seats beyond 50, and thereby vetoing the intake approved by the National Council for Teacher Education (NCTE).
2. In all the petitions the respective petitioner institution is allowed the intake capacity of 100 students in the B.Ed. course by the NCTE for the Academic Year 2016-17, which is sought to be restricted by respondent No.1-Hemchandracharya North Page 3 of 30 HC-NIC Page 3 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT Gujarat University to 50 seats. The annual intake of 100 students is allowed by the NCTE divided into two basic units of 50 seats each. The petitioners pray to declare as illegal the action on part of the University in not allowing the intake of 100 students to the B.Ed. course for Academic Year 2016-17. The petitioners have prayed for a direction against the University to allocate students in the second unit as per the total intake allowed by the NCTE. 2.1 On 09th September, 2016 the following order was passed while reserving the judgment in the petitions.
"Heard learned senior counsel Mr.Shalin Mehta with learned advocate Mr.Harsh K. Thakkar, learned senior advocate Mr.Percy Kavina with learned advocate Mr.Dipak B. Patel, learned advocate Ms.Bhoomi Thakore, learned advocate Mr.Valmik M. Vyas, learned advocate Mr.Mohit P. Pathak and learned advocate Mr.Dhaval M. Patel for the petitioners in respective petitions, learned advocate Mr.Siddharth H. Dave for the respondent- Hemchandracharya North Gujarat University in all the petitions, learned advocate Mr.P.C. Champaneri for NCTE in all the petition and learned Assistant Government Pleader Mr.Bhargav Pandya for the State in all the petitions, in extenso.
2. It was stated by learned advocates appearing for the parties that pleadings are completed and they do not want to file any further pleadings. Documents tendered by learned advocate Mr.Champaneri for the Council in support of his averments are taken on record and shall be part of the record.
3. All the learned advocates at the end of the hearing submitted that petitions may be treated as finally heard since it was heard extensively.
4. In view of the aforesaid position and the request, reserved for judgment.
5. It was stated that admissions are to close on 10th September, 2016. It is observed that the admissions shall be abide by the final order which may be passed in the petitions."
3. The facts in each of the captioned petitions Page 4 of 30 HC-NIC Page 4 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT run parallel. Taking the facts representatively from Special Civil Application No.14532 of 2016, the petitioner therein-the Experiment College of Education, Prantij offers the courses in B.Ed. and M.Ed. The said petitioner is stated to be the first college in the District of Sabarkantha imparting B.Ed. education, and claims to be one of the first top 10 colleges in the State. The respondent NCTE by its order dated 12th October, 2001 granted recognition to the petitioner for conducting B.Ed. course with annual intake of 100 students. The petitioner is affiliated to the respondent No.1 University and with such recognition from NCTE and the affiliation by the University, impart the B.Ed. education.
3.1 The aforementioned order dated 12th October, 2001 is on record of the petition to suggest that the same was an order granting recognition by exercise of powers vested in NCTE under Section 14(3)(a) of the National Council for Teacher Education Act, 1993 ('NCTE Act' for sake of brevity). The recognition as originally granted was from the Academic Session 2001- 02 with an annual intake of 60 students as permitted at the relevant time, subject to fulfilling the conditions mentioned in the order. The recognition and impartation of training in the B.Ed. course continued for succeeding Academic Years.
3.2 On coming into force of National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2014 the petitioner was made to abide by requirements contained therein. The NCTE appears to Page 5 of 30 HC-NIC Page 5 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT have intimated the petitioner about the applicability of said Regulations of 2014, upon which the petitioner complied with the formalities. The B.Ed. course which was of one year duration, came to be converted into two years training course. The petitioner institution was allowed additional unit of 50 students taking the approved strength to total 100 divided into two units of 50 each.
3.3 The revised order passed by the Regional Director, NCTE dated 31st May, 2015 subsequent to operation of Regulations of 2014, forming part of the record, is usefully extracted hereinbelow.
"National Council For Teacher Education (A Statutory Body of the Government of India) Western regional Committee F.NO.WRC/APW02627/323310/2015/145082 Date 31/05/2015 TO BE PUBLISHED IN GAZETTE OF INDIA PART III SECITON 4 Revised Order Whereas, in exercise of the powers conferred by sub- section (2) of Section 32 of the National Council for Teacher Education Act, 1993 (73 of 1993), and in supersession of the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2009, the National Council for Teacher Education has notified the Regulations, 2014 on 01.12.2014.
2. And whereas, the Jivan Jyot Education Trust, Valam, At Valam Ta. Visnagar, District-Mehsana 384330 Gujarat by affidavit dt. 13.01.2015 has consented to come under new Regulations and sought for two basic units in B.Ed., which require additional facilities.
3. And whereas, it has been decided to permit the institution to have two basic units of 50 students each subject to the institution fulfilling following conditions namely, I. The institution shall create additional Page 6 of 30 HC-NIC Page 6 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT facilities that include (a) additional built-up area, (b) additional infrastructure, (c) additional funds, (d) additional staff as per Regulations, 2014 and inform Regional Committees with required documents by October 31, 2015.
II. The applicant-institution for additional unit will be required to submit the required documents such as land documents, Encumbrance Certificate (EC), Land Use Certificate (LUC), Building Plan (BP) and the Approved Staff List in the specified proforma available on the website to the Regional Committee in proof of having provided additional facilities before October 31, 2015. Building Completion Certificate (BCC) may be given along with other documents, if available, otherwise it can also be given to the Visiting team at the time of inspection.
III. The Regional Committees shall arrange for verification of documents, inspection of these preemies and check adherence to these conditions by 20 Feb, 2016. If it is found by the Regional Committee that the institution fails to comply with these requirements, the institutions shall not be permitted to admit students for the academic year 2016-2017.
IV. In case any existing institution's matter is sub-judice under court direction/SCN under section 17 of the NCTE Act/Complaint etc., the institution shall be required to submit a copy of the Hon'ble Court order/reply to SCN/complaint/already submitted along with the documents, if any together the documents referred above. In case the institution's request for shifting of premises is pending, such institutions shall be required to submit the requisite documents as per provisions of the NCTE Regulations, 2014 with a copy of the order/NOC of the affiliating body/State Govt. and such other documents as indicated in the revised formal recognition order. The final decision shall be subject to the directions given by the Hon'ble Court in the Writ petition/case decided by the Western Regional Committee in respect of Section 17/complaint cases etc.
4. Now therefore, in the light of the above and in accordance with the NCTE Regulations, 2014, the Western Regional Committee (NCTE) hereby issues the revised recognition order, to Jivan Jyot Education Trust, Valam, At-Valam Ta.-Visnagar, District- Mehsana-384330 Gujarat for conducting B.Ed. programme Page 7 of 30 HC-NIC Page 7 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT of two years duration with annual intake of 100 students (two basic units of 50 students each) from the academic session 2015-2016 subject to fulfillment of the conditions mentioned herein before 31.10.2015.
5. Further, the recognition is subject to fulfillment of other requirements as may be prescribed by other regulatory bodies like UGC, affiliating University/Body, the State Government etc. as applicable. The affiliating body (University/State Govt.) shall also be required to verify the authenticity of the land & building documents as well as appointment of requisite teaching & non-teaching staff as per provisions of the NCTE Regulations, 2014 by the concerned institution before grant of affiliation to an institution.
6. The institution shall submit to the Regional Committee a Self-Appraisal Report at the end of each academic year along with the statement of annual accounts duly audited by a chartered accountant.
7. The institutions shall maintain & update its web-site as per provisions of NCTE Regulations and always display following as mandatory disclosure:-
a) Sanctioned programmes along with annual intake in the institution.
b) Name of faculty and staff in full as mentioned in school certificate along with their qualifications, scale of pay and photograph.
c) Name of faculty members who left or joined during the last, quarter.
d) Names of students admitted during the current
session along with qualification, Percentage of
marks in the qualifying examination and in the
entrance test, if any, date of admission etc.
e) Fee charged from students
f) Available infrastructural facilities
g) Facilities added during the last quarter.
h) Number of books in the library, journals
subscribed and additions, if any, in the last quarter.
i) The affidavit with enclosure submitted along with application.
j) The institutions shall be free to post Page 8 of 30 HC-NIC Page 8 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT additional relevant information, if it so desires.
k) Any false or incomplete information on website shall render the institution liable for withdrawal of recognition.
It institution contravenes any of the above conditions or the provision of the NCTE Act, Rules, Regulations or orders made and issued there under, the institution will render itself liable to adverse action including withdrawal of recognition by the Regional Committee under the provisions of Section 17(1) of the NCTE Act, 1993.
8. Recognition order no. WRC/5-6/E-87/2006/7937 dt. 31.08.2006 be treated as cancelled from the date of issue of this revised order.
By Order, (Sunil Shrivastava) Regional Director"
3.4 The aforesaid revised order bear different dates in case of different petitioners, which uniformly allowed intake of 100 students divided into two basic units from the Academic Session 2015-16. The said order and the approval undeniably continue to hold good for the current Academic Year 2016-17. All the petitioners figure in the list of recognized institution for the Academic Year 2016-17 and enjoy the intake capacity of 100 seats as per the revised order of NCTE. All the petitioner institutions have got recognition and affiliation by the NCTE and the University respectively. They are similarly placed to be able to be group for their petitions and for consideration of their case by this common judgment.
3.5 Though the intake capacity for each of the petitioner institutions which are the institutions within the meaning of Section 2(e) of the NCTE Act, was approved to be 100, when the first respondent Page 9 of 30 HC-NIC Page 9 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT University announced admission programme for B.Ed. course for the current putting the programme on the University website, it was required and directed by the University that the college/institution concerned shall have to fill up the seats in the B.Ed. course upto limit of 50 students, further stating that the University shall not be responsible for the admissions given beyond 50 seats. This gave the cause of action to the petitioners to approach this Court.
3.6 The allotment of seats to the petitioner institutions was done by NCTE after verification of details. It is an uncontroverted case of the petitioners that report was obtained by NCTE before approving the intake and the procedure was followed till 2013. As already noted, in the year 2014 the new Regulations were notified which led to revised order dated 31st May, 2015-and different dates-whereunder the petitioner institutions were required to meet with and abide by the conditions. The NCTE is active after the aforesaid revised order, to monitor and to make the institution concerned to be compliant with the norms and standards prescribed by it under the Regulations.
4. The case of the University which was put- forth and highlighted by learned advocate for the University from University's affidavit-in-reply, inter alia to vehemently submit that the respective petitioner could not be allowed the second unit of 50 students as the petitioner institutions did not have enough infrastructure, teaching staff and non-teaching staff as per the Regulations; that the University has Page 10 of 30 HC-NIC Page 10 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT granted conditional affiliation to the petitioner institutions; even the revised recognition indicates that the institutions shall have to comply the requirements. It is stated that upon required by the State Government by communication dated 06th October, 2015, the Inspection Committees were constituted which inspected the institutions imparting B.Ed. courses who found to be suffering from inadequacy in terms of infrastructure. The stand of the University was pressed for not accepting the prayers of the petition. As against this stand of the University the learned senior counsel was at ease to point out that the University in its meeting dated 22nd August, 2016 noted in Resolution No.4 that NCTE had approved second unit of 50 seats and it was recommended that colleges would be allowed to allot such seats.
4.1 On behalf of the NCTE, learned advocate submitted to claim the predominant position of the Council in dealing with the matters relating to teacher education. While learned advocate emphasised that NCTE would have a final word, at the same time, he stressed that the NCTE always ensure that norms and standards are complied with by the institutions imparting education. He urged the Court also not to grant blanket relief to such petitioner institutions who are deficient in terms of compliance of norms and fulfillment of infrastructural facilities. He submitted that even after granting the revised recognition and approving intake capacity of 100 students, it is ensured that the petitioner institutions comply with the conditions. He produced Page 11 of 30 HC-NIC Page 11 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT details of those petitioners who are given notice for not meeting with the requirements and norms as per the Regulations and the conditions of recognition. He stated that petitioners of Special Civil Application Nos.14728, 14730, 14732, 14734, 14737, 14745, 14747 and 14791 of 2016 are given notice and asked to reply within 21 days.
4.2 It is to be also recorded that details were made available on behalf of the NCTE of those petitioner institutions who are not given notice, implying thereby that they are the norms-compliant institutions. Those institutions in the group of these petitions who do not face such notice, are the petitioners of Special Civil Application Nos.14727, 14729, 14731, 14735, 14742, 14743, 14744, 14746, 14748, 14749, 14780, 14798, 14799, 14800, 14801, 14870 and 14871 of 2016.
4.3 Thus the petitioner institutions herein could be grouped in three categories-those who are issued notices by the NCTE for compliance with the norms and the conditions of the Regulations, those who are not given any such notice and have furnished compliance report. The third kind is those in respect of whom NCTE has not furnished any information as regards the status of the norms or action taken or proposed by the NCTE. All three types of institutions would abide by the norms prescribed by the NCTE. They shall be governed by the directions issued in this order/judgment in the operative portion.
5. Prefacing the delineation on the Page 12 of 30 HC-NIC Page 12 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT controversy, by noticing that the enactment of National Council for Teacher Education Act, 1993 aims to achieve the object of planned and coordinated development in the sphere of teacher-education system across the country. The Act inter alia provides for establishment of a Council to be called National Council for Teacher Education (NCTE) clothed with multifarious functions, powers and duties for the purpose of proper enforcement of norms and standards in the teacher-education and the matters connected therewith. The scheme of the Act, 1993 came to be elaborately considered, discussed and explained with tracing of legislative background, by the Supreme Court, against other judgments, in State of Maharashtra Vs Sant Dnyaneshwar Shikshan Shastra Mahavidayalaya [(2006)9 SCC 1, para 23 to 37], in Adarsh Shiksha Mahavidayalaya Vs Subhash Rahangdale [(2012)2 SCC 425, para 9 to 17], and once again in a more recent decision in Maa Vaishno Devi Mahila Mahavidhyalay Vs State of U.P. [(2013) 2 SCC 617].
5.1 Still however, a bird's eye-view on the provisions of the Act would be useful to set the ton of the present judgment and its reasoning. The 'Council', that is NCTE, is an expert body defined under Section 2(c) and established under Section 3(1) of the Act. The constitution of the Council is as per sub-section (4) of Section 3. Section 2(d) is the definition of 'examining body' to mean university, agency or authority to which an institution may be affiliated, for conducting examinations in the teacher education qualifications. 2(n) defines 'University' to Page 13 of 30 HC-NIC Page 13 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT mean one defined under clause (f) of Section 2 of the University Grants Commission Act, and includes a Deemed University. The 'institution' is 2(e) being one which offers courses of training in teacher education. 'Teacher education' as defined in 2(l) means programmes of education, research or training of persons for equipping them to teach at different educational hierarchies. Teacher education qualification is also defined to mean a degree or diploma certificate awarded by the examining body or University, but in accordance with the provisions of the NCTE Act.
5.2 The functions of the Council are enumerated in Section 12. As per the functional duties attached to the NCTE, it is to take all steps to ensure a development of teacher education as per the preamble of the Act, has to lay down guidelines for compliance with recognised institutions, granting permission for starting new courses for training, for providing physical instructional facilities and for further providing staffing pattern as well as staff qualification. It is for the NCTE to examine and review periodically the implementation of the norms, guidelines and standards laid down by. A complete procedure has been provided under Section 13 for conducting inspection of the institution.
5.3 Sections 14 to 18 are the provisions in Chapter IV of the Act captioned as Recognition of Teacher Education Institutions. Section 14 provides that every institution offering or intending to offer Page 14 of 30 HC-NIC Page 14 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT a course or training in teacher education, will have to make an application to the Regional Committee for grant of recognition under the NCTE Act. The further provisions in Section 14 prescribes the mode and method of dealing with such application and the requirements to be fulfilled for the purpose. Under Section 15 of the Act, the Council through its Regional Committee is empowered to grant permission to a new course or training by recognised institution. Such permission is granted upon a satisfaction about the institution possessing the infrastructure necessary for educational purpose and for impartation of the course.
5.4 Section 16, viewed as a linking provision, is that the affiliating body would grant affiliation after recognition or permission is granted by the Council. The Section mandates that notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day (a) grant affiliation, whether provisional or otherwise, to any institution; or (b) hold examination, whether provisional or otherwise, for a course or training conducted by a recognised institution, unless the institution concerned has obtained recognition from the Regional Committee concerned, under Section 14 or permission for a course or training under Section 15.
5.5 Section 17 deals with the contravention of provisions of the Act and consequences thereof. Where the Regional Committee, either on its own or upon any Page 15 of 30 HC-NIC Page 15 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT representation received from any person, is satisfied that a recognised institution is contravened any provision of the Act, Rules, etc., the recognition or permission granted under Section 14(3) may be withdrawn for the reasons recorded in writing and for that the institution shall be given a reasonable opportunity of making its representation. The Second Proviso to Section 17(1) says as to when the order withdrawing or refusing recognition by the Regional Committee shall come into force. Section 18 deals with the appeal before the Council.
6. Having noticed the statutory conspectus from the provisions of the Act, a survey of decision by the Apex Court would be of sentinel value.
6.1 With regard to the provision of sub-section (6) Section 14 of the Act, in Maa Vaishno Devi Mahila Mahavidhyalay (supra) the Apex Court observed as under.
"Section 14(6) will be of some significance once we deal with the facts of the present case, as it is a provision providing interlink between recognition of an institution by NCTE, on the one hand and affiliation by the examining body, on the other. Section 14(6) reads as under:
14. (6) Every examining body shall, on receipt of the order under sub-section (4)-(a) grant affiliation to the institution, where recognition has been granted; or
(b) cancel the affiliation of the institution, where recognition has been refused." (Para 40) 6.2 Pinpointing the import and effect of the aforesaid Section 16 which starts with the non-
obstante clause, the Supreme Court in Maa Vaishno Devi Mahila Mahavidhyalay (supra) stated thus.
Page 16 of 30HC-NIC Page 16 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT "Section 16 opens with a non obstante language and has an overriding effect over all other laws for the time being in force. It requires that unless the institution concerned has obtained recognition from the Regional Committee concerned, no examining body shall, on or after the appointed day, grant affiliation, whether provisional or otherwise, or even hold examination, whether provisional or otherwise, for the courses in the teacher training programme. On the other hand, Section 17(3) also uses the expression shall thereby making it mandatory for the University or the examining body to cancel affiliation of the institution in accordance with the order passed by NCTE withdrawing the recognition of the institution. These provisions convey the significant, vital and overriding effect of this Act in comparison to other laws in force."
(Para 39) 6.3 In Sant Dnyaneshwar Shikshan Shastra Mahavidayalaya (supra), The State of Maharashtra had passed an order that the State Government had taken a policy decision not to grant no objection certificate to any institution for starting new B.Ed. college and the said decision was also brought to the notice to NCTE, Bhopal. Inspite of the said policy decision, NCTE granted permission to the petitioner institute which came to be challenged by the State. The Apex Court ruled that it is clear that the field is fully and completely occupied by the Act of the Parliament covered by Entry 66 of List I of Schedule VII. It was stated that therefore it was not open for the State Legislature to encroach upon the said field. Answering the issue addressed in the case, the Apex Court held that it was not open to the State Government to refuse the permission relying on a State Act or on 'policy consideration'. The Supreme Court adverted to the provisions of the Constitution, Regulation of the NCTE as well as its own judgment in St. Johns Teachers Training Institute Vs National Council for Teacher Page 17 of 30 HC-NIC Page 17 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT Education [(2003) 3 SCC 321] to hold that the final authority to take decision on the issue of grant of recognition vests in the NCTE, and that the NCTE cannot be denuded of that authority on the ground that an agency like the State Government has refused to issue No-objection Certificate.
6.4 Significantly, the propositions of law which were laid down by the High Court and approved by the Apex Court in Sant Dnyaneshwar Shikshan Shastra Mahavidayalaya (supra) were these-(i) the only authority which could take a decision regarding opening of new B.Ed. college or increase in intake capacity was NCTE and such decision could not be ignored either by the State authorities or by the University, (ii) the function of the State Government was in the nature of supply of necessary data and materials so as to enable NCTE to undertake the process of coming to an appropriate decision but the State had no power to take a policy decision not to grant permission to open new B.Ed. college for a particular period, and (iii) it was incumbent on the University to implement the decision of NCTE and it could not take any action overlooking the decision of NCTE and relying on a decision of the State Government. However, as the High Court had further held that Sections 82 and 83 of the Maharashtra University Act, to the extent they required the University to grant affiliation only after permission was granted under Section 82, were null and void, the Supreme Court clarified that the provisions could not be viewed as null and void but in wake of provisions Page 18 of 30 HC-NIC Page 18 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT of the NCTE Act, 1993, those provisions of the University Act would not apply and once the recognition was granted by the NCTE, the University was obliged to grant affiliation to such institution, irrespective of the bar in Section 83 of the Maharashtra University Act.
6.5 In Sant Dnyaneshwar Shikshan Shastra Mahavidayalaya (supra), the Supreme Court further held, "... all State laws in regard to affiliation insofar as they are covered by the Act must give way to the operation of the provisions of the Act. To put it simply, the requirements which have been examined and the conditions which have been imposed by NCTE shall prevail and cannot be altered, re-examined or infringed under the garb of the State law. The affiliating/examining body and the State Government must abide by the proficiency and command of NCTEs directions. To give an example, existence of building, library, qualified staff, financial stability of the institution, accommodation, etc. are the subjects which are specifically covered under Section 14(3)(b) of the Act. Thus, they would not be open to re-examination by the State and the university."
(Para 77) 6.6 Adarsh Shiksha Mahavidayalaya (Supra) was an appeal before the Supreme Court arising out of a public interest litigation filed before the High Court of Madhya Pradesh which prayed for issuance of directions for ensuring proper maintenance of norms and standards in the teacher-education system in various colleges. The Apex Court upheld the order of the High Court under appeal in which directions regarding inter alia about mandatoriness of the compliance to the statutory provisions of recognition and affiliation were issued.
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7. As the crystalised legal position emerge from the foregoing discussion, after enactment of NCTE Act-the Central Legislation, by which the Parliament evinced its intention to occupy the entire field of teacher education in the country and the statutory provisions of the NCTE Act having fully operated, the provisions of the state laws including the state Acts empowering the universities and/or examining bodies or other agencies have to give way to the NCTE Act to operate. Any and many provisions of the state local laws would not apply to the extent they stand inconsistent, irreconcilable or having an overriding nature vis-a-vis NCTE Act. The role of the universities and examining bodies or such other agencies stand subordinated to the provisions of the NCTE Act in the sphere of teacher education and in respect of all the matters connected therewith. The role of NCTE would reign.
7.1 In B.M. Patel Education Trust Vs Hemchandracharya South Gujarat University [AIR 2014 Guj 187], this Court taking survey of the role of the NCTE vis-a-vis the stand of the University to enforce its Regulations, held that insistence of the respondent university that the petitioner who possessed five acres of land as prescribed under the University Grants Commission Regulations, despite the fact that requirements for infrastructural facilities including area of land as prescribed by the NCTE were duly satisfied by the petitioner, was contrary to law laid down by the Supreme Court in Maa Vaishno Devi Mahila Mahavidhyalay (supra).
Page 20 of 30HC-NIC Page 20 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT 7.1.1 Succinctly culling out the position of law, this Court observed to hold, "Thus, on a conspectus of the above decisions, it clearly emerges that the provisions of the NCTE Act have a vital and overriding effect in comparison to other laws in force. The NCTE Act is a special Act enacted to cover teacher training education and, thus, has to receive precedence over other laws in relation to that field. The provisions of section 16 of the NCTE Act give complete supremacy to the expert body/NCTE in relation to grant of recognition and in fact, it renders the role of other bodies consequential upon grant and/or refusal of recognition. The Council is the authority constituted under the Central Act and has the responsibility of maintaining education standards and judging upon the infrastructure facilities available for imparting such professional education. Its opinion is of utmost importance and shall take precedence over the views of the State as well as that of the University. The Department of the State concerned and the affiliating university have a role to play but it is limited in its application. They cannot lay down any guideline or policy which would be in conflict with the Central statute or the standards laid down by the Central body. Moreover, the affiliating body/examining body does not have any discretion to refuse affiliation with reference to any of the factors which have been considered by the NCTE while granting recognition."
(Para 13) 7.2 The progress achievement and efficiency in the teacher training education is to be vehicled through NCTE, as the law requires. In such carriage, the University or examining body or related agency cannot occupy driver's seat. They may play a guide, but the journey and the destination could be steered by the NCTE having a final decision making power and ultimate say. The role of the University or examining body, as is observed in Sant Dnyaneshwar (supra) is conceived to be more in the nature of collection of data and material. Therefore if the stand of the University is that a particular institution is wanting Page 21 of 30 HC-NIC Page 21 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT in the fulfillment of the infrastructure and satisfactory availability of facilities for training course of B.Ed., its role is limited to assist the NCTE in taking appropriate decision by supplying necessary information and sending the reports, to which the NCTE would give regard.
7.3 The mandate of the provisions of the Act and the proposition of law flowing from the various decisions referred to hereinabove is that the University is bound to give affiliation to the institution once the institution is granted recognition from the NCTE. In all prescriptions, the NCTE has final say. This dictum per force applies to the question of intake of students. While issuing revised order dated 31st May, 2015, the NCTE approved the intake capacity of 100 students. It was simultaneously done. The grant of recognition and prescription of intake capacity go-to-gather. The intake capacity is an extension of recognition and is integral part of the permission given to the recognised institution to run the course. Therefore, once the intake capacity is prescribed to a particular extent by the NCTE, it is not open to the University to insist that it would permit admission to less number of students, nor additional seats can be permitted by the University. It is the prescription of NCTE as regards intake shall prevail and the University shall remain bound by it.
7.4 It is the statutory prerogative of the National Council for Teachers Education to prescribe Page 22 of 30 HC-NIC Page 22 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT and allow the intake capacity for the B.Ed. course programme training imparted at the educational institutions. Not only in respect of granting recognition, but also for prescribing intake capacity for B.Ed. Course, the NCTE is the final authority, whose decision shall bind the University. The University with which such institutions may be affiliated does not enjoy any power to de-prescribe or reduce the intake capacity permitted by the NCTE. In the cases on hand, the respondent University in each case has required the petitioner college to fill-up only 50 seats in the B.Ed. Course, thereby reduced the intake, though the intake of 100 seats has been approved by the NCTE from Academic Session 2015-16 as per its order dated 31st May, 2015. The said intake approval is continued for the Academic Year 2016-17 subject to fulfillment of conditions mentioned in the order. It was impermissible for the University to refuse to enforce the intake prescribed by the NCTE.
7.5 What is held above takes direct support from the following observations of the Apex Court in Sant Dnyaneshwar Mahavidayalaya(supra) when it in terms stated that the NCTE enjoys predominance not only in respect of granting recognition but also in respect of increase in intake. What is true for increase in the intake, is equally true for allowing the initial intake.
"The non obstante language of Section 16 requires the affiliating body to grant affiliation only after recognition or permission has been granted by NCTE. The provisions of Section 16 give complete supremacy to the expert body/NCTE in relation to grant of recognition.Page 23 of 30
HC-NIC Page 23 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT In fact, it renders the role of other bodies consequential upon grant and/or refusal of recognition. When NCTE is called upon to consider an application for grant of recognition, it has to consider all the aspects in terms of Section 14(3)(a) of the NCTE Act. The amplitude of this provision is very wide and hardly leaves any matter relatable to an educational institution outside its ambit. To put it simply, NCTE is a supreme body and is vested with wide powers to be exercised with the aid of its expertise, in granting or refusing to grant recognition to an educational institution. NCTE is the paramount body for granting the approval/recognition not only for commencing of fresh courses but even for increase in intake, etc."
(Para 54) (emphasis supplied) 7.6 The examining body or affiliating University or any outside agency cannot prescribe, provide or enforce the intake capacity contrary to or in conflict with the intake capacity approved and permitted by NCTE.
8. The Court is not oblivious to the aspect that the University cannot compromise the teaching standards and academic quality, which he emphasized with reference to the observations in that regard in decision of this Court in Bhagwantsinhji Charitable Trust Vs Saurashtra University [2006 (2) GLR 1069]. It is also true that the educational field in the present time has been witnessing sprouting of the educational institutions suffering from lack of infrastructure, under staffing and the resultant bottlenecks having direct bearing on the quality of education in general, and quality standards in teacher education in particular.
9. As per the stand taken by the NCTE in the proceedings, it advocated for scrupulous compliance of Page 24 of 30 HC-NIC Page 24 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT norms and requirements by the institutions imparting the teacher-education courses. The stance was that the NCTE seeks to enforce them rigorously. It cannot be gainsaid that NCTE has been active in supervising and monitoring the maintenance of norms and standards as to infrastructure, staffing, etc., at the institutions. After the Regulations of 2014 were brought into force, the revised order of recognition with intake capacity of 100 has been issued to the institutions from Academic Year 2015-16. In the current Academic Year, there has been a follow-up action by the NCTE which has sought to enforce the requirement of Regulations and conditions of recognition plus intake capacity to the deficient institutions as per the notice given to several of them mentioned above. Therefore when the proposition of law is being laid down that the NCTE is the final authority in all matters related to teacher education, it is not that it amounts to yielding to the standards or shielding the below-standard institutions with inadequate infrastructure. In the field of teacher education in the country, the coordinated and planned efforts to make the training and courses efficient, are contemplated under the law to be under the hegemony of the NCTE which was a competent expert body created for the purpose.
10. As a sequel of the above discussion, the decision reflected by way of instructions of the University restraining the petitioner in each of the petition, to admit students in the B.Ed. course from filling up seats beyond 50, when the NCTE has Page 25 of 30 HC-NIC Page 25 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT allocated and approved the intake of 100 seats, was impermissible in law not to be sustained. The said decision of the University in each case is set aside. The respondent University shall permit respective petitioner institutions for the Academic Year 2016-17, the intake of 100 students in the course. The admissions at all the petitioner institutions in the B.Ed. Course shall be allowed as per the intake capacity permitted by NCTE.
10.1 The above order shall be further governed and regulated by the following directions and observations.
(i) The first petitioner of Special Civil Application No.14532 of 2016 and other petitioners mentioned in paragraph hereinabove have not been issued any show cause notice by the NCTE, implying that the compliance report regarding fulfillment of the conditions and the infrastructural facilities as per the norms of the NCTE, has been accepted by the NCTE. However even in respect of those petitioner institutions who have sent compliance report, the satisfaction of the NCTE shall be final. The NCTE may take necessary final steps before 31st October, 2016;
(ii) In respect of above class of cases, however, the NCTE may carry out periodical inspection at its own discretion to ensure that the infrastructural availability, education standards and academic discipline is ensured and subsists in the impartation of the B.Ed. training;Page 26 of 30
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(iii) These petitioner institutions of Special Civil Applications mentioned in paragraph above, who are subjected to a show cause notice by the NCTE, would be bound to comply with the requirements prescribed in the order of grant of approval dated 31st May, 2015 and also those mentioned in the show cause notice of the NCTE approving the intake of 100 students, subject to fulfillment of conditions. Such petitioner institutions shall comply with the requisite conditions as per the provisions of NCTE Regulations, 2014, as well as other applicable stipulations which may be required by the NCTE to be met with, and that the same shall be complied with and the compliance report shall be sent to NCTE within three weeks;
(iv) As the continuance of intake of 100 seats in the petitioner institutions who are non-compliant of the requirement or are yet to comply with the conditions of minimum infrastructure necessary for teaching B.Ed. Course, and yet to send compliance report, shall be subject to the final approval of the NCTE, admission to students in such petitioner institutions in the Course, shall be treated as provisional;
(v) The students who may be admitted in such petitioner institutions, pending compliance of the NCTE requirements in response to show cause notice, shall be specifically intimated that their admissions shall be provisional, to be subject to the approval of NCTE to the institution concerned to run the Course/to Page 27 of 30 HC-NIC Page 27 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT have the intake capacity of particular number of seats;
(vi) As the scheduled admissions to the B.Ed. course was to close on a particular date, and in view of providence of order dated 09th September, 2016 (Paragraph 2.1 above) that the admissions shall abide by the final order/judgment in the petitions, it is directed that the students who would be given admission in the approved intake quota upto 100 seats, shall be treated as deemed to have been admitted within time for all the purposes;
(vii) In respect of the petitioner institutions, found to be non-compliant of conditions and have been facing the show cause notice, the affiliating University is not precluded from forwarding its report to the Regional Committee to be considered by the NCTE, regarding deficiencies in the teaching staff, teaching facilities, non-teaching infrastructure or about other infrastructural bottlenecks prevalent at the institution concerned to be remedied or fulfilled by the institution. The NCTE shall take its own appropriate decision and/or may issue necessary directions after considering the report;
(viii) It is in respect of cases of those petitioner institutions, which have been given show cause notice to the compliant of the requirements, that the NCTE will have right to refuse or vary the intake prescription, by passing appropriate order under Section 17 of the Act so as to refuse the approval to the course/course intake;
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(ix) The above conditions and directions would apply to the cases of those petitioners in respect of whose petitions, the respondent-NCTE has not furnished any information as to whether the institution concerned is given show cause notice for non- compliance of the requirements or that sent compliance report;
(x) For the third category of the petitioner institutions who are neither given show cause notice nor have sent compliance report till date, it may be open for the NCTE to seek compliance by issuing show cause notice within 10 days from today. It will be open for the institution concerned to comply with the requirements and satisfy the NCTE in that regard before 31st October, 2016.
11. All the petitions are allowed and disposed of in the terms and as per the directions aforementioned.
Direct service is permitted.
(N.V.ANJARIA, J.) FURTHER ORDER It was provided while reserving the matters for judgment that admissions to the respective institutions shall abide by the final outcome of the petition. Now when the judgment is pronounced, the respondents including the first respondent University, are directed to abide by the judgment and directed to give admissions as observed in the judgment and the Page 29 of 30 HC-NIC Page 29 of 30 Created On Fri Oct 07 01:14:26 IST 2016 C/SCA/14532/2016 CAV JUDGMENT period for granting admissions shall stand accordingly extended.
At this stage, learned advocate Mr.Siddharth Dave for the respondent University prays for staying of the judgment. The other side opposed the prayer.
In the facts and circumstances and in view of what is held hereinabove, the request could not be acceded to and is hereby rejected.
(N.V.ANJARIA, J.) Anup Page 30 of 30 HC-NIC Page 30 of 30 Created On Fri Oct 07 01:14:26 IST 2016