Karnataka High Court
Dr. Sri Jachani Rashtreeya Seva Peetha, ... vs State Of Karnataka And Others on 22 March, 1999
Equivalent citations: AIR2000KANT91, ILR1999KAR2561, 1999(5)KARLJ587, AIR 2000 KARNATAKA 91, 1999 (4) KANTLD 137, (1999) ILR (KANT) 2561, (1999) 5 KANT LJ 587
ORDER
1. The petitioner is a trust. It intends to establish a Teachers Training Institute in Bagepalli Taluk of Kolar District. Since, it can do so only on obtaining recognition under Section 14 of the National Council for Teacher Education Act, 1993 (in short, the 'Central Act'), it had submitted an application for the said purpose. But its application for grant of recognition has been rejected by the Southern Regional Committee established by the National Council for Teacher Education (in short, the 'National Council') under its letter dated 1-8-1997 (Annexure-J2) on the ground that it has failed to produce 'No Objection Certificate' as required under Regulation 5(e) of the "National Council for Teacher Education (Application for Recognition, the Manner for Submission, Determination of Conditions for Recognition of Institutions and Permission to start New Course of Training) Regulations, 1995" (in short, the 'Central Regulations').
2. It is a matter of record that though the petitioner had made an application seeking no objection certificate from the State Government for the above purpose but the same has been refused by the Secretary, Education Department, Government of Karnataka, under its letter dated 12-8-1996 (Annexure-E), material part whereof reads as under.-
"Sub: Issue of NOC for starting Teachers Training Center -Reg. Ref: Your representation dated 8-7-1996.
The subject is considered. In view of the present policy of the Government, I am directed to inform you that your request for starting Teachers' Training Center cannot be granted".
3. In the backdrop of the above factual settings, the petitioner has approached this Court for striking down the Regulation 5(e), (c) and (f) of the Central Regulations as unconstitutional and void and even otherwise quash the State Government's endorsement dated 12/13-8-1996 at Annexure-E being arbitrary and consequently to direct the respondent-Regional Committee to accord recognition to the petitioner-Trust.
OBJECT OF THE ACT
4. Now it is firmly established that with the coming into force of the Constitution (Forty-second Amendment) Act, 1976, w.e.f. 3-1-1977, the legislative power in respect of "Education" is now conferred exclusively on the Parliament in respect of the matters specified in Entries 63 to 66 of List I and concurrently on Parliament and State's Legislature in respect of the matters specified in Entry 25 of List III (See Thirumuruga Kirupananda Variyar Thavathiru Sundara Sivamigal Medical Educational and Charitable Trust v State of Tamil Nadu). Thus, the Parlia-
ment has acquired the legislative competence to make laws in relation to teacher education as well and in view of Article 254 of the Constitution of India, any State Law to the extent it is found repugnant to the Central Act, becomes ipso facto void.
5. The National Policy on Education, 1986 had stressed that for improvement in the quality of education there needs to be an organised training both to the pre-service and in service school teachers. It cannot be disputed that the role of a teacher is crucial in any programme of education. Without having well-qualified teachers who have not only academic and professional competence of high order but also realisation of earnest responsibility and commitment to strive constantly to raise student learning, capable of achieving and making them increasingly autonomous and self actualising, it will be impossible to improve and maintain standards of education, particularly at Pre-University level which requires more care and sensitivity towards young students with academic immaturity. The 1986 Education Policy clearly stated that "status of teachers reflects socio-cultural ethos of a society; it is said that no people can raise above the level of their teachers". This impelled the policy makers and ultimately the Parliament to make provisions for maintaining a minimum standard of teacher education befitting to provide an effective education system to the children.
6. With the above objective, the National Council for Teacher Education was set up in 1973 by the Central Government as a National Expert Body to advise the Central and State Governments on all the matters pertaining to teacher education. Before the enactment of the present Central Act, the role of the said Body was purely advisory and for the said reason, it was found that it had very little impact on the standards of teacher training institutions in the country and on their unplanned growth. Therefore, as found in the Statement of Objects and Reasons to the Act, the Bill seeking the present Act was placed before the Parliament to achieve the following objectives:
"The present Bill seeks to provide statutory powers to the NCTE with the object of determination, maintenance and co-ordination of standards in teacher education laying down norms and guidelines for various courses, promotion of innovation in this field and establishment of a suitable system of continuing education of teachers.
The Bill seeks to empower the Council to make qualitative improvement in the system of teacher education by phasing out substandard institutions and courses for teacher education. The NCTE would also be empowered to grant recognition to institutions for teacher education and permission to recognised institutions for new course or training in teacher education. The Bill also provides for delegation of various powers to Regional Committees and other Committee for effective implementation of the function of the Council".
7. The regulatory provisions of the Act has come into force with effect from 17-8-1995 with the establishment of National Council under subsection (1) of Section 3. The Central Regulations came into force with its publication in the Gazette of India on 24-2-1996.
8. Section 3 of the Central Act provides for establishment of National Council. Sub-section (2) whereof declares it to be a body corporate which can sue and be sued in its own name. Its sub-section (4) makes provision for constitution of National Council and clause (n) thereof provides that nine Members to be appointed by the Central Government to represent the States and the Union Territory Administrations in the manner prescribed.
9. It will be useful to quote the relevant provisions of the Act. These are.-
"(a) "appointed day" means the date of establishment of the National Council for Teacher Education under sub-section (1) of Section 3;
(c) "Council" means the National Council for Teacher Education established under sub-section (1) of Section 3;
(d) "examining body" means a University, agency or authority to which an institution is affiliated for conducting examinations in teacher education qualifications;
(e) "institution" means an institution which offers courses or training in teacher education;
(h) "prescribed" means prescribed by rules made under Section 31;
(i) "recognised institution" means an institution recognised by the Council under Section 14;
(j) "Regional Committee" means a committee established under Section 20;
(k) "regulations" means regulations made under Section 32;
(1) "teacher education" means programmes of education, research or training of persons for equipping them to teach at pre-primary, primary, secondary and senior secondary stages in schools, and includes non-formal education, part-time education, adult education and correspondence education;
(m) "teacher education qualification" means a degree, diploma or certificate in teacher education awarded by a University or examining body in accordance with the provisions of this Act.
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, the 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) xxx xxx xxx.
14. Recognition of institutions offering course or training in teacher education.--(1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations:
Provided 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 it fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or
(b) if it is of the opinion that such institution does not fulfil the requirements laid down in sub-clause (a), pass an order refusing recognition to such institution for reasons to be recorded in writing:
Provided that before passing an order under sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a written 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 order 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.
16. Affiliating body to grant affiliation after recognition or permission by the Council.--Notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day,--
(a) grant affiliation, whether provisional or otherwise, to any institution; or
(b) hold examination, whether provisional or otherwise, for a course or training conducted by a recognised institution, unless the institution concerned has obtained recognition from the Regional Committee concerned, under Section 14 or permission for a course or training under Section 15.
20. Regional Committees.--(1) The Council shall, by notification in the Official Gazette, establish the following Regional Committees, namely.-
(i) the Eastern Regional Committee;
(ii) the Western Regional Committee;
(iii) the Northern Regional Committee and
(iv) the Southern Regional Committee.
(2) xxx xxx xxx.
(6) The Regional Committee shall, in addition to its functions under Sections 14, 15 and 17, perform such other functions, as may be assigned to it by the Council or as may be determined by regulations.
(7) xxx xxx xxx.
27. Delegation of powers and functions.--The Council may, by general or special order in writing, delegate to the Chairperson or to any other member or to any officer of the Regional Committee, subject to such conditions and limitations, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to make regulations under Section 32), as it may deem necessary.
32. Power to make regulations.--(1) The Council may, by notification in the Official Gazette, make regulations not inconsistent with the provisions of this Act and the rules made thereunder, generally to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely.-
(a) xxx xxx xxx;
(e) the form and the manner in which an application for recognition is to be submitted under sub-section (1) of Section 14;
(f) conditions required for the proper functioning of the institution and conditions for granting recognition under clause (a) of sub-section (3) of Section 15;
(g) xxx xxx xxx;
(p) any other matter in respect of which provision is to be, or maybe, made by regulations".
STATE LAW ON TEACHER EDUCATION
10. In the State of Karnataka, the Teacher Training Examinations are being conducted by the Karnataka Secondary Education Examination Board constituted under the Karnataka Secondary Education Examination Board Act, 1966 (in short, the 'State Act'). Eligibility of a candidate for the sitting at the examination and other provisions connected therewith are contained in Chapter VII of the Karnataka Secondary Education Examination Board First Regulations, 1966 (in short, the 'State Regulations') under the heading "The Teachers Certificate Examination". The said chapter provides for holding of examination for grant of two types of certificates, namely, (a) Training Certificate (Higher) and (b) Training Certificate (Lower).
11. Under Regulations 57-A(ii) and 57-B(ii) of the State Regulations, one of the prerequisites for enabling a candidate to appear at the aforesaid examinations is that he must have undergone a training for two academic years in a Government or Non-Government Training Institute recognised by the Department of Public Instructions for imparting training in the course of studies prescribed for said examinations. For this purpose, the department has its own executive rules for grant of recognition to such institutions.
12. In view of sub-section (6) of Section 14 and Section 16 of the Central Act, as extracted above, notwithstanding anything contained in the State Regulations, once recognition is granted to an institution offering or intending to offer course or training in teachers education by the Regional Committee, then the State Department or the Examination Board has to necessarily grant affiliation to such institutions and in case it is refused by the Regional Committee, then they have to cancel the affiliation of the institution concerned.
13. Further, in view of Section 16 of the Central Act, the State Department or the Examination Board cannot grant affiliation either provisional or otherwise to any institution or hold examination in respect of a course or training conducted by any such institution unless the institution concerned has obtained recognition from the Regional Committee concerned under Section 14 or permission for starting a course or training under Section 15 of the Central Act.
14. Keeping in view the provisions contained in Section 14(6) and Section 16 of the Central Act, which have overriding effect on the State Legislation and the Regulations framed thereunder, the power of the Department of Public Instructions of the State Government has remained merely as ministerial in nature since they do not have any discretion for granting, maintaining and refusing recognition or affiliation to teachers training institutes and they have to act strictly in accordance with the orders granting or refusing recognition to such institutions either under Section 14 or 15 of the Central Act which is required to be duly published in the Gazette of India and communicated to them in writing for appropriate action.
Re: Powers and Functions of the State Government
15. Having noticed the relevant statutory provisions as extracted above, one of the principal questions that now needs to be determined at the threshold is as to whether the Parliament under the Central Act has assigned any function to the State Government in relation to grant of recognition to the institutions intending to offer teacher education. Even on a stretched reading of the provisions of the Central Act and the Central Regulations, no answer favouring the State Government can be traced. Still, as could be seen from the facts to be noticed hereinafter, under the present practice adopted by the National Council and the Regional Committee, the ultimate authority which dictates grant of recognition in relation to establishment of teachers training institutions has remained to be the State Government and even the said statutory bodies find themselves totally handicapped in overriding the decision taken by the State Government in this regard either under the guise of its purported State policy or to suit a particular political objective, whether it has or not even a remote bearing or nexus with the development of teacher education.
16. The State Government in its Statement of Objections dated 4-1-1999 speaking on oath through its Secretary, Department of Education, has tried to justify its power of framing policy regarding permitting to establish teacher training institutes in the State of Karnataka by taking shelter under Article 162 of the Constitution of India providing for State's executive powers.
17. On the other hand, the National Council, in its resolution passed in its meeting held on 1-12-1998 under Item No. C. 4.15 'Issue Emerging Out of Regulations Relating to Submission of NOC from the State Government' has conceded to such power in favour of the State Government in view of the impugned clauses (e) and (0 of Regulation 5 of the Central Regulations providing for 'Manner of making application'.
18. The impugned clauses of Regulation 5 of the Central Regulations are to the following effect.-
"5. Manner of making application.-
(a) xxx xxx xxx.
(e) Every Institution intending to offer a course or training in teacher education but was not functioning immediately before 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.
(f) Application for permission to start new course or training and/or to increase intake by recognised institutions under Regulation 4 above shall be submitted to the Regional Committee concerned with no objection certificate from the State or Union Territory in which the institution is located".
19. A bare reading of the above clauses show that though as understood by all concerned, obtaining of 'no objection certificate' has been prescribed as mandatory for entertainment of an application filed under Section 14 or 15 of the Central Act pertaining to grant of recognition but no corresponding statutory duty has been cast on the State Government to grant such certificates much less by providing any statutory guidelines governing exercise of the presumed discretion.
20. Possibly, it is for the said reason that the State Government has tried to trace its powers of refusing to grant or that of granting no objection certificate in Article 162 of the Constitution under the protective umbrella of 'State Policy' with a rider that it can violate the same at its sweet will as and when it is so desired just by assigning some or the other reason. This fact is duly reflected and substantiated by their own statement of objections.
21. In the State's affidavit dated 31-8-1998 it has been stated in para 2 that the respondent has refused the request of the petitioner for grant of 'No Objection Certificate' on the ground that it is the policy of the Government not to entertain the request for grant of permission to establish a new TCH institution.
22. The reason for adopting the above policy has been disclosed in para 3 of the above affidavit which says that.-
"It is relevant to submit that in the State of Karnataka, there are large number of Teacher Training Institutions which turn out around 8,000 trained T.C.H. candidates every year and also more than 1 lakh trained T.C.H. candidates are on the register of the Employment Exchange/s awaiting the employment. State's annual requirement of Primary School Teachers due to superannuation, death, resignation etc., is around 10,000. Hence, the present huge backlog of trained teachers awaiting jobs is sufficient to meet the demand for teachers for the next ten years".
23. Curiously, when the Counsel appearing for the petitioner, during the course of arguments, confronted the learned Government Pleader with materials demonstrating grant of No Objection Certificates in flagrant infraction of the said policy to some favoured applicants, affidavit dated 4-1-1999 and 19-1-1999 were filed by the Secretary to Government, Education Department, disclosing the purported reasons for the same.
24. The reasons for the said selective relaxation of the policy as set out in the above affidavits are the following.-
"(a) Based on the memorandum received by the Karnataka Ku-rubara Sangha the Government after considering the memorandum at Cabinet level relaxed the policy and sanctioned Kaginele TTI with TCH at Bangalore and Kaginele College of Education at Mysore with B.Ed course during 1996-97. Karnataka Maha Samsthana Peeta, Kaginele, was sanctioned only in the interest of the welfare of the backward class.
(b) With a view to pacify the perturbed muslims in resolving the Idgah Maidan issue at Hubli, the Cabinet took a decision to sanction the Anjuman TTI with TCH Course for the academic year 1996-97 in relaxation of the policy adopted by the Government.
(c) In order to make good, the regional imbalance and having identified a dire need to establish a College of Education in Shi-karipura, Cabinet considered sanction of Kumadvathi College of Education at Shikaripura with B.Ed run by Swamy Vivekananda Education Society, as a special case and approved sanctioning the said college during 1996-97.
(d) The records in respect of reopening of Adi Chunchanagiri C.P. Ed College for academic year 1996-97 discloses that the institution was started in the year 1982 and same was closed during 1987-88. However, during the academic year 1996-97, the college started functioning and the management sought post-facto permission for the C.P. Ed course. The said subject was placed before the Cabinet at its meeting held on 18-5-1997. The request made by the institution was examined by the Cabinet, and the Cabinet took a decision to permit them to reopen its C.P. Ed institution from academic year 1996-97. This is a case of reopening of closed institution.
(e) Two other institutions namely Bapuji Education Society, Challakere, was permitted to reopen its institution for C.P. Ed course w.e.f. academic year 1993-94.
(f) Similarly, Bharath Universal TTI College, Tiptur, was also permitted to reopen TCH Course during the academic year 1993-94 with two sections. It was also permitted to shift the institution from Tiptur to Halli Mysore. The Government orders in the aforesaid two cases have been issued with prior approval of the Chief Minister. By Government order dated 18-11-1998 NOC was issued for restoration of remaining 3 sections which in fact had been originally sanctioned in respect of Bharath Universal Teachers Training College when it was located at Tiptur. Thus, what has been done in the case of Bharath Universal College is that they have been permitted to reopen and shift and the five sections which had been originally sanctioned have been restored".
25. In the case of Vellore Educational Trust v State of Andhra Pradesh and Others, the Apex Court has held that.-
"The impugned order made by the respondent 1 refusing to grant permission solely on the ground of policy of the Government is in our considered opinion not at all tenable as we have stated hereinabove that such permission has already been accorded to establish private engineering college to Nagarjuna Education Society on November 15, 1985. Moreover, the application for permission was filed long before the alleged policy in question was adopted by the 1st respondent".
26. Though detailed statement of objections has been filed on behalf of the State Government but nothing has been placed on record to show as to how an inference regarding the presumed welfare of backward classes or regional imbalance had been drawn. Even the Government files, which were produced in the Court, do not refer to any numerical data to support the said inference. It appears that somebody wanted a decision to be taken in a particular form and it has been so taken by assigning some reason by way of pretence.
27. Therefore, even if it be presumed that the State Government had the competence to adopt a policy forbidding establishment of new teacher training institutions, the very fact of defiance of the same by the State Government itself for absolutely extraneous reasons being unconnected with teacher education has destroyed the very policy decision. Therefore, the Government could not have refused 'No Objection Certificate' to the petitioner under the guise of its policy decision.
28. Apart from the above reasons, the more serious question striking at the very root of the plea taken by the State Government is as to whether in view of the Central Act, the State Government could have at all taken any policy decision in respect of teacher education under Article 162 of the Constitution of India?
29. No doubt, Article 162 of the Constitution provides that subject to the other provisions of the Constitution, the executive powers of a State shall extend to the matters with respect to which the legislature of a State has powers to make laws. But in the case of State of Andhra Pradesh and Another v Lavu Narendra Nath and Others, the Apex Court has held that "the executive have a power to make any regulation which should have the effect of a law so long as it does not contravene any legislation already covering the field".
30. In the present case, as noticed above, the legislative field pertaining to teacher education is already covered by the Central legislation and therefore the State Government has ceased to have any executive power to frame policies with regard to the said subject.
31. Moreover, Section 29 of the Central Act has specifically empowered the Central Government to take a binding policy decision in respect of the subject-matters covered by the Act. This section reads as under.-
"29. Directions by the Central Government.--(1) The Council shall, in the discharge of its functions and duties under this Act be found by such directions on questions of policy as the Central Government may give in writing to it from time to time.
(2) The decision of the Central Government as to whether a question is one of policy or not shall be final".
32. Keeping in view the above statutory provisions, it has to be held that the binding policy decision regarding establishment of teachers training institutions can be taken only by the Central Government and the State Government has been completely denuded of its power to take such decision.
33. With reference to the requirement of Essentiality Certificate from the State Government for establishing new medical colleges in the context of statutory regulations framed under Sections 10-A and 33 of the Indian Medical Council Act, 1956, the Supreme Court in the case of Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust's case, supra, has held that-
"For the purpose of granting the essentiality certificate as required under the qualifying criteria prescribed under the Scheme, the State Government is only required to consider the desirability and feasibility of having the proposed medical college at the proposed location. The essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now rests with the Central Government alone".
34. For the aforesaid reasons, the purported policy decision taken by the State Government forbidding the establishment of teachers training institutions in the State of Karnataka has to be held as ultra vires its powers and thus a nullity. Therefore, any order passed by the Regional Committee on the basis of such a policy decision would amount to acting on extraneous dictation. -- See Anirudhsinhji Karansinhji Jadeja and Another v State of Gujarat. Consequently, the decision taken either by the State Government or the Regional Committee based on such policy decision of the State Government has to be held as illegal.
Re: Validity of clauses (e) and (f) of Regulation 5 of the Central Regulations
35. I have already extracted the impugned clauses (e) and (f) of Regulation 5 of the Central Regulations in para 18 hereof. These regulations have been framed by the National Council pursuant to the powers conferred on it under Section 32 of the Central Act. The material provisions of this section has been extracted in para 9 hereof.
36. A reading of the provisions contained in Section 32 of the Central Act, makes it clear that the National Council has been empowered to frame regulations generally for the purposes of carrying out the provsions of the Act. Clause (e) of sub-section (2) of Section 32 specifically spells out that the regulations may provide for the form and the manner in which an application for recognition is to be submitted under sub-section (1) of Section 14 of the Central Act. Whereas, clause (f) of this sub-section empowers the National Council to prescribe the conditions for granting recognition under clause (a) of sub-section (3) of Section 14.
37. The above empowerment in favour of the National Council is in conformity with the substantiative provisions contained in sub-sections (1) and (3) of Section 14 of the Central Act. Under sub-section (1) of the said section, the institutions intending to offer course of training in teacher education are required to make an application to the Regional Committee concerned in such form and in such manner as may be determined by the regulations. On the other hand, sub-section (3) of Section 14 makes the provisions for consideration of such an application by the Regional Committee. According to this sub-section, on receipt of the application, the Regional Committee has to be fully satisfied regarding availability of necessary infrastructure and connected matters befitting maintenance of minimum standard of teacher education as prescribed by the regulations and on being so satisfied, it can pass an order granting recognition to the institutions subject to such conditions as may be prescribed by the regulations.
38. Therefore, it is quite clear that for making an application by an institution the regulations have merely to provide for the form and the manner in which such an application is required to be filed. But on the other hand, if the application is found to be in order then keeping in view the infrastructure available with the applicant for imparting teacher education while passing an order granting recognition, the Regional Committee is required to grant recognition subject to the prescribed conditions.
39. The question therefore is as to whether the National Council was within its statutory competence to prescribe a condition precedent like the requirement of obtaining 'No Objection Certificate' from the State Government even for maintaining an application for grant of recognition in terms of sub-section (1) of Section 14 of the Central Act?
40. The answer lies in the literal and judicial meanings of the words 'manner' and the 'condition'. The content and meanings of the words 'manner' and 'conditions' are quite eloquent and clear. As per the Webster's International Dictionary, 'Manner' means 'method or mode or style'. Whereas, "Condition" means "essential quality; property, attribute, that which must exist as the occasion or concomitant of something else; that which is requisite in order that something else should take effect; an essential qualification; stipulation; terms specified; a clause in a contract, or agreement, which has for its object to suspend, to defeat, or in some way to modify, the principal obligation".
41. In Black's Law Dictionary, the word 'Manner' has been defined to mean that "a way, mode, method of doing anything, or mode of proceeding in any case or situation". Similarly, the word 'Condition' has been defined inter alia to mean "A qualification, restriction, or limitation modifying or destroying the original act with which it is connected; an event, fact or the like that is necessary to the occurrence of some other, though not is cause; a prerequisite; a stipulation".
42. From the above, it is clear that while exercising the power of making regulations for providing "manner" in which application for grant of recognition is to be filed, the National Council could not have laid down a substantiative condition precedent like obtaining of 'No Objection Certificate' from the State Government for entertainment of such an application, thereby defeating the very right of seeking recognition at the pleasure of the State Government. This above view of mine is squarely substantiated by the judgment of the Allahabad High Court in the case of Rama Shankar v Official Liquidator, Jwala Bank Limited.
43. Keeping in view the considerations, the National Council, for the purposes of making an application for recognition in terms of Section 14(1) of the Central Act, could have only prescribed the form, the manner and mode in which the application was required to be filed. But, in the guise of the said power it has prescribed the condition precedent for maintainability of such an application in the form of seeking No Objection Certificate from the State Government thereby virtually abdigating its statutory powers in the State Government and that too without there being corresponding obligation on the State Government for grant of such certificate by exercising its discretion within the framework of defined guidelines. Therefore, incorporation of the impugned clause (e) in the Central Regulations is clearly ultra vires the powers of the National Council. Accordingly, this clause is liable to be struck down.
44. It is of considerable importance to note here that in the Stroud's Dictionary it is stated that the words 'manner and form' refer only "to the mode in which a thing is to be done and do not introduce anything from the act referred to as to things which is to be done or time for doing it". This meaning of the word 'manner' has been adopted with approval by the Supreme Court in the case of Sales Tax Officer, Ponkunnam v K.I. Abraham, wherein the third proviso to Rule 6(1) of the Central Sales Tax (Kerala) Rules, 1957, providing for time limit for filing decla-
ration, was declared to be ultra vires the power of the State Government since the enabling provision under Section 8(4) of the Central Sales Tax Act had merely delegated the powers to prescribe the manner in which the declaration in Form 'C' was required to be filed.
45. Mr. Shailendra Kumar, learned Standing Counsel for the Council, has strongly relied on the judgment of the Madras High Court in the case of Lords and Angels Teachers Training Institute v State of Tamil Nadu and Others and connected matters wherein the validity of the impugned clauses were upheld by holding that mere apprehension of misuse of the discretion vested in the State Government cannot be a ground for striking down the statutory regulation. He further submits that the Special Leave Petition in the case of Lords and Angels Teachers Training Institute v State of Tamil Nadu and Others, preferred against the said judgment was dismissed by the Supreme Court on 5-9-1997 though without expressing any opinion on the issues dealt upon by the High Court of Madras.
46. According to Mr. Shailendra Kumar, since Special Leave Petition had been dismissed, therefore, in law, it should be taken that the validity of the impugned clauses of the regulations have been upheld by the Supreme Court.
47. Mr. Shailendra Kumar, learned Standing Counsel appearing for the National Council, has further submitted that since 'No Objection Certificate' required to be obtained from the State Government, which is a high power constitutional authority and carries a presumption of acting bona fidely and in public interest, no exception should be taken for such a requirement.
48. In my opinion, the facts stated above clearly belies such an expectation of bona fide use of power by the State Government but for clearly discernible guidelines. Even the Supreme Court in the case of Delhi Transport Corporation v D.T.C. Mazdoor Congress and Others, did not find it safe to rely on any such high authority doctrine. In para 225 of the judgment, Sawanth, J., has held that "the high authority" theory so-called has already been adverted to earlier. Beyond the self-deluding and self-asserting righteous presumption, there is nothing to support it. This theory undoubtedly weighed with some authorities for some time in the past. But its unrealistic pretensions were soon noticed and it was buried without even so much as an ode to it".
49. In my opinion, the submission is wholly misconceived for more than one reason. Firstly, none of the issues which has been raised at the Bar in the present case has fallen for consideration before the Madras High Court. Further, dismissal of Special Leave Petition without assign-
ing any reason does not amount to affirmance of the view taken by the High Court.
50. In the case of Supreme Court Employees' Welfare Association v Union of India and Others, the Apex Court has held that.-
"It has been already noticed that the Special Leave Petitions filed on behalf of the Union of India against the said judgments of the Delhi High Court were summarily dismissed by this Court. It is now a well-settled principle of law that when a Special Leave Petition is summarily dismissed under Article 136 of the Constitution, by such dismissal this Court does not lay down any law, as envisaged by Article 141 of the Constitution, as contended by the learned Attorney General. In Indian Oil Corporation Limited v State of Bihar, it has been held by this Court that the dismissal of a Special Leave Petition in limine by a non-speaking order does not justify any inference that, by necessary implication, the contentions raised in the Special Leave Petition on the merits of the case have been rejected by the Supreme Court. It has been further held that the effect of a non-speaking order of dismissal of a Special Leave Petition without anything more indicating the necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where Special Leave Petition should be granted. In Union of India v All India Services Pensioners Association, this Co. ,t has given reasons for dismissing the Special Leave Petition. When such reasons are given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the Courts within the territory of India. It, therefore, follows that when no reason is given, but a Special Leave Petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court under Article 141 of the Constitution".
51. Recently, again the same view has been taken by the Supreme Court in the case of Income-tax Commissioner v Manjunatheswara Packing Products and Camphor Works, wherein it has been held that.-
"It is true that the said Special Leave Petitions were dismissed summarily but that would not mean that this Court approved the view that was taken by the High Court".
52. For the aforesaid reasons, it is declared that (i) the legislative field pertaining to teacher education being already covered by the Central Legislation, the State Government has ceased to have any executive power under Article 162 of the Constitution of India to take any policy decision with regard to the said subject and the purported policy deci-
sion taken by the State Government not to permit opening of teacher education institution is therefore ultra vires its powers and therefore declared non est in law. Even otherwise, as noticed above, the infraction of the policy decision by the Government itself for extraneous reasons has led to its nullification, and (ii) clauses (e) and (f) of Regulation 5 of the Central Regulations, which declared as ultra vires the powers of the National Council and are thus struck down. Consequently, the decision taken by the Regional Committee or the Appellate Authority refusing recognition on the ground that non-grant of 'No Objection Certificate' by the State Government stands vitiated in law.
53. In the result the writ petition is allowed with direction to the respondent-Regional Committee to consider/reconsider the application filed by the petitioner-institution for grant of recognition under Section 14 of the Central Act on its merits without insisting for obtaining 'No Objection Certificate' from the State Government. In the circumstances, there will be no order as to costs.