Madras High Court
Bharathidasan University vs Dhanalakshmi Srinivasan on 23 February, 2005
Author: P. Sathasivam
Bench: P. Sathasivam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 23/02/2005
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice S.K. KRISHNAN
Writ Appeal No. 4204 of 2004
and Writ Appeal Nos., 4205, 4237, 4240, 4241 of 2004,
and
104, 150, 180, 305, 306 and 307 of 2005
and
W.A.M.P.Nos. 7969, 7970, 8026, 8029 to 8031/2004, 150/2005,
235/2005,299/2005,and 553 to 557/2005
W.A.No.4204/2004
Bharathidasan University,
represente
Palkalaiperur, Tiruchirapalli-620 024. ..Appellant/Respondent.
-Vs-
Dhanalakshmi Srinivasan,
Educational and Charitable Trust,
represented by its Chairman,
Perambalur-621 212. .. Respondent/Petitioner.
W.A.No. 4205/2004
Bharathidasan University,
represented by its Registrar-in-charge,
Palkalaiperur, Tiruchirapalli-620 024.
..Appellant/4th Respondent.
Vs.
1. M.A.S. Subbiah Chettiar
Educational and Charitable Trust,
represented by its Managing Trustee,
West CIT Nagar, Chennai-600 035. ..Petitioner.
2. The State of Tamil Nadu,
represented by Secretary to
Government, Higher Education Department,
Fort St. George, Chennai-600 009. ..1st Respondent.
3. The Regional Director,
National Council for Teacher
Education, C.S.D. Building,
HMT Post, Bangalore-560 031 ..2nd Respondent.
4. The Director of College
Education, Chennai-600 006. .. 3rd Respondent.
.. Respondents.
W.A.No. 4237/2004
1 State of Tamil Nadu,
represented by its Secretary,
Higher Education Department,
Fort St. George, Chennai-600 009.
2. Director of Collegiate Education,
Chennai-600 006.
.. Appellants/Respondents 1 and 3.
Vs.
1. M.A.S. Subbiah Chettiar
Educational and Charitable Trust,
represented by its Managing Trustee,
Chennai-600 035. ..Petitioner.
2. The Regional Director,
National Council for Teacher
Education, C.S.D. Building,
HMT Post, Bangalore-560 031 ..2nd Respondent.
3. The Registrar,
Bharathidasan University,
Palkalaiperur, Trichy. ..4th Respondent.
..Respondents.
W.A.No. 4240/2004
State of Tamil Nadu,
represented by its Secretary,
Higher Education Department,
Fort St. George, Chennai-600 009.
..Appellant/1st Respondent.
Vs.
1. Kasthuriba Gandhi College of
Education, run by Freedom Fighter
N. Kandasamy Educational Trust,
Athanur village, Rasipuram Taluk,
Namakkal District,
represented by its President
K. Chidambaram. .. Petitioner.
2. The Regional Director,
National Council for Teacher
Education, C.S.D. Road,
HMT Post, Jalahalli,
Bangalore-32 ..2nd Respondent.
3. The Registrar,
Periyar University, Salem. ..3rd Respondent.
.. Respondents.
W.A.No. 4241/2004
State of Tamil Nadu,
represented by its Secretary,
Higher Education Department,
Fort St. George, Chennai-600 009.
..Appellant/1st Repspondent.
Vs.
1. Parasakthi College of Education
Run by Muthuramaswamy Andal
Educational and Social Trust,
S. Kottaipatti, Peraiyur Taluk,
Madurai District-625 527,
represented by its Secretary,
M. Jagadeesan. ..Petitioner.
2. The Regional Director,
National Council for Teacher
Education, C.S.D. Road,
HMT Post, Jalahalli,
Bangalore-32 ..2nd Respondent.
3. The Registrar,
Madurai Kamaraj University,
Madurai. ..3rd Respondent.
.. Respondents.
W.A.No. 104/2005
The University of Madras,
represented by its
Registrar, Chepauk, Chennai-5.
..Appellant/Respondent.
Vs.
Christ Educational Trust,
represented by its Chairman,
No.74, Nehru Street,
Kumaran Nagar, Padi,
Chenni-600 050.
..Respondent/Petitioner.
W.A.No.150/2005
The University of Madras,
represented by its
Registrar, Chepauk, Chennai-5.
..Appellant/Respondent.
Vs.
Loordhu Ammal Educational Trust,
represented by its Secretary,
No.1A, Chari Street,
North Usman Road,
T.Nagar, Chennai-17.
..Respondent/Petitioner.
W.A.No.180/2005
The Registrar,
Madurai Kamaraj University,
Madurai.
.. Appellant/3rd Respondent.
Vs.
1. Parasakthi College of Education
Run by Muthuramaswamy Andal
Educational and Social Trust,
S. Kottaipatti, Peraiyur Taluk,
Madurai District,
represented by its Secretary,
M. Jagadeesan. ..Petitioner.
2. The State of Tamil Nadu,
represented by its Secretary,
Higher Educational Department,
Fort St. George, Chennai-9. .. 1st Respondent.
3. The Regional Director,
National Council for Teacher
Education, C.S.D. Road,
HMT Post, Jalahalli,
Bangalore-32 ..2nd Respondent.
.. Respondents.
W.A.No.305/2005
The Periyar University,
represented by its Registrar,
Salem-11.
.. Appellant/3rd Respondent.
Vs.
1. Kasthuriba Gandhi College of Education,
Run by Freedom fighter N. Kandasamy
Educational Trust, Athanur village,
Rasipuram Taluk, Namakkal District,
represented by its President
K. Chidambaram. ..Petitioner.
2. The State of Tamil Nadu,
represented by its Secretary,
Higher Education Department,
Fort St. George, Chennai-9. ..1st Respondent.
3. The Regional Director,
National Council for Teacher Education,
CSD Road, HMT Post, Jalahalli,
Bangalore-32. ..2nd Respondent.
.. Respondents.
W.A.No. 306/2005
The Periyar University,
represented by its Registrar,
Salem-11.
.. Appellant/Respondent.
Vs.
Pavai Varam Educational Trust,
represented by its Chairman
V. Natarajan, Rasipuram, 637 408.
.. Respondent/Petitioner.
W.A.No. 307/2005
The Periyar University,
represented by its Registrar,
Salem-11.
.. Appellant/Respondent.
Vs.
Madras Education and Research
Integrated Trust (MERIT),
represented by its Managing Trustee
T. Padmavathi.
.. Respondent/Petitioner.
Writ Appeals filed under Clause 15 of Letters Patent against judgement
of Single Judge of this Court dated 25-11-2004, made in Writ Petition No.
27757 of 2004;
29-11-2004, made in Writ Petition No. 28709/2004;
25-11-2004, made in Writ Petition No. 28009/2004;
25-11-2004, made in Writ Petition No. 28335/2004;
06-12-2004, made in Writ Petition No. 35283/2004;
06-12-2004, made in Writ Petition No. 34823/2004;
25-11-2004, made in Writ Petition No. 28009/2004;
25-11-2004, made in Writ Petition No. 28356/2004; and
25-11-2004, made in Writ Petition No. 27030/2004.
!Mr. P. Subbaya assisted by Mr. C.K. Chandrasekaran:-
Appellant in W.A.Nos. 4202, 4205/2004 and
3rd respondent in W.A.No. 4237/2004.
Mr. R. Muthukumarasamy, Addl. Advocate General,
assisted by Mr.V.Karthikeyan, Addl.Govt.,Pleader ( Edn.):- For Appellant in
W.A.Nos.4237,4240, 4241 and 305 to 307/2005 and respondents 2,4 in
W.A.No.4205/2004,for R-3 in W.A.No.4240/2004
and for 2nd respondent in W.A.No.180/2005.
Mr. R. Muthukumarasamy, Addl. Advocate General,
assisted by Mr. N. Rajan:- Appellant in W.A.Nos.
104 and 150/2005.
^Mr. P. Jyothimani:-For appellant in W.A.No.180/2005
and for 3rd respondent in W.A.No.4241/2004.
Mr. R. Krishnamoorthy, Senior counsel for Mr.
A. Jenasenan:- For Respondent in W.A.No.4204/2005.
Mr. N. Paul Vasanthakumar:- For 1st Respondent in
W.A.Nos. 4205, 4237/2004 and 307/2005.
Mr. S. Udayakumar, Senior Central Government
Standing counsel:- For R-3 in W.A.Nos. 4205/2004,
180/2005 and 305/2005; and for R-2 in W.A.Nos.
4237, 4240 and 4241/2004.
Mr. K. Chandru, Senior counsel for Mr. B. Rabu
Manohar:- For R-1 in W.A.Nos. 4240, 4241/2004
180/2005 and 305/2005.
Mr. E. Sampathkumar, Govt., Advocate for R-2
in W.A.No. 305/2005.
No appearance for Respondent in W.A.Nos. 104 and
150/2005.
:COMMON ORDER
(Order of Court was made by P. Sathasivam, J.,) Higher Education Department of State of Tamil Nadu, Bharathidasan University, Tiruchirapalli, aggrieved by the common order of the learned Single Judge dated 25-11-2004, made in W.P.No. 27030/2004 etc., batch, directing the Universities to consider the applications submitted by the petitioner-Institution for grant of affiliation for conducting teacher training course for the academic year 2004-20 05 without insisting on the production of the No Objection Certificate from the State Government, have filed the above Writ Appeals. Since the issues raised in all the Writ Appeals are one and the same, they are being disposed of by the following order.
2. For convenience, we shall refer the facts leading to the filing of Writ Appeal No. 4204/2004, filed by Bharathidasan University, Tiruchirapalli. Dhanalakshmi Srinivasan Educational and Charitable Trust, Perambalur, aggrieved by the proceedings of the Bharathidasan University, Tiruchirapalli dated 23-9-2004 declining to consider and grant affiliation to their college to establish a B.Ed., training course, has filed W.P.No. 27757/2004 for quashing the same and for consequential direction to the University to consider their application for affiliation for B.Ed., course for their college in the name and style of Dhanalakshmi Srinivasan College of Education, Perambalur for the academic year 2004-2005. According to them, their Trust desired to establish a Teacher Training College at Perambalur. The course in Teacher Education falls within the purview of the National Council for Teacher Education constituted under the National Council for Teacher Education Act, 1993 (Act 73/1993) ("NCTE Act" in short). As per the NCTE Act and the National Council for Teacher Education Regulations, 2002, if a Management or Institution desired to establish a Teacher Training College or a Teacher Training Institute, it has to obtain a No Objection Certificate (NOC) from the State Government and make an application to the National Council for Teacher Education ( NCTE) along with the said NOC. Accordingly, the petitioner submitted an application to the State Government for grant of NOC to establish a Teacher Training College. The State Government passed orders on 01-01-2004 rejecting their claim. Since the State Government rejected their application, the petitioner filed W.P.No. 19419/2004 before this Court for issuance of a Mandamus, directing the NCTE to consider their application for grant of recognition/approval to start a Teacher Training College. On consideration of that matter, this Court on 12-7-2 004 directed the NCTE to follow the judgement of the Supreme Court in 2003 3 SCC 321 and consider their applications for recognition. Thereafter, the NCTE conducted an inspection and after verifying the infrastructural facilities of the petitioner's college, issued orders on 07-09-2004, granting recognition to their college of education known as Dhanalakshmi Srinivasan College of Education for a period of one year from the academic year 2004-2005 with an annual intake of 100 students. They have got all the infrastructural facilities to start the Teacher Training College in their campus and had also obtained approval/recognition from the NCTE and what remained was only to get the necessary affiliation; accordingly, they submitted an application for the grant of affiliation to the Bharathidasan University on 9-9-2004 along with a covering letter stating that they had complied with 100 % of the requirement including permanent building, library, laboratory facilities, staff etc., as per the NCTE norms and requested affiliation by enclosing a Demand Draft towards the application fee. However, they received a reply from the University on 23-9-2004, informing that the institution should approach the University for affiliation after obtaining orders from the State Government permitting them to establish a self-financing B.Ed., college in accordance with the provisions of the University Act and the Tamil Nadu Private Colleges ( Regulation) Act. The said order declining to consider and grant affiliation to their college is illegal, contrary to law laid down by the Supreme Court. In these circumstances, having no other remedy, the petitioner filed the said writ petition before this Court, and the same was taken up for hearing along with other writ petitions filed by other similarly placed educational institutions. By a common order dated 2 5-11-2004, the learned Single Judge, after holding that the insistence of NOC from the State Government by the universities for establishing teacher training college is totally unsustainable, allowed all the writ petitions filed by the Educational Institutions and directed the Universities to consider each of the applications submitted by the Institutions for grant of affiliation without reference to the prior permission from the State Government. Questioning the same, the Universities and the State Government have preferred the above Writ Appeals.
3. Heard Mr. R. Muthukumarasamy, learned Additional Advocate General, for the State and for University of Madras and Periyar University, Salem; Mr. P. Subbaya, learned counsel for Bharathidasan University; Mr. P. Jothimani, learned counsel for Madurai University; Mr. R. Krishnamoorthy, learned senior counsel for Dhanalakshmi Srinivasan Educational and Charitable Trust; Mr. K. Chandru, learned senior counsel for Kasthuriba Gandhi College of Education and Parasakthi College of Education; Mr. N. Paul Vasanthakumar, for M.A.S. Subbiah Chettiar Educational and Charitable Trust and for Madras Education and Research Integrated Trust; Mr. S. Udayakumar, learned Senior Central Government standing counsel for NCTE.
4. The main contentions put-forward by the learned Additional Advocate General appearing for the State and some of the Universities and the learned counsel for other Universities are as follows:
i) Neither the NCTE Act nor the National Council for Teacher Education Regulations, 2002 deal with the approval to the establishment of a college.
Sections 14 and 15 of the NCTE Act only deal with recognition of the Teacher Training course in a new institution or in an existing institution; hence the NCTE Act cannot be said to cover the entire field relating to Teacher Education in colleges and consequently the State Enactment dealing with the permission to establish the College would continue to be valid.
ii) The provisions contained in All India Council for Technical Education Act, 1987 ("AICTE Act" in short) and the Indian Medical Council Act, 1956 are comprehensive and cover the area of establishment of colleges as well. Similarly the Supreme Court, in Adhiyaman College of Engineering case [1995 (4) SCC 104] relating to AICTE Act and Thirumuruga Kripananda Variar's case [1996 (3) SCC 15] relating to establishment of medical colleges, found that those Acts occupy the whole field. However, Sections 14 and 15 of NCTE Act deals only with recognition of the course or the institution and does not deal with the establishment of a college. In such a circumstance, the findings of the learned Single Judge that the provisions of the AICTE Act or the Indian Medical Council Act are in pari materia with the NCTE Act and that therefore, the directions of the Supreme Court in the above cases would apply to NCTE Act also, may not be correct and requires to be set aside.
iii) The concept of establishment of a new college and permission or approval thereof is not covered by the Central Act. The Central Act which confines itself to recognition of the course cannot be said to cover the entire field and hence the State Enactments dealing with permission for the establishment of a college or institution would still survive.
iv) The provision dealing with permission and approval for establishment and recognition of colleges (higher education) would be matters referable to entry 25 of list III and, therefore, the State Government is well within their powers. The contrary conclusion arrived by the learned Single Judge is liable to be set aside.
5. The main submission of the various educational institutions made through their counsel are as follows:
(i) Since Sections 14 and 15 of NCTE Act are similar to the one contained in Section 10 (k) of AICTE Act or 10-A of the Indian Medical Council Act, the judgements of the Supreme Court in Jaya Gokul's case and Thirumuruga Kirubananda Variar's case (cited supra) would clearly apply to the NCTE Act and therefore, the findings of the learned Single Judge should be confirmed.
(ii) The intention of the Parliament in enacting the NCTE Act is clear to the effect that the entire field relating to teacher education is covered by the Central Act and, therefore, the State Enactments would become void and redundant.
(iii) Notwithstanding different terminology that has been used, the substance of the same is acceptance of the institution by the appropriate authority which would be sufficient to hold that Central Act covers the entire field relating to teacher education, thereby resulting in the said Act would become void.
(iv) The NCTE Act is referable to Entry 66 of List 1 of the VII Schedule to the Constitution and, therefore, the State Enactments requiring permission would be void.
(v) Section 14 (6) of the NCTE Act would make it clear that after granting recognition under Section 14 (3), it is incumbent on the Examining Body, which is the University, to grant affiliation which would go to show that no other permission or approval is contemplated by the Act.
6. We have considered the materials placed, relevant provisions of NCTE Act and corresponding provisions in AICTE Act, The Indian Medical Council Act, 1956 and the common order of the learned Single Judge as well as the rival contentions.
7. Before considering the submissions made on either side, it would be useful to refer the relevant provisions of the NCTE Act.
"Section 2 (d) "examining body" means a University, agency or authority to which an institution is affiliated for conducting examinations in teacher education qualifications;
Section 2 (e) "institution" means an institution which offers courses or training in teacher education;
Section 2 (i) "recognised institution" means an institution recognised by the Council under section 14.
Section 2 (j) "Regional Committee" means a committee established under section 20;
Section 2 (l) "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;
Chapter IV of the Act deals with recognition of teacher education institutions.
Section 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 xx xx xx (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 xx xx (4) Every order granting or refusing recognition to an institution for a course or training in teacher education under subsection (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 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."
Section 15 speaks about permission for a new course or training by recognised institution which we are not concerned in these appeals.
"Section 16. Affiliation 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."
Section 18 enables a person aggrieved by an order made under section 14 or section 15 or section 17 of the Act to prefer an appeal to the Council. Section 20 refers to establishment of Regional Committees and composition. In exercise of the powers conferred under clauses (f) and (g) of sub-section (2) of Section 32 read with Sections 14 and 15 of the NCTE Act, 1993 73 of 1993), the National Council for Teacher Education has framed Regulations called The National Council for Teacher Education Regulations, 2002 ("Regulations, 2002"
in short). Among the Regulations, we are concerned with Regulation 6 (i):
"Regulation 6. Requirement of No Objection Certificate from the State Government/U.T. Administration.- (i) Application from every institution seeking recognition to start a course or training in teacher education or from an existing institution seeking permission to start a new course or training and/or increase in intake shall be accompanied by a No Objection Certificate (NOC) from the State or Union Territory in which the institution is located."
8. Since the main argument advanced on behalf of the educational institutions was on the basis of the decisions of the Supreme Court dealing with in AICTE Act and the Indian Medical Council Act,1956, it would also be useful to refer the relevant provisions of the said Acts. Section 10 (1)(k) of the AICTE Act runs as follows:
"Section 10. Functions of the Council.- (1) It shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under this Act, the Council may,-
(a) xx xx
(k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;
Section 10-A of The Indian Medical Council Act, 1956 runs as follows:
"Section 10-A. Permission for establishment of new medical college, new course of study, etc.- (1) Notwithstanding anything contained in this Act or any other law for the time being in force-
(a) no person shall establish a medical college; or
(b) no medical college shall-
(i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training).
except with the previous permissions of the Central Government obtained in accordance with the provisions of this section."
9. It would also be useful to refer the relevant provisions from the Tamil Nadu Private Colleges (Regulation) Act, 1976 wherein the word 'Private college' is defined as:
"Section 2 (8) "private college" means a college maintained by an educational agency and approved by, or affiliated to, a university but does not include a college."
(a) established or administered or maintained by the Central Government or the Government or any local authority or any university; or
(b) giving, providing or imparting religious instruction alone, but not any other instructions;"
As per Section 3 of the Act, no person shall without the permission of the Government and except in accordance with the terms and conditions specified in such permission, establish, on or after the date of commencement of the Act, any private college. In addition to the same, the private college has to obtain necessary affiliation from the University concerned. Section 4 (1) mandates that educational agency of every private college proposed to be established on or after the date of commencement of the Act shall make an application to the Government for permission to establish such college. Sub-section (2) of Section 4 prescribes certain conditions to be fulfilled before making an application for permission. Section 5 speaks about grant of permission by the Government and Section 6 deals with permission to be granted in certain cases. Rule 2 (b) of the Tamil Nadu Private Colleges ( Regulation) Rules, 1976 defines the word "college" as follows;
"Section 2 (b) "College" means and includes Arts and Science College, Teachers Training College, Physical Education College, Oriental College, School or institute of Social Work and Music College maintained by the educational agency and approved by, or affiliated to the University;
10. Apart from these provisions, reliance was placed on judgement of the Supreme Court in (i) Adhiyaman College of Engineering case [1995 (4) SCC 104] in respect of scope of the AICTE Act,(ii) Thirumuruga Kripanandavariar's case [1996 (3) SCC 15] in respect of the Indian Medical Council Act; and (iii) St. Johns case [2003 (3 ) SCC 321].
11. Before going into the provisions of the NCTE Act, NCTE Rules, 1997 and Regulations, 2002, let us consider the decisions of the Supreme Court in the above referred three cases. In State of Tamil Nadu v. Adhiyaman Educational and Research Institute [(1995 ) 4 Supreme Court Cases 104], while dealing with the provisions of AICTE Act, Tamil Nadu Private Colleges (Regulation) Act and Rules and Madras University Act with reference to legislative competence of the State and Central Government, Their Lordships have held: (para 30 and 41) "Para 30......Thus, so far as these matters are concerned, in the case of the institutes imparting technical education, it is not the University Act and the University but it is the Central Act and the Council created under it which will have the jurisdiction. To that extent, after coming into operation of the Central Act, the provisions of the University Act will be deemed to have become unenforceable in case of technical colleges like the engineering colleges. As has been pointed out earlier, the Central Act has been enacted by Parliament under Entry 66 of List I to coordinate and determine the standards of technical institutions as well as under Entry 25 of List III. The provisions of the University Act regarding affiliation of technical colleges like the engineering colleges and the conditions for grant and continuation of such affiliation by the University shall, however, remain operative but the conditions that are prescribed by the University for grant and continuance of affiliation will have to be in conformity with the norms and guidelines prescribed by the Council in respect of matters entrusted to it under Section 10 of the Central Act.
xx xx Para 41. What emerges from the above discussion is as follows:
(i) xx xx
(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.
(iii) xx xx
(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent list, will have to be determined by the examination of the two laws and will depend upon the facts of each case."
12. In Thirumuruga Kirupananda Variyar Thavathiru Sundaraswamigal Medical Educational and Charitable Trust v. State of Tamil Nadu [(1996) 3 Supreme Court Cases 15], the Supreme Court had an occasion to consider the provisions of the Indian Medical Council Act, 1 956 (Central Act) and Dr. M.G.R. Medical University, Tamil Nadu Act (State Act). The appeals filed by Thirumuruga Kirupananda Variyar Thavathiru Sundaraswamigal Medical Educational and Charitable Trust (" Trust' in short) relate to the establishment of a medical college at Salem in the State of Tamil Nadu. The Tamil Nadu State legislature had enacted Dr. M.G.R. Medical University, Tamil Nadu (Amendment and Validation) Act, 1989 on 6-7-90. By the said Act which was brought into force with effect from 24-9-1987, a Proviso was inserted in subsection (5) of Section 5 of the Medical University Act whereby it was prescribed that "no college shall be affiliated to the University unless the permission of the Government to establish such college has been obtained and the terms and conditions, if any, of such permission have been complied with". Similarly, a proviso was also inserted in sub-section (7) of Section 5 which prescribes that "no institution shall be approved by the University unless the permission of the Government to establish such institution has been obtained and the terms and conditions, if any, of such permission have been complied with".
The University, after conducting a joint inspection, rejected the application for affiliation submitted by the Trust. The said order was challenged by way of writ petition and a learned Single Judge of this Court, by judgement dated 7-2-92, quashed the said order of the University and remitted back to the University for re-consideration. Feeling aggrieved by the judgement of the learned Single Judge, the State filed an appeal before a Division Bench of this Court. The Trust also filed an appeal against the said judgement of the learned Single Judge. During the pendency of both these appeals, the President of India promulgated the Indian Medical Council (Amendment) Ordinance ( Ordinance No.13 of 1992) on 27-8-92. The said Ordinance was subsequently replaced by the Indian Medical Council (Amendment) Act, 1993 ( Central Act No.31 of 1993) which was brought into force with effect from 2 7-8-92. By the Central Act, Sections 10-A, 10-B and 10-C were inserted in the Indian Medical Council Act, 1956. Section 10-A deals with the establishment of a new medical college or opening of a new or higher course of study or training and prescribes that this can be done only with the previous permission of the Central Government obtained in accordance with the provisions of the said section. In view of the said amendments, the Central Government was impleaded as a party in the writ appeals which were pending before the Division Bench of this Court. The stand of the Central Government was that after the promulgation of Ordinance No.13 of 1992, which was later on replaced by the Central Act, the Central Legislation has occupied the entire field and the State Legislation must be treated to have been rendered inoperative and, as a result, the approval of the State Government was no longer necessary for establishing a medical college as required under proviso to sub-section (5) of Section 5 of the Medical University Act. The Division Bench after holding that the amendment introduced in clause (5) of the Medical University Act by the State Act was not, in any way, affected by the Central Legislation and that after even after insertion of Section 10-A in the Indian Medical Council Act, 1956 prior permission of the State Government was required for establishing a medical college, allowed the writ appeal filed by the State Government and dismissed the writ appeal filed by the Trust. Questioning the same, the Trust has filed appeal to the Supreme Court. After considering the legislative power in respect of education with reference to various Entries in List provided in the Constitution and after considering the Medical University Act-State Act and the Indian Medical Council Act (Central Act), concluded thus: (para 31) "Para 31. It would thus appear that in Section 10-A Parliament has made a complete and exhaustive provision covering the entire field for establishing of new medical colleges in the country. No further scope is left for the operation of the State Legislation in the said field which is fully covered by the law made by Parliament. Applying the tests laid down by this Court, it must be held that the proviso to sub-section (5) of Section 5 of the Medical University Act which was inserted by the State Act requiring prior permission of the State Government for establishing a college is repugnant to Section 10-A inserted in the Indian Medical Council Act, 1956 by the Central Act which prescribes the conditions for establishing a new medical college in the country. The said repugnancy is, however, confined to the field covered by Section 10-A, viz., establishment of a new medical college and would not extend to establishment of other colleges."
13. In Jaya Gokul Educational Trust v. Commissioner and secretary to Government, Higher Education Department [(2000) 5 Supreme Court Cases 231], the appellant is a Trust which wanted to establish a self-financing engineering college and submitted an application during 1994-95 to University of Kerala as well as to AICTE. Ultimately, the Government refused to give permission by their letter dated 16-8-1996. Thereafter, the appellant filed a writ petition before the Kerala High Court for quashing the said order of the Government and for a direction to sanction and establish an engineering college. The learned Single Judge of the kerala high Court, by his judgement dated 14-1-1997, allowed the writ petition and directed Mahatma Gandhi University to consider the appellant's application for permanent affiliation without reference to the letter of the Government. Against the said judgement of the learned Single Judge, the Government filed a writ appeal. The Division Bench of the kerala High Court allowed the appeal and set aside the order of the Single Judge and dismissed the writ petition. As against the judgement of the Division Bench, the Jaya Gokul Educational Trust has filed an appeal before the Supreme Court. After considering the decision in Adhiyaman Educational and Research Institute case (1995) 4 SCC 104 and the provisions of AICTE Act, particularly Section 10 (k), Their Lordships have held: (para 17, 23, 28) "Para 17. We shall now refer to the relevant paras of the above judgment dealing with the question of "approval" for establishing technical institutions under section 10 (k) of the AICTE Act. The Tamil Nadu Rules of 1976 made under the 1976 Act had no doubt excluded technical institutions from the purview of the Rules but this Court pointed out that the Rules were capable of being amended so as to extend to such technical institutions and that if they were so extended, the State Act of 1976 and the Rules would require "approval" by the State Government and that would be void. It was stated (in SCC p.124, para 27) that inasmuch as the State Act "will overlap and will be in conflict with the provisions of the Central Act in various areas....,granting approval for starting new technical institutions...,inspection of technical institutions... which matters are covered by the Central Act".
This Court then referred to the Madras University Act, 1923. It was held (SCC p.126) that Section 10 of the Central Act dealt with various matters (including granting approval for starting new technical institutions), and that so far as these matters were concerned "it is not the University Act and the University but it is the Central Act and the Council created under it which will have the jurisdiction. To that extent, after the coming into operation of the Central Act, the provisions of the University Act will be deemed to have become unenforceable". (SCC pp.126-27, para 30) Thus, in the two passages set out above, this Court clearly held that because of Section 10(k) of the Central Act which vested the powers of granting approval in the Council, the T.N. Act of 1976 and the University Act, 1923 could not deal with any questions of "approval" for establishment of technical institutions. All that was necessary was that under the Regulations, the AICTE Council had to consult them."
"Para 23. Thus we hold, in the present case that there was no statutory requirement for obtaining the approval of the State Government and even if there was one, it would have been repugnant to the AICTE Act. The University Statute 9(7) merely required that the "views" of the State Government be obtained before granting affiliation and this did not amount to obtaining "approval". If the University statute required "approval", it would have been repugnant to the AICTE Act...."
"Para 28..... Procedure and conditions for affiliation could not be inconsistent with the provisions of the Central Act, in particular Section 10(k) of the Regulation, and the University could not seek approval of the Government. The University was also one of the agencies consulted by the council of AICTE under Regulation 8. Once that was over, and approval was granted by AICTE, if there was any default on the part of the College in compliance with the conditions of approval, the only remedy for the University was to bring those facts to the notice of AICTE so that the latter could take appropriate action."
14. As stated earlier, there were two sets of writ petitions, the first set is to quash the orders of the Universities concerned and to direct the Universities to consider their applications for affiliation without insisting upon the orders/permission from the State Government and the second set is for a Mandamus directing the Universities to consider their applications for affiliation on merits. The main contentions of the respondents/writ petitioners put-forward before the learned Single Judge were that after NCTE Act has come into force, the provisions of the Tamil Nadu Private Colleges ( Regulation) Act, 1976 and the Statutes of the Universities which require permission from the State Government to establish a college as a condition precedent for the grant of affiliation would be inoperative. It was further contended that the NCTE Act was a Parliamentary enactment and having regard to the fact that the said enactment covered the entire field relating to teacher education, the provisions in the State enactment like the Tamil Nadu Private Colleges (Regulation) Act or the Statutes of the Universities which require permission of the State Government to establish a college as a condition for affiliation would be repugnant to the Central law and hence void and have no effect.
15. Learned Additional Advocate General by highlighting the differences between the AICTE Act and the Indian Medical Council Act as well as the NCTE Act, vehemently contended that the provisions in Sections 14 and 15 of the NCTE Act only deal with the recognition of Teacher Training course in a new institution or in an existing institution. In other words, according to him, NCTE Act and the Regulations deal with the norms and standards for teacher education and the requirements for recognition of Teacher Training course. He also contended that neither the Act nor the Regulation deal with the approval to the establishment of a college. In such circumstances, according to him, NCTE Act cannot be said to cover the entire field relating to teacher education in colleges and consequently the State enactment dealing with the permission to establish the College would continue to be valid.
16. Per contra, Mr. R. Krishnamoorthy and Mr. K. Chandru, learned senior counsel appearing for the Institutions, advanced their argument that Sections 14 and 15 of the NCTE Act are similar to one contained in Section 10 (k) of the AICTE Act or Section 10-A the Indian Medical Council Act, that in such a circumstance, the judgement of the Supreme Court in Jaygokul case and Thirumurua Kirupananda Variar's case (cited supra) would clearly apply to the NCTE Act and that, therefore, the finding and the ultimate conclusion of the learned Judge are to be accepted.
A combined reading of the NCTE Act, more particularly Section 14 (6) read with Section 16 would go to show that what is contemplated by the said Act is a recognition for a new institution under Section 14, and additional course in an existing institution under section 15, which is to be followed by affiliation by the concerned University.
17. We also perused the different terminology or words like "permission"
"approval" "recognition" are used in the different provisions, the content of all the provisions is the same. In other words, notwithstanding different terminology that has been used, the substance of the same is acceptance of the institution by the appropriate authority which would be sufficient to hold that the Central Act covers the entire field relating to teacher education. Though it is pointed out that while the AICTE Act and the Indian Medical Council Act refer to the grant of permission or approval for the establishment of a college, the provisions of the NCTE Act does not deal with the establishment of a college but covers the area of recognition alone. In the light of the provisions referred to above and the interpretation of the Supreme Court with reference to the same, we reject the contention of the learned Additional Advocate General and hold that the Central Act covers the entire field of teacher education.
18. Now we shall consider the power to legislate on the subject of education. Previously the said power was provided in Entry 11 of List II of Schedule VII of Constitution of India. By virtue of 42nd Amendment of the Constitution which was given effect to from 3-1-1977, the subject of education has been classified as follows:
"Union list - list I - Entry 66 Co-ordination and determination of standards in institutions for higher education or Research and Scientific and technical institutions. Concurrent list - list III - Entry 25 Education including technical education, medical education and Universities, subject to the provisions of Entries 63, 64, 65, and 66 of list 1; Vocational and technical training of labour."
From the above said re-classification of the legislative source of power on the subject of education, it is seen that the Union of India is competent to enact laws relating to higher education, technical institutions etc. The Supreme Court of India in interpreting the said Entries, has categorically held that there can be no State enactment repugnant to the law enacted by the Parliament and that the provisions contained in any of the State enactment such as Tamil Nadu Private Colleges Act, Madras University Act etc., which are inconsistent to the provisions contained in any of the Central Acts such as AICTE Act, MCI Act, Dentist Act etc., are ultra vires to that extent of repugnancy. Useful reliance was also placed on the same judgements in Adhiyaman college case; Thirumuruga Kirupananda Variar's case; and Jaya Gokul's case which are in the following effect:-
(1) 1995 (4) SCC 104. In this decision it has been categorically held that neither the State Government nor the University have got power to enact law on the subject falls under Entry 66 of List I and that the existing law to the extent of inconsistent with the provisions made in the AICTE Act is ultra vires and unenforceable.
(2) 1996 (3) SCC 15. In this decision the Supreme Court has held that prior permission of State Government to start a new Medical College is invalid on the ground of repugnancy. It is further held that Section 5 (5) of the Medical University Act enacted by the State Act is held as repugnant to Section 10-A of Indian Medical Council Act.
(3) 2000 (5) SCC 231. By re-capsulating the dictum laid down in Adhiyaman's case, the Supreme Court specifically ruled that the University cannot impose conditions for affiliation in contravention of the provisions contained in the Central Act viz., AICTE Act. Thus, the position of law and the validity of existing law of the State Enactments have been made crystal clear in the above stated judgements of the Supreme Court.
19. The Teacher Training Institution (B.Ed., course) is referable to Entry 66 of List I and as such the Parliament promulgated the NCTE Act 1993 which came into force with effect from 1-7-19 95. The NCTE framed Regulations 2002 in exercise of power under Sections 14, 15 and 32 of NCTE Act. In this regard, it is also relevant to note the preamble of the NCTE Act which runs as follows:
"An Act to provide for the establishment of a National Council for Teacher Education with a view to achieving planned and coordinated 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 matter connected therewith."
We have already referred to the Entry 66 of List I which is a Union list. The preamble of the NCTE Act reflects the said Entry i.e., Entry 66 of List I. The provisions contained in the NCTE Act and the Regulations made thereunder regulate the establishment and administer the Teacher Training Institutes. We have already referred to the various provisions of the NCTE Act. Adequate provisions were made in regard to granting of recognition to start a Teacher Training Institute and to grant affiliation by examining body.
20. It is the submission of Mr. K. Chandru, learned senior counsel appearing for some of the Institutions that the NCTE Act is referable to Entry 66 of List 1 of the VII Schedule to the Constitution and, therefore, the State Enactments requiring permission would be void. A reference was made to a judgement of the Supreme Court in Osmania University Teachers' Association v. State of Andhra Pradesh, reported in 1987 4 SCC 671. The said decision relates to question as to the constitutional validity of the Andhra Pradesh Commissionerate of Higher Education Act, 1986. The question that was posed before the Supreme Court is whether the enactment falls within Entry 66 List I or Entry 25 List III - Concurrent List of the Seventh Schedule to the Constitution. The High Court of Andhra Pradesh has upheld its validity by holding that the Act falls under the latter entry, but granted a certificate for leave to appeal to the Supreme Court. After considering various provisions therein and Entry 66 of List I as well as Entry 25 of List III, Their Lordships have concluded thus: (para 13, 14 and 15) "13. Till January 3, 1977, education was a State subject under Entry 11 in List II. By the Forty-second Amendment Act, 1976, Entry 11 was deleted and it was placed in the Concurrent List by enlarging the Entry 25, as set out above.
14. Entry 25 List III relating to education including technical education, medical education and universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the country is maintained. The standard of Higher Education including scientific and technical should not be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to coordinate and determine the standards for higher education. That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state that such a co-ordinate action in higher education with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to 'education' has been distributed between List I and List III of the Seventh Schedule.
15. The Parliament has exclusive power to legislate with respect to matters included in List I. The State has no power at all in regard to such matters. If the State legislates on the subject falling within List I that will be void, inoperative and unenforceable."
In the light of the provisions in the NCTE Act which we have already referred to, the above judgement of the Supreme Court [(1987) 4 SCC 6 71] is directly on the point and the contention relating to want of State power with reference to Entries in the Constitution is wellfounded.
21. It is not in dispute that the field relating to education was originally in Entry 11 of List 2 and Entry 25 of List III. Entry 11 has been deleted and its content transferred to entry 25 of list III. The said entry namely 25 is subject to entry 63 to 66 of list 1 of the VII Schedule to the Constitution. Entry 66 is the one dealing with co-ordination and determination of standards in institution for higher education or research and scientific and technical institutions. The provisions in the NCTE Act, which lays down standards in teacher education or matters relating to co-ordination would be referable to Article 66 of list I of the VII Schedule to the Constitution. Though learned Additional Advocate General would submit that it is incorrect to assume that all the provisions in the entire Act is referable to Entry 66 of list 1 and no part of it is referable to entry 25 of list 3 and major portions of the NCTE Act would be referable to entry 25 of list 3 while only those portions dealing with standards of teacher education would be referable to entry 66 of list 1, in the light of the earlier discussion and the conclusion of the Supreme Court in Osmania University Teachers' Association case (cites supra), we are unable to accept the argument of the learned Additional Advocate General. The entire case of the writ petitioners-various educational institutions is based on the allegations that the Central Act which had been enacted, later has rendered the earlier State Act repugnant and void in terms of Article 254 of the Constitution. Though learned Additional Advocate General distinguishes the judgement in Osmania University Teachers' Association case, on the ground that the said Act was passed by the Andhra Pradesh Legislature which is similar to the UGC Act (a Parliamentary Act) and hence the Supreme Court in the aforesaid case held that State Legislature was incompetent to pass the law as the provisions of law was referable to entry 66 of list I, in the light of our earlier discussion and the provisions of the NCTE Act including the preamble etc., and as interpreted in Osmania University Teachers' Association case, we are unable to accept the argument of the learned Additional Advocate General. Further, as observed by the Supreme Court, if a subject of legislation is covered by items 63 to 66 even if it otherwise falls within the larger field of "education including Universities" power to legislate on that subject must lie with the Parliament. At the end, the Supreme Court has held: (para 26) "26. In Prem Chand Jain v. R.K. Chhabra [(1984) 2 SCR 883] this Court has held that the UGC Act falls under Entry 66 of List I. It is then unthinkable as to how the State could pass a parallel enactment under Entry 25 of List III, unless it encroaches Entry 66 of List I. Such an encroachment is patent and obvious. The Commissionerate Act is beyond the legislative competence of the State legislature and is hereby declared void and inoperative." The said decision is applicable to the facts of the cases on hand in all fours.
22. Now we shall consider the functions of the Council (NCTE Act), recognition of the institutions offering courses or training in teacher education, affiliating body to grant affiliation after recognition or permission by the council, regional committees, requirement of NOC from the State Government/Union territory administration from NCTE Act. Section 12 (a) of NCTE Act undertakes surveys and studies relating to various aspects of teacher education and publish the result thereof. Section 12 (b) makes recommendations to the Central and State Governments, Universities, University Grants Commission and recognized institutions in the matter of preparation of suitable plans and programmes in the field of teacher education. Section 12
(c) co-ordinates and monitors teacher education and its development in the country. Section 12 (e) lays down norms for any specified category of courses or training 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. Section 12 (1) formulates schemes for various levels of teacher education and identify recognized institutions and set up new institutions for teacher development programmes. Section 14 speaks about recognition of institutions offering course or training in teacher education and Section 16 relates to affiliating body to grant affiliation after recognition or permission by the Council. Another important thing which was brought to our notice in the NCTE Act is Section 20 which speaks about Regional Committees. As per Section 20 (3), the Regional Committee shall consist of the following members, namely:-
a)a Member to be nominated by the Council;
b)one representative from each of the State and the Union territories of the region, to be nominated by the respective States and the Union territories;
c)such number of persons, having special knowledge and experience in matters relating to teacher education, as may be determined by regulations.
As rightly pointed out by the learned senior counsel appearing for the institutions, though it is stated that the State Government alone is competent to consider the need and the demand of the teacher education, employment potentialities etc., in view of the fact that the Regional Committee comprises a representative from the State and Union territory. As rightly stated those factors can be very well projected before the Regional committee through a representative of a State/ Union territory. We have already referred to the NCTE Regulation, 2002 . Among the Regulations, Regulation 6 is relevant which speaks about requirement of NOC from the State Government/Union territory administration. As per Section 9, the Regional Committee, before passing an order for grant of recognition/permission under section 14 or section 15 of the Act, shall satisfy itself, on the basis of scrutiny and verification of facts as contained in the application for recognition/grant of permission and/or inspection of the institution, where considered necessary or any other manner deemed fit, that the institution fulfils the Norms and Standards laid down for the relevant teacher education course as given in the Appendices 3 to 14 of these Regulations. As per Section 9 of the Act, the Regional Committee shall satisfy itself, on the basis of scrutiny and verification of facts as contained in the application for recognition/grant of permission and/or inspection of the institution, where considered necessary or any other manner deemed fit, that the institution fulfils the norms and standards laid down for the relevant teacher education course as given in the Appendices 3 to 14 of these Regulations. As rightly pointed out by the counsel for the institutions, a combined reading of the above said provisions of the NCTE Act make it clear that the Regional Committee constituted under section 20 includes representatives of the State Government also and is competent to deliberate on the financial resources, requisite infra-structural and instructional facilities and such other particulars including the need for starting of institutions etc., while granting recognition.
23. In so far as the condition as to NOC from the State Government to get recognition from the NCTE, as stipulated in Regulation 6 of NCTE Regulations, 2002 is concerned, learned senior counsel appearing for the institutions very much relied on a judgement of the Supreme Court rendered in St. John's Teacher Training Institute v. Regional Director, reported in (2003) 3 Supreme Court cases 321. The said case arose under the very same provisions, namely, NCTE Act. When the appellant/St. Johns Teacher Training Institute made an application to the Regional Director, National Council for Teacher Education (Southern Committee), Bangalore seeking permission for starting a course in elementary education training in the year 1999-2000, the respondents therein replied that in the absence of a no-objection certificate from the State Government, the application would be treated as incomplete and would not be considered. The appellant unsuccessfully challenged before the Karnataka High Court the vires of Regulations 5 (e) and (f) of the National Council for Teacher Education Regulations, 1995 in so far as they direct obtaining of an NOC from the State Government. The connected writ petition filed under Article 32 also sought similar reliefs. It was contended before the Supreme Court that the States are also vitally interested in education and especially the professional courses. It was further stated that only the States which could correctly assess and know the extent of requirement of trained manpower and the supply of trained teachers keeping in view retirements, change of occupation etc. It was also put-forward before the Supreme Court that the State Governments would also keep a track of the number of trained teachers registered with the employment exchanges awaiting employment and the possibility of their deployment in the near future. While considering the above contentions, Their Lordships have held as follows:- (para 19) "19. Regulation 6 (ii) of these Regulations provides that the endorsement of the State Government/Union Territory Administration in regard to issue of NOC will be considered by the Regional Committee while taking a decision on the application for recognition. This provision shows that even if the NOC is not granted by the State Government or Union Territory concerned and the same is refused, the entire matter will be examined by the Regional Committee while taking a decision on the application for recognition. Therefore, the grant of refusal of an NOC by the State Government or Union Territory is not conclusive or binding and the views expressed by the State Government will be considered by the Regional Committee while taking the decision on the application for grant of recognition. In view of these new Regulations the challenge raised to the validity of Regulations 5 (e) and (f) has been further whittled down. The role of the state Government is certainly important for supplying the requisite data which is essential for formation of opinion by the Regional Committee while taking a decision under sub-section (3) of Section 14 of the Act. Therefore no exception can be taken to such a course of action."
It is clear from the above decision that even if NOC is not granted by the State Government or Union Territory concerned and the same is refused, it is for the Regional Committee to take a decision on the application for recognition irrespective of the decision of the State Government or Union Territory. The above decision also makes it clear that the Regional Committee is empowered to consider the claim for recognition even in a case where the state Government has refused to NOC. In view of the said position of law as stated supra, if this Regional Committee is satisfied with regard to the fulfilment of requirements for grant of recognition, it is the duty of the examining body, namely, Universities to grant affiliation without insisting upon the institutions to produce the prior permission of the State Government. Inasmuch as the Universities passed orders requiring the education institutions to get prior permission of the State Government based on the resolution of their Syndicate in accordance with their respective University Act and Statutes and Tamil Nadu Private Colleges ( Regulation) Act is illegal and contrary to the law laid down by the Supreme Court of India.
24. To sum up the sum and substance of the contentions raised by the Writ Appellants i.e., State of Tamil Nadu and Universities is that the insistence of prior permission from the State Government for granting affiliation is justified in terms of Section 2 (b) read with Section 7 of Tamil Nadu Private Colleges (Regulation) Act and the Statutes framed under concerned University Act inasmuch as the same has not been covered under the Central Act, namely, NCTE Act. The said claim is liable to be dismissed in view of the settled position of law as declared by the Supreme Court in Adhiyaman College case (1995 (4) SCC 104), Thirumuruga Kirubananda Variyar's case (1996 (3) SCC 15), and Jaya Gokul's case (2000 (5) SCC 231) inasmuch as the very same issue of power to stipulate condition for affiliation, disaffiliation were the subject matter of those decisions. In para 28 of Jaya Gokul's case (cited supra), it has been specifically held that procedure and conditions for affiliation could not be inconsistent with the provisions of the Central Act, in particular Section 10-(k) of the AICTE Act and the University could not seek approval of the Government. A combined reading of Sections 14 (4), 14 (6) read with Section 16 of the NCTE Act obligated the affiliating body to grant affiliation on receiving information as to recognition of an institution from the NCTE and thus leave no discretion to affiliating body to stipulate any more condition especially condition of imposing prior permission of the State Government which would render the order of recognition as ineffective. The scheme of the NCTE Act and the Regulations made thereunder as has been interpreted the various provisions of the NCTE Act and the Regulations made thereunder as held by the Supreme Court in St. John's Case (2003 (3) SCC 321) wherein it was held that the Regional Committee of NCTE is empowered to consider the claim for recognition independently notwithstanding the refusal of NOC by the State Government. Once the recognising body held that the refusal of NOC by the State Government would not stand in the way of granting recognition, it would be ex-facie illegal to insist very same rigour condition for granting of affiliation by one of the agencies, namely, Universities under the NCTE Act. We are satisfied that the NCTE Act contained enough provisions pertaining to granting of affiliation and that the action of the Writ Appellant University in imposing a precondition of prior permission from the State Government as indicated in the impugned order constitutes error of law, arbitrary and opposed to the object and scheme of the NCTE Act besides being opposed to the law declared by the Supreme Court. As explained earlier, the provisions contained in Sections 14 (4); 14 (6) and 16 of the NCTE Act is wider in scope than Section 10(k) of AICTE Act and Section 10-A of Indian Medical Council Act inasmuch as the NCTE Act takes in its fold the matter of granting affiliation. Further, the NCTE Act contains adequate provisions as regards granting of affiliation as automatic one in respect of institutions which have been granted with recognition by the NCTE. Hence, the contention of the writ appellants that the provisions of the State Enactment is only a supplemental and not supplant to the Central Act cannot be accepted. The contention that NCTE Act deals with recognition only and not establishment of institution etc., have no substance for the reasons stated supra as also on the ground that the word, 'recognition' as employed in NCTE Act and 'approval' as mentioned in Section 10(k) of the AICTE Act and 10-A of the Indian Medical Council Act would give the same meaning in legal parlance having regard to the object of those provisions contained in the respective enactment. The argument that Rule 2 (b) of the Tamil Nadu Private Colleges (Regulation) Act includes teacher training colleges and hence, the impugned condition is justified is liable to be rejected on the grounds that Rule cannot over-ride the provisions of the Act and that the State cannot enact law repugnant to the provisions contained in the Central Act as has been repeatedly held by the Supreme Court of India. As rightly pointed out, the University is one of the agencies under the NCTE Act and is obligated to grant affiliation on receipt of order of recognition in respect of any technical institution in terms of Section 14 (4) read with Section 14 (6) of the NCTE Act. Though it is stated that the function of granting affiliation is legislative in nature and the same cannot be abdicated to outside agency. In the instant case, a perusal of the impugned order discloses that the same came to be passed on the basis of the resolution of the Syndicate which in turn rely on the provisions contained in the Tamil Nadu Private Colleges (Regulation) Act ignoring the express provisions viz., Sections 14 (4)l 14 (6) of the NCTE Act.
25. Before winding up, as pointed out by the Government and the Universities, it is to be noted that in so far as the State of Tamil Nadu is concerned, there is a large body of trained teachers languishing without job opportunities having registered themselves with various employment exchanges. It is also their grievance that taking advantage of these private educational institutions are exploiting the situation by offering jobs on temporary basis endlessly without any hope of regularisation for meagre remuneration which the already starved trained teachers accept in order to keep their body and soul together. This in effect sets at naught the very purpose of maintaining standards in teacher education for which purpose alone the NCTE has been established. Some of the appellants-Universities have placed before us various orders of this Court giving directions for implementation of the UGC scales to the teaching staff which has been consistently denied by the managements of the concerned institutions on the apparent ground that college teachers do not deserve UGC scales as they do not possess prescribed qualification and that the appointments are purely temporary, which are against the judgement of this Court as well as the Supreme Court. The worst exploited lot are the school teachers. In view of the above, we hope and trust the Regional Committee (constituted under Section 20 of the NCTE Act) wherein one person is representing the State and Union Territory, their grievance/objections/suggestions have to be taken note of by the Regional Committee before recognising any institution. Inasmuch as the responsibility and burden lies on the State Government, the views of the State Government has to be given importance by the Regional Committee while granting recognition of teacher training institution.
Under these circumstances, we are in agreement with the conclusion arrived at by the learned Single Judge and we do not find any merit in the Appeals filed by the State Government and the Universities. Consequently, all the Appeals are dismissed with the above observation. No costs. The connected miscellaneous petitions are closed. In view of our conclusion, the respective universities are directed to pass orders on the applications made by the respective institutions within a period of two weeks from the date of receipt of a copy of this Judgment.
R.B. Index:- Yes.
Internet:- Yes.
To:-
1. The Secretary to Government, Higher Education Department, Fort St. George, Chennai-600 009.
2. The Regional Director, National Council for Teacher Education, C.S.D. Building, HMT Post, Bangalore-560 031
3. The Director of College Education, Chennai-600 006.