Allahabad High Court
C/M Dr. R.P. Memorial Degree College ... vs State Of U.P. Thru. Education Dept. And ... on 20 September, 2022
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Court No. - 18 Case :- WRIT - C No. - 29553 of 2018 Petitioner :- C/M Dr. R.P. Memorial Degree College Thru. Manager And Anr. Respondent :- State Of U.P. Thru. Education Dept. And Ors. Counsel for Petitioner :- Tej Narayan,Girijesh Kumar Dwivedi Counsel for Respondent :- C.S.C.,O.P.M.Tripathi Hon'ble Pankaj Bhatia,J.
Heard the counsel for the petitioner and Sri O.P.M. Tripathi, the counsel for the respondents.
The present petition has been filed challenging the order dated 15.02.2018 whereby the request of the petitioner for granting recognition of conducting D.El.Ed. Course was rejected solely on the ground that the petitioner does not have the land as prescribed in the Regulations of 2014 as well as the appellate order whereby the appeal preferred has been dismissed on 13.8.2018.
The facts in brief are that the petitioner is a society which has established an educational institution to the girls student in the name and style of Dr. Rajendra Prasad Memorial College, Rajajipuram, Lucknow and is approved for imparting B.A., B.Sc., B.Com., and B.Ed. Degree Courses. It is stated that on 31.10.2009, the petitioner's college has applied for grant of recognition before the National Council for Teachers Education (N.C.T.E.), the respondent no.3, for imparting D.El. Ed. Course in the prescribed format in terms of the mandate of Section 14 and 15 of the NCTE Act, 1993. On the said application, the respondent no.3 found the same to be short of requirements and the same did not find favour with the respondent authorities, thereafter an appeal preferred by the petitioner was also rejected on 27.09.2010. The petitioner challenged the said two orders by filing a writ petition no.6995 (MS) of 2012, which was allowed and the matter was remanded vide judgment dated 18.07.2013 (Annexure no.5).
It is stated that subsequent to the remand, the respondents considered the application of the petitioner and granted recognition for running the D.El. Ed. Course for the academic session 2016-17, the petitioner claims that the petitioner also got the sanction for affiliation from the State Government. It is stated that all of a sudden vide order dated 15.02.2018, the petitioner was informed that the application for recognition has been rejected in exercise of the powers under section 14/15(3)(b) of the NCTE Act 1993 read with the regulations framed thereunder. The petitioner preferred an appeal against the said order, which too has been dismissed. Both the said orders are under challenge.
The contention of the counsel for the petitioner is that the sole reason disclosed in the order rejecting recognition is that the petitioner do not have the lease land as required in terms of the regulations.
The counsel for the respondent justify the order of cancellation on the requirement as is prescribed under section 8(4) of the Regulations 2014 and argues that the petitioner does not have the lease land given by the Government and thus, his case was rightly rejected.
The counsel for the petitioner has annexed a copy of the registered lease deed executed in his favour for a period of ninety years w.e.f. 06.01.1998. The said lease deed, on its perusal reveals that there is no forfeiture clause contained in the covenant.
To appreciate the controversy at hand, it is essential to look into the mandatory provision of the NCTE Act, which itself was framed for establishing and promoting Teacher Education System in the whole of the country, recognizing the need for teachers and the manner in which the said object can be achieved. Section 3 of the Act provides for Establishment of the Council comprising of the members specified therein and Chapter III of the said Act provides for the functions of the Council. Section 14 and 15 of the NCTE Act, which are relevant for the present case are quoted herein below :
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 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 fulfill 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 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: Permission for a new course or training by recognised institution.?(1) Where any recognized institution intends to start any new course or training in teacher education, it may make an application to seek permission therefor to the Regional Committee concerned in such form and in such manner as may be determined by regulations.
(2) The fees to be paid along with the application under sub-section (1) shall be such as may be prescribed.
(3) On receipt of an application from an institution under sub-section (1), and after obtaining from the recognized institution such other particulars as may be considered necessary, the Regional Committee shall?
(a) if it is satisfied that such recognized institution has adequate financial resources, accommodation, library, qualified staff, laboratory, and that it fulfills such other conditions required for proper conduct of the new course or training in teacher education, as may be determined by regulations, pass an order granting permission, subject to such conditions as may be determined by regulations; or
(b) if it is of the opinion that such institution does not fulfill the requirements laid down in sub-clause (a), pass an order refusing permission to such institution for reasons to be recorded in writing:
Provided that before passing an order refusing permission under sub-class (b), the Regional Committee shall provide a reasonable opportunity to the institution concerned for making a written representation.
(4) Every order granting or refusing permission to a recognized institution for a new 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 recognized institution and to the concerned examining body, the local authority, the State Government and the Central Government."
On a plain reading, the intent of scope of section 14 and 15 is to ensure that the institutions seeking recognition has adequate financial resources, accommodation, library, qualified staff, laboratory and other conditions which are required to promote the object for which the Act was framed.
Section 32 of the said Act confers the power upon the council to make regulations not in consistent with the provisions of this Act and the Rules made thereunder and to generally carryout the provisions of this Act. In terms of the power conferred upon the Council, the Council has framed the regulations known as The National Council for Teacher Education (Recognition Norms and Procedure) Regulations 2014 as notified on 28.11.2014. Rule 8(4) of the said Regulations with which we are concerned is quoted herein below:
"8. Conditions for grant of recognition. (1) .........
2. ...........
3. ..........
(4) (i) No institution shall be granted recognition under these regulations unless the institution or society sponsoring the institution is in possession of required land on the date of application. The land free from all encumbrances could be either on ownership basis or on lease from Government or Government institutions for a period of not less than thirty years. In cases where under relevant State or Union territory laws the maximum permissible lease period is less than thirty years, the State Government or Union territory administration law shall prevail and in any case no building shall be taken on lease for running any teacher training programme.
(ii) The society sponsoring the institution shall have to ensure that proposed teacher education institution has a well demarcated land area as specified by the norms.
(iii) The society sponsoring the institution shall be required to transfer and vest the title of the land and building in the name of the institution within a period of six months from the date of issue of formal recognition order under sub-regulation (16) of regulation 7. However, in case, the society fails to do so due to local laws or rules or bye-laws, it shall intimate in writing with documentary evidence of its inability to do so. The Regional Office shall keep this information on record and place it before the Regional Committee for its approval."
The order apparently has been passed in exercise of the said powers. The counsel for the petitioner argues that Regulation 8 (4), lays down conditions which have no relevant nexus sought to be achieved under section 14 and 15 of the NCTE Act. He argues that the intent of the law is to ensure that the institutions granting recognition has adequate resources in terms of financial and requirement of accommodation. He argues that the condition that the lease should be from a 'Government' or 'Government institutions' has no relevant nexus sought to be achieved in terms of the mandate of Section 14 and 15 of the Act. He also argues that even under section 32 of the Act, the Council is empowered to make regulations which are not inconsistent with the statutory provisions and should act in furtherance of the objects sought to be achieved, whereas the condition of a lease from Government or Government institution, restricts the scope of objects sought to be achieved under section 14 and 15 of the Act.
Sri O.P.M. Tripathi the counsel for the respondent reiterates that prior to the passing of the order, an opportunity was given on 25.05.2017, however as the present case is being decided based upon the scope of the Regulations and has no relevance to the opportunity granted or not, this Court is not going to the question of grant of opportunity to the petitioner as argued by him.
The intent of the scope of Section 14 and 15 of the Act is clearly discernible in the language used in section 14 and 15 of the Act. The Act aims to promote systematic education for teachers training and thus seeks to achieve a socio beneficial effect on the society. The Council is bound under the statute to promote the systematic education amongst the teachers and thus is duty bound to act in furtherance of the object sought to be achieved. The regulatory mechanism and the powers conferred on the Council, in terms of the Section 32(1) and in terms of the Regulations as framed, clearly cannot be inconsistent with the objects sought to be achieved. The prescription of lease from 'Government' or 'Government institutions' alone clearly does not seem to achieve the objects sought to be promoted under the Act. There is no rational nexus as to how a 'Government' lease for thirty years suits the cause better than a registered lease for a period of ninety years (as is the case in the present writ). Although there is no challenge to the vires of Regulation 8(4), this court is of the view that the prescriptions of having the land as prescribed in Regulation 8(4) served a valid purpose, however the prescription of having a land on 'Government' lease or on a lease from 'Government institutions', appears to be arbitrary and to save it from it being declared ultra vires, the same has to be read down to hold that the registered lease for more than thirty years which is validly recognized lease under the Transfer of Property Act has to be held to be an adequate compliance of the requirements as prescribed under the Regulation 8(4)(i) of the Regulations 2014.
The Supreme Court in the case of J. K. Industries Limited vs. Union of India; (2007) 13 SCC 673, while interpreting the scope of Rules made in exercise of the delegated legislation recorded as under :
"Apart from the grounds referred to by this Court in the above judgment in the case of Indian Express Newspaper, it is important to bear in mind that where the validity of subordinate legislation is challenged, the question to be asked is whether the power given to the rule making authority (in the present case the Central Government under section 642 (1) of the Companies Act) is exercised for the purpose for which it is given. Before reaching the conclusion that the Rule is intra vires (we have to begin with the presumption that the Rule is intra vires), the court has to examine the nature, object and the scheme of the legislation as a whole and in that context, the court has to consider what is the Area over which powers are given by the section under which the Rule Making Authority is to act. However, the court has to start with the presumption that the impugned Rule is intra vires. This approach means that, the Rule has to be read down only to save it from being declared ultra vires if the court finds in a given case that the above presumption stands rebutted."
In the present case, as the petitioner has a registered lease in his favour and is running a B.Ed. course in the same institution and same premises for which recognition has been granted by NCTE under same regulation, the order impugned denying the benefit of recognition solely based upon the petitioner not having a registered Government lease in his favour cannot be justified, as such, the impugned orders dated 15.02.2018 and 13.08.2018 are set aside. The respondents are directed to process the application of the petitioner treating the registered lease deed in his favour to be a valid document as required under Regulation 8(4)(1) of the NCTE Regulations, 2014. The said decision shall be taken in accordance with law within a period of three months. The said direction shall be subject to the petitioner fulfilling all the requirements of deposit of requisite fee etc. that may be required to be paid.
The writ petition stands disposed off with the said observations.
Order Date :- 20.9.2022 VNP/-