Madras High Court
The Correspondent, Smt. Savithri ... vs The State Of Tamil Nadu, Rep. By Its ... on 27 September, 2006
Author: N. Paul Vasanthakumar
Bench: N. Paul Vasanthakumar
ORDER N. Paul Vasanthakumar, J.
1. In this writ petition, petitioner seeks to quash the order of the second respondent dated 6.1.2006 and direct the second respondent University to accord affiliation forthwith to the petitioner College of Education offering B.Ed degree course on the basis of its application dated 2.8.2004 and in terms of the order of recognition given by the third respondent dated 29.12.2005.
2. The brief facts necessary for disposal of the writ petition as stated in the affidavit in support of the writ petition are as follows.
(a) Petitioner College is established and administered by the Trust known as 'Sri Sankara Educational & Charitable Trust, Trichy', which is a registered Trust. The object of the Trust is to spread higher technical eduction to the younger generations of this country by means of establishing educational institutions. The petitioner College was established to meet one of the objects of the Trust.
(b) The Trust applied before the first respondent for grant of No Objection Certificate for getting recognition on 2.8.2004 and also applied for recognition before the third respondent under the NCTE Act, 1993 on 29.12.2004. The petitioner sent reminderes for the grant of recognition to the third respondent and to the first respondent for issuing No Objection Certificate. The petitioner Institution has simultaneously applied to the second respondent for the grant of affiliation in favour of the proposed B.Ed College from the academic year 2005-2006 by making application dated 2.8.2004.
(c) As there was no response from the first respondent for the grant of No Objection Certificate and from the third respondent for the grant of recognition, petitioner filed W.P. No. 5080 of 2005 and prayed for issuing a writ of mandamus directing the third respondent to consider the petitioner's application dated 26.12.2004 seeking recognition to the B.Ed college. This Court by order dated 16.2.2005 directed the third respondent to consider the application of the petitioner Institution and pass orders thereon within three months.
(d) On 13.11.2005, the third respondent sent an inspection team and submitted a report. In December, 2005, the Regional committee, in its meeting resolved to grant recognition to the petitioner's B.Ed College from the academic Session 2005-2006 and granted an order of recognition on 29.12.2005 from the academic year 2005-2006 with an annual intake of 100 students.
(e) On 30.12.2005 petitioner sent a request to the second respondent for grant of affiliation from the academic year 2005-2006. Thereafter the petitioner received the impugned proceedings from the second respondent dated 6.1.2006 stating that the affiliation proposal will be considered only on production of following documents/fulfilment of conditions, (1)Permission from the State Government for starting the college as required under Section 3 of the Tamil Nadu Recognised Private Colleges (Regulation) Act, 1976.
(2)A copy of the notification published in the Gazette of India, Part-III, Section 4 regarding the grant of recognition by the NCTE for offering B.Ed. degree course for the petitioner's proposed college.
(3)Details of eight teachers recruited through Selection Committee as per the NCTE prescription.
(4)A copy of the proposal sent to the NCTE in the prescribed format.
The said order dated 6.1.2006 is challenged in this writ petition contending that the permission/NOC from the State Government is not required under the Tamil Nadu Private Colleges (Regulation) Act, 1976. The third respondent already sent a recognition order copy to the second respondent with a covering letter dated 30.12.2005 and the list of teachers is also available and when the petitioner approached the University to give the application format for the approval proposal of the eight teachers, it was informed by the second respondent that applications would be given only after obtaining State Government permission for establishing the college.
3. The second respondent has filed counter affidavit wherein it is stated that a request was made to grant affiliation to the petitioner's B.Ed college for the academic year 2005-2006 on 2.8.2004, but the said request did not contain any details as to the approval granted by the third respondent and thereafter another letter was received on 30.12.2005 making similar request enclosing copy of the NCTE recognition was received by the second respondent University on 23.3.2006. It is also stated that the petitioner has not applied for affiliation in the prescribed format and after filing this writ petition petitioner made a request to issue a copy of the application by letter dated 21.8.2006 and thereafter the second respondent issued application, which is yet to be submited along with necessary fees. It is further stated that the second respondent passed the impugned order with regard to condition No. 1 seeking permission/NOC from the State Government in view of the Division Bench judgment of this Court in W.A. No. 377 of 2005 dated 26.9.2005, as against which SLP was filed and the same was also dismissed. Hence the first condition was withdrawn. Insofar as the second condition is concerned, the recognition order granted by the NCTE has not been published in the official gazette and it is mandatory and therefore without the order being published in the official gazettee the University will not consider the request for the grant of affiliation. Insofar as condition No. 3 is concerned petitioner has not submited the details of 8 teaches recruited through Selection Committee and on 21.8.2006 respondent University sent the rules and regulations for selection of the teachers for complying with the norms and regulations.
4. Petitioner Institution has filed an additional affidavit and stated that 15 institutions were granted affiliation without gazette publication and the petitioner is discriminated, for which the second respondent stated in the counter that the petitioner should prove the said allegation.
5. An additional counter affidavit has been filed on 22.9.2006 wherein it is stated that the petitioner sent a demand draft for Rs. 10,000/- towards affiliation fee on 21.9.2006 and the same was returned with a direction to apply in the prescribed format and a format is also enclosed along with the counter affidavit. The second respondent further contended that the petitioner was directed to apply for affiliation in the prescribed format with necessary fees. Insofar as the list of colleges alleged by the petitioner, which have been granted affiliation without Gazettee notification, it is stated that the 11 colleges have produced NOC from the State Government and therefore they were granted affiliation and with regard to three colleges are concerned affiliation has not been granted. Insofar as one other college is concerned, SLP is still pending and the second respondent prayed for dismissal of the writ petition.
6. The learned Counsel appearing for the petitioner argued that the petitioner's application for affiliation is bound to be considerd by the second respondent as recognition has been granted by the third respondent, who is the competent authority under Section 14 of the National Council for Teacher Education Act, 1993, and the recognition having been granted by the third respondent, second respondent is not justified in not granting affiliation stating one reason or the other. The learned Counsel also argued that the affiliation fee is paid and the stand taken by the second respondent that only after gazettee notification, the application for affililation will be considered is totally untenable and it is in effect, ignoring the order of the third respondent, who is the statutory authority under the Central Act. Learned Counsel also submitted that the petitioner is willing to fill up the format now enclosed along with the counter affidavit even though all documents have already been submitted.
7. The learned Counsel appearing for the second respondent submitted that unless and until Gazette notification is enclosed along with the application, the second respondent is not bound to consider the application for the grant of affiliation to the petitioner College even though recognition is granted by the third respondent. The learned Counsel ultimately submitted that if the petitioner produces the gazettee notification the University is willing to consider the application for affiliation after making inspection and without the same second respondent will not consider the affiliation application. Insofar as the list of teachers are concerned, learned Counsel for the second respondent accepted the receipt of list of teachers and other documents submitted before the third respondent and the same is not now disputed.
8. I have considered the submissions of the learned Counsel for the petitioner as well as the learned Counsel for the respondents.
9. The only question remains to be decided in this writ petition is, when the second respondent is not pressing for NOC/permission from the State Government, whether the second respondent is justified in not considering the application for affiliation on the ground that recognition order granted by the third respondent is not gazetted.
10. It is an admitted case that the third respondent, who is the competent authority to grant recognition passed an order on 29.12.2005 and a copy of the same is marked to all the authorities including the second respondent. It is stated in the said order that recognition is granted under Section 14(1) of the NCTE Act and the order is to be published in the Gazettee of India, Part-III, Section 4.
11. I have perused the conditions prescribed by the second respondent for the grant of affiliation in the Satutes of Bharathidasan University. Nowhere in the conditions it is stated that for grant of affiliation, Gazette notification is required even though recognition is granted by the competent authority. The meaning of the word "gazette" as per P.Ramanatha Aiyar's Advanced Law Lexicon is as follows, 'Gazette' generally means the official Gazette, published under the authority of the Government (R. v. Hold 5 T.R. 439). It is a Publication of an official character which contains government notifications, lists of public appointments and honours, legal notices, etc. It is to be noted that the recognition order given by the third respondent does not impose any pre-condition that only after the order is gazetted it will come into operation. It only states that the same should be gazetted. The third respondent being a statutory authority created under the Central Act, already informed the second respondent, which was created under the State Act officially about the grant of recognition and there is no dispute with regard to the receipt of the same. Hence the date of gazetting is immaterial for processing the application for affiliation of the petitioner's B.Ed College.
12. From the additional counter affidavit filed by the petitioner, it is seen that several colleges were granted affiliation without reference to the publication of recognition in the Official Gazette. The reply affidavit dated 11.9.2006 merely states that 11 B.Ed colleges were granted affiliation on the basis of production of NOC from the State Government. It is not stated that the recognition orders of those 11 colleges have been gazetted in the Government of India Gazette. Therefore it is clear that even without gazette notification issued by the Government of India publishing the grant of recognition by the third respondent, the second respondent has granted affiliation to 11 B.Ed Colleges. If at all the publication of the gazette is a pre-requisite condition for considering affiliation application, the second respondent ought not to have granted affiliation to the 11 colleges as stated in the additional affidavit and the only distinction made in the additional counter is that those 11 stitutions produced NOC from the State Government and the same is not required for the grant of recognition.
13. This Court in the decision reported in 2005 WLR 257 Madras education and Research, Integrated Trust v. The Periyar University rep. by its Registrar, etc. and Anr. in paragraphs 13 and 14 held that NOC from the State Government is not required to be produced for the grant of affiliation and the University Statute, which requires NOC/prior permission from the State Government is to be declared as inoperative i.e, Section 5(5) of the Tamil Nadu Dr.MGR Medical University for the grant of affiliation to Medical Colleges as declared in the case of Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu and Ors. and St.Johns Teachers Training Institute v. Regional Director, NCTE in sofar as the grant of affiliation to the Teacher Training Institutions are concerned and held that the requirement of production of NOC or permission from the State Government cannot be insisted upon and the concerned Universities including the second respondent University were directed to consider the application for affiliation without reference to the grant of NOC/permission from the State Government. The second respondent filed writ appeal along with other Universities and the same were also dismissed by judgment (Bharathidasan University and Ors. v. Dhanalakshmi Srinivasan, Educational and Charitable Trust and Ors.). In the said judgment, the Division Bench of this Court considered the judgments of the Honourable Supreme Court (Adhiyaman College of Engineering Case) : (Thirumuruga Kirupananda Variyar Thavathiru Sundaraswamigal Medical Educational and Charitable Trust case); (Jaya Gokul educational Trust case), etc., and dismissed the writ appeals with a direction to consider the request for affiliation by the respective universities within a specified time. SLP filed against the said decision was also dismissed by the Honourable Supreme Court in SLP (Civil) No. 6241 of 2005, order dated 17.4.2006 following the judgment (State of Maharashtra v. S.D.S.S. Mahavidyalaya).
14. In the decision (State of Maharashtra v. S.D.S.S. Mahavidyalaya), the Honourable Supreme Court in para 67 held as follows,
67. In view of the fact, however, that according to us, the final authority lies with NCTE cannot be deprived of its authority or power in taking an appropriate decision under the Act irrespective of absence of No Objection Certificate by the State Government/Union Territory. Absence or non-production of NOC by the institution, therefore, was immaterial and irrelevant so far as the power of NCTE is concerned.
The honourable Supreme Court in the above referred judgment considered the scope of NCTE Act with reference to the power of the State Government and held that NCTE Act alone covers the grant of recognition to the Teacher Education Courses and it is neither open to the State Government nor to the University to consider the local conditions or apply State policy to refuse permission and the State Government has no power to reject the prayer of the Institution or to overrule the decision of NCTE as the same will be contrary to Law.
15. From the perusal of the said Judgment it is clear that the second respondent University which is created by the State Government has no power to reject the prayer of the Institution requesting affiliation to overrule the decision of the NCTE. By not considering the affiliation request of the petitioner, in effect the second respondent is overruling the decision of the NCTE with regard to the grant of recognition of the petitioner B.Ed College.
16. Recently a Division Bench of this Court in the decision reported in (2006) 3 MLJ 1037 (State of Tamil Nadu v. V.S.B. Educational Trust) considered the validity of Section 5(ac) of the Anna University Act, requiring prior permission from the State Government for considering the application for affiliation of the Engineering Colleges after the grant of approval by the AICTE and the Division Bench, after analysing the entire case law on the subject held that the said section is inoperative as it is inconsistent to the AICTE Act.
17. As rightly contended by the learned Counsel for the petitioner, the publication in the gazette is only a formality. Third respondent being a statutory authority has already communicated its decision to the second respondent. Further publication in the gazette is to be made by the Government of India and the petitioner has no say in the matter. Hence insisting the petitioner to produce gazette copy of the recognition order, for the grant of affiliation at this stage, is an impossibility of performance on the part of the petitioner. It is to be noted that once recognition is granted publication in the gazette is automatic and the third respondent will furnish the details in the prescribed manner and remit the required fees for publication in the gazette and as per the procedure being adopted for publication to be made, the Government of India will gazette the same.
18. The second respondent is therefore not justified in not considering the application for affiliation on the ground that the gazette publication of the recognition order is not submitted by the petitioner. It is established before this Court that 11 institutions were granted affiliation by the second respondent without their recognition being published in the Gazette. Hence the action of the second respondent is discriminatory and indirectly insisting the production of NOC. The same is accepted in the additional counter affidavit. The said stand is contrary to the decision of the Honourable Supreme Court reported in AIR 2001 SC 2884 (Anjuman-E-Islam v. State of Karnataka) In paragraph 3 of the said judgment, the Honourable Supreme Court taking note of the discrimination in the grant of affiliation directed to grant affiliation from 2002-2003.
19. Section 14(3) of the NCTE Act, 1993, states that on receipt of the application by the Regional Committee and after satisfaction that the Institution has the adequate financial resources, accommodation, library, qualified staff, laboratory, etc., recognision is to be granted under Section 14(4) which reads as follows, Section 14(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.
Under Sub-section (6) of Section 14 it is stated that every examining body shall on receipt of the order under Sub-section (4) grant affiliation to the institution where recognition has been granted. Similarly Section 16 gives direction to the Universities to grant affiliation, which reads as follows, Section 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.
A perusal of Section 14(4) and 14(6) read with Section 16 makes it clear that the second respondent Unviersity is bound to grant affiliation either provisionally or otherwise to the institution if the Institution comply with the norms fixed for affiliation. The non-consideration of the application for affiliation on the ground of non-production of Gazette publication is to be treated as violation of the provisions of Section 14(4), (6) and 16 of the Act.
20. In the decision reported in 2006 WLR 549 (Vinayaka Missions's College of Nursing and Para-Medical Sciences v. The Tamil Nadu Nurses and Midwives Council and Ors.) a Division Bench of his Court (myself sitting along with another learned Judge) in para 16, dealt with the decisions rendered by three learned single Judges, which reads as follows,
16. Mr.S.S.Subramani, J., in W.P. No. 1270 of 1999 dated 22.2.1999 (Kousalya Ramamurthy and Ors. v. Pondicherry University), relying on the observation that all the authorities concerned should take simultaneous decision and one authority cannot delay the process and that when once AICTE has granted permission, the Management would be legally entitled to admit the students. In W.P. No. 23925 of 2001 by order dated 22.3.2002 (Aarupadai Veedu Medical College v. Pondicherry University), A. Kulasekaran, J. had observed that when once the Central Government has granted permission to admit the students, it was not right on the part of the University to prescribe a different period by rejecting the application for affiliation. In St. Xavier's Educational Trust v. Manonmaniam Sundaranar University and Ors. W.P. No. 20496 of 2000, by order dated 19.12.2000, K.Govindarajan, J. directed the University to grant affiliation for the academic year 2000-2001, though the judgment was rendered on 19.12.2000.
In para 20 of the Judgment, the Division Bench also extracted the relevant portion of the order in W.P. No. 10850/2004 passed by Mr.Justice K.P.Sivasubramaniam, in para 20 and 21, which read as under,
20. While parting with this case, it would be appropriate to place on record the total unsustainability of the methodology adopted by the various authorities who are involved in the grant of permission/sanction/affiliation, etc., for starting a professional college/courses, namely, Medical dental, Nursing, Teachers' Training, Engineering, Technical, etc. when the Government is not able to run such educational Institutions and the right of education being recognised as a fundamental right, the need of imparting education through private sector had become inevitable and a recognised feature. But, in order to see to it that the private sector does not exploit the situation commercially and in an unconscionable manner and to ensure proper standards, many regulations have been formulated to control the fee structure, to ensure all infrastructural facilities, staff pattern, etc., before and after the institution is allowed to admit the students and commence its functioning. In the said process, necessarily different authorities are involved such as Central and State Governments, Governing Councils like the Medical Council, Dental Council, AICTE, etc., and the University. No doubt, these authorities have to act independently in their own spheres and according to their own standards. But it should not be forgotten that they are statutory authorities discharging the functions of one single entity, namely, the Sovereign Government. The various authorities above-mentioned are part and parcel of that single entity and they function differently only for administrative reasons and due to division of labour. But the unfortunate outcome of such division of labour is the impossible and impracticable situations and requirements which the applying institution has to face for establishing itself. Which authority is to be approached first, second third or last is a question which no one can answer. But one thing is sure. "A: authority would require the approval by "B", "C" and "D" authorities, while "B" authority would require approval/permission by the other three authorities and likewise in the case of "C" and "D" authorities. I ask myself the question as to how this could be possible at all and where is the need for such a requirement. The applying institution is expected to successfully complete this jugglery, after having invested several lakhs of rupees only to find at last being told that students cannot be admitted for the particular academic year. This situation inevitably leads to red-tapism, corruption, favouritism and inconsistent orders being passed in favour of and against different institutions by adopting different yardsticks. This rigmarole is going on for the past many years, flooding the Courts with petitions where it is also found that innocent students are caught in this confusion. They already have a frightening and competitive future ahead of them and even at the threshold of their professional education, they are subjected to painful suspense and many times, are forced to loose money and valuable years when they are told that the institution in which they are admitted is not yet recognised or affiliated. Take for instance this case itself where the Government of Pondicherry itself directs the College to admit the students, while the University states that they cannot affiliate, as the application was belated. If only simultaneous applications are made possible, this problem would not have arisen at all. When the petitioning College is required to approach the University only after the Essentiality Certificate is given by the Government, it results in unnecessary delay and the requirement that the application for affiliation should have been made on or before 15th of August of the previous year itself is rendered impossible. Further, it is also seen that while the Indian Nursing Council grants permission on 20.9.2003, the Tamil Nadu Nursing Council points out certain defects and ultimately grants its approval only on 11.5.2004. It is baffling to find that both the Nursing Councils should be involved though they operate only on the same field, but both of them have different approach regarding the infrastructural requirements.
21. Who is responsible for this situation and is it such a complicated issue to evade solution by the educational authorities ? It should be certainly possible to evolve a methodology by which the applying institution would be required to present its application before all the authorities simultaneously, something in the nature of a single window system and a time limit for all the authorities to pass orders for directions to rectify the defects, if any, and to comply with the requirements.
Following the above said decisions and other decisions of the Honourable Supreme Court and Division Bench of this Court, the stand taken by the University in that case that the application for affiliation having been submitted beyond the cut off date, was not accepted and a direction was issued to consider the grant of affiliation by making inspection within four weeks.
21. In the decision reported in 2006 (3) SCALE (cited supra), in para 75 the Honourable Supreme Court taking note of the passage of time that is, the academic year 2005-2006 being almost over, directed the University to consider grant of affiliation for the academic year 2006-2007, pursuant to the recognition granted by the third respondent for the academic year 2005-2006.
22. In this case also, the academic year 2005-2006 is almost over and the second respondent University is directed to consider the grant of affiliation for the academic year 2006-2007 by making inspection and pass orders within four weeks from the date of receipt of copy of this order.
23. The writ petition is disposed of with the above direction. No costs. Connected miscellaneous petition is closed.