Delhi High Court
Laxmi College Of Education vs National Council For Teacher Education ... on 1 October, 2019
Equivalent citations: AIRONLINE 2019 DEL 1635, (2019) 3 ESC 1394 (2020) 1 SCT 323, (2020) 1 SCT 323
Author: C. Hari Shankar
Bench: Chief Justice, C.Hari Shankar
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19th September, 2019
Pronounced on: 1st October, 2019
+ W.P. (C) 7666/2019 and CM No.31863/2019
LAXMI COLLEGE OF EDUCATION ....Petitioner
Versus
NATIONAL COUNCIL FOR TEACHER
EDUCATION AND ANR. ....Respondents
+ W.P. (C) 6417/2019 and CM No.27264/2019
+ W.P. (C) 6438/2019 and CM No.27341/2019
+ W.P. (C) 7050/2019 and CM No.29407/2019
+ W.P. (C) 7354/2019 and CM No.30646/2019
+ W.P. (C) 7572/2019
+ W.P. (C) 7664/2019 and CM No.31861/2019
+ W.P. (C) 7665/2019 and CM No.31862/2019
+ W.P. (C) 7856/2019 and CM No.32668/2019
+ W.P. (C) 7858/2019 and CM No.32671/2019
+ W.P. (C) 7867/2019 and CM No.32684/2019
+ W.P. (C) 7869/2019 and CM No.32689/2019
+ W.P. (C) 7870/2019 and CM No.32694/2019
+ W.P. (C) 7871/2019 and CM No.32695/2019
+ W.P. (C) 7872/2019 and CM No.32696/2019
+ W.P. (C) 7873/2019 and CM No.32697/2019
+ W.P. (C) 7875/2019 and CM No.32704/2019
+ W.P. (C) 7908/2019 and CM No.32769/2019
+ W.P. (C) 8244/2019
+ W.P. (C) 8863/2019
+ W.P. (C) 9676/2019
Present: Mr. Sanjay Sharawat, Mr. Divyank Rana
and Mr. Ashok Kumar, Advs. for
petitioners in Item Nos. 66 to83
Mr. Ravi Kant and Mr. Mayank Manish,
W.P. (C) 7666/2019 & other connected matters Page 1 of 84
Advs. for petitioners in W.P. (C)
8244/2019, 8863/2019
Mr. Neeraj Shekhar, Mr. Animesh Kumar,
Mr. Sumit Kumar and Mr. Ashutosh
Thakur, Advs. for petitioner in W.P.(C)
9676/2019
Mr. Sanjay Jain, ASG with Mr. Shivam
Singh, Ms. Arunima Dwivedi, Ms. Preeti
Kumra, Mr. Udian Sharma, Mr. Jaideep
Khanna and Mr. Arkaj Kumar, Advs. for
R-NCTE
Mr. Ashish Kumar, Addl. Advocate
General with
Mr. Rameezuddin Raja, Adv. for R-3/State
of Rajasthan in Item No.66
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
% J U D G M E NT
C. HARI SHANKAR, J
1. These writ petitions assail
(i) Clause 1.2 of Appendices 16 and 17 to the National
Council for Teachers Education (Recognition Norms and
Procedure) Regulations, 2014 (hereinafter referred to as "the
2014 Regulations"), as amended by the National Council for
Teachers Education (Recognition Norms and Procedure)
Amendment Regulations, 2019 (hereinafter referred to as "the
2019 Amendment Regulations"), and
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(ii) Public Notice, dated 20th May, 2019, issued by the
National Council for Teachers Education (Respondent No. 1
herein and referred to, hereinafter, as "NCTE").
The statutory scenario
2. The NCTE, as the apex body for teacher education in India, was
established by the National Council for Teacher Education Act, 1993
(hereinafter referred to as "the NCTE Act"), which came into effect on
29th December, 1993. The Act was, preambularly, aimed at
"establishment of a National Council for Teacher Education with a
view to achieving planned and co-ordinated 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 matters connected therewith".
3. The NCTE was established, w.e.f. 1st July, 1995 , under Section
3(1) of the NCTE Act, read with the Notification, issued by the
Central Government thereunder. The functions of the NCTE, as
delineated in Section 12 of the NCTE Act, include coordination and
monitoring of teacher education and its development in the country
and laying down of norms, for a specified category of courses or
trainings in teacher education. Clauses (c), (f) and (j) of section 12,
under which the NCTE purports to have acted in the present case, may
be reproduced thus:
"12. Functions of the Council -
It shall be the duty of the Council to take all such steps
as it may think fit for ensuring planned and co-
W.P. (C) 7666/2019 & other connected matters Page 3 of 84
ordinated development of teacher education and for the
determination and maintenance of standards for
teacher education and for the purposes of performing
its functions under this Act, the Council may -
*****
(c) co-ordinate and monitor teacher education and
its development in the country;
*****
(f) lay down guidelines for compliance by
recognised institutions, for starting new courses or
training, and for providing physical and instructional
Facilities, staffing pattern and staff qualification;
*****
(j) examine and review periodically the
implementation of the norms, guidelines and standards
laid down by the Council, and to suitably advised the
recognised institution;"
4. Sub-sections (1), (3) and (6) of Section 14 of the NCTE Act,
which deals with "recognition of institutions offering course or
training in teacher education", reads as under:
"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
W.P. (C) 7666/2019 & other connected matters Page 4 of 84
or training for a period of 6 months, if it has made an
application for recognition within the said period and
until the disposal of the application by the Regional
Committee.
*****
(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, passed 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), passed 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.
*****
(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
W.P. (C) 7666/2019 & other connected matters Page 5 of 84
(b) cancel the affiliation of the institution,
where recognition has been refused."
5. Section 16 of the NCTE Act proscribes any examining body
from granting affiliation, provisional or otherwise, to any teacher
education institution, or from holding any examination for a course or
training conducted by a recognised teacher education institution,
unless the institution has obtained recognition, or permission from the
concerned Regional Committee, for the said course or training.
Section 18 allows any person, aggrieved by an order passed under
Section 14, 15 or 17, to prefer an appeal, thereagainst, to the NCTE,
within the prescribed period, and empowers the NCTE to confirm or
reverse the order appealed against. Section 20 constitutes four
Regional Committees, namely the Eastern Regional Committee
(ERC), Western Regional Committee (WRC), Northern Regional
Committee (NRC) and Southern Regional Committee (SRC), and sets
out the constitution thereof. Section 29(1) binds the NCTE, in the
discharge of its functions and duties, by directions, on questions of
policy, given, in writing, by the Central Government, to it, from time
to time.
6. Section 31 of the NCTE Act empowers the Central Government
to frame Rules, and Section 32 empowers the NCTE to make
regulations to carry out the provisions of the NCTE Act. Such Rules,
or Regulations, are required to be issued by way of notification in the
Official Gazette, and are also required, by Section 33, to be laid before
each House of Parliament for a total period of 30 days.
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7. Of the various Rules and Regulations that have been issued,
from time to time, in exercise of the powers conferred by Section 31
and 32 of the NCTE Act, we are concerned, in the present case, only
with the 2014 Regulations, before, and after, their amendment by the
2019 Amendment Regulations.
8. The 2014 Regulations, which came into effect on 28 th
November, 2014, superseded the pre-existing National Council for
Teacher Education (Recognition Norms and Procedure) Regulations,
2009. Regulation 3, of the 2014 Regulations, which set out the
applicability thereof, to the extent it is relevant for the present case,
read as under:
"3. Applicability. -
These regulations shall be applicable to all matters
relating to teacher education programmes for preparing
norms and standards and procedures for recognition of
institutions, commencement of new programmes and
addition to sanctioned intake in the existing
programmes including the following, namely: -
(a) recognition for commencement of new
teacher education programmes which shall be
offered in composite institutions;"
(Emphasis supplied)
9. "Composite institution" was defined, in clause (b) of
Regulation 2 of the 2014 Regulations, as meaning "a duly recognised
higher education institution offering undergraduate or postgraduate
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programmes of study in the field of liberal arts or humanities or social
sciences or sciences or commerce or mathematics, as the case may be,
at the time of applying for recognition of teacher education
programmes, or an institution offering multiple teacher education
programmes".
10. Regulation 4 enumerated the categories of institutions which
were eligible for consideration of their applications under the 2014
Regulations, and Regulation 5 sets out the manner in which the
concerned institution, desirous of running a teacher education
programme, was required to apply therefor. Regulation 6 required the
applicant to pay the processing fees, the time of submission of the
application and Regulation 7 set out the manner in which the
applications would be processed. Sub-Regulations (1) and (4) to (6) of
Regulation 7, which are of importance to the present case, read thus:
"7. Processing of applications. -
(1) In case an application is not complete, all
requisite documents are not attached with the
application, the application shall be treated incomplete
and rejected, an application fees paid shall be forfeited.
*****
(4) A written communication alongwith a copy of
the application form submitted by the institution shall
be sent by the office of Regional Committee to the
State Government or the Union territory administration
and the affiliating body concerned within thirty days
from the receipt of application, in chronological order
of the receipt of the original application in the
Regional Committee.
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(5) On receipt of the communication, the State
Government or the Union Territory administration
concerned shall furnish its recommendations or
comments to the Regional Committee concerned
within forty five days from the date of issue of the
letter to the State Government or Union Territory, as
the case may be. In case, the State Government or
Union Territory Administration is not in favour of
recognition, it shall provide detailed reasons or
grounds thereof with necessary statistics, which shall
be taken into consideration by the Regional Committee
concerned while disposing of the application.
(6) If the recommendation of the State Government
is not received within the aforesaid period, the
Regional Committee concerned shall send a reminder
to the State Government providing further time of
another 30 days to furnish their comments on the
proposal. In case no reply is received, a second
reminder shall be given for furnishing recommendation
within fifteen days from the issue of such second
reminder. In case no reply is received from the State
Government within aforesaid period the Regional
Committee shall process and decide the case on merits
and placing the application before the Regional
Committee shall not be deferred on account of non-
receipt of comments or recommendation of the State
Government."
Sub-regulations (7) to (9) of Regulation 7 stipulate the manner in
which, consequent to receipt - or non-receipt - of the
recommendation of the State Government as contemplated by sub-
Regulations (4) to (6) supra, the institution is to be inspected by the
concerned Regional Committee. Sub-regulation (10) posits that the
Regional Committee would decide grant of recognition or permission,
to the institution, only after satisfying itself that the institution fulfils
all the conditions prescribed by the NCTE under the NCTE Act, Rules
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or Regulations, including norms and standards laid down for the
relevant teacher education programmes. In the matter of recognition,
sub-regulation (11) requires the Regional Committees to strictly act
within the ambit of the NCTE Act, and the Regulations including the
norms and standards for various teacher education programmes,
without allowing any relaxation therein. Sub-regulation (13) requires
the concerned institution to be informed, through a letter of intent,
regarding the decision for grant of recognition or permission, subject
to appointment of qualified faculty members before the
commencement of the academic session. It is further stipulated, in the
said sub-Regulation (13), that the letter of intent "would be sent to the
institution and the affiliating body with the request that the process of
appointment of qualified staff as per policy of State Government or
University Grants Commission or University may be initiated and the
institution be provided all assistance to ensure that the staff or faculty
is appointed as per the norms of the Council within two months". The
institution is required to submit the list of faculty, as approved by the
affiliating body, to the Regional Committee. Sub-regulation (17)
empowers the Regional Committee, in a case in which, after
consideration of the report of the visiting team and other facts on
record, it is of the opinion that the institution does not fulfil the
requirements for starting or conducting the course, to, after giving an
opportunity of being heard to the institution, pass an order refusing to
allow any further opportunity for removal of deficiencies or inspection
for reasons to be recorded in writing. Such an order is appealable, to
the NCTE, under Section 18 of the NCTE Act.
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11. Regulation 8 sets out the conditions for grant of recognition,
and sub-regulation (1) thereof, on which the petitioners in these writ
petitions place reliance, reads thus:
"New Teacher Education Institutions shall be located in
composite institutions and the existing teacher education
institutions shall continue to function as stand-alone
institutions: and gradually move towards becoming composite
institutions."
Sub-regulation (2) of Regulation 8 requires every institution to fulfil
all conditions, pertaining to norms and standards for conducting the
programme or training in teacher education, which include conditions
relating to financial resources, accommodation, library, laboratories,
other physical infrastructure, and qualified staff including teaching
and non-teaching personnel. Sub-regulation (3) requires the
institution, which has been recognised by the NCTE, to obtain
accreditation, from an accrediting agency approved by the NCTE,
within five years of recognition. Sub-regulation (4) stipulates that no
institution shall be granted recognition, under the 2014 Regulations,
unless the institution, or the society sponsoring the institution, is in
possession of the required land, on the date of application, free from
encumbrances. The said sub-regulation further goes on to stipulate the
specifications of such land, with which we, in the present case, are not
particularly concerned. Sub-regulation (10) of Regulation 8 stipulates
that the University, or examining body, shall grant affiliation to the
institution only after issuance of a formal recognition order under
Regulation 7(16) supra, and admissions would be made by the
institution only after it has obtained affiliation.
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12. Regulation 9 of the 2014 Regulations, which deals with "norms
and standards", requires every institution, offering the programmes
enlisted and enumerated in the table in the said Regulation, to comply
with the norms and standards for various teacher education
programmes, as specified in the corresponding Appendix to the
Regulations. Prior to 20th November, 2018, the said table enumerated
15 courses, with the norms and standards, therefor, to be found in
Appendices 1 to 15 to the Regulations. Vide Notification dated 20th
November, 2018, however, the National Council for Teacher
Education (Recognition Norms and Procedure) Amendment
Regulations, 2018 (hereinafter referred to as "the 2018 Amendment
Regulations") were notified whereby, inter alia, Regulation 9 of the
2014 Regulations was amended to introduce two new courses, at
Serial Numbers 16 and 17 in the Table contained therein, with the
norms and standards, for these two new courses, to be found in
Appendices 16 and 17 to the Regulations. Regulation 9, to the extent
it was so amended and is relevant for the purposes of the present
controversy, may be reproduced thus:
"9. Norms and standards. -
Every Institution offering the following programmes
shown in the Table shall have to comply with the
norms and standards for various teacher education
programmes as specified in Appendix 1 to Appendix
17:
S. Norms and Standards Appendix
No. No.
*****
16. Four years Integrated Teacher Appendix
Education Programme (Pre- 16
Primary to Primary)
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17. Four years Integrated Teacher Appendix
Education Programme (Upper- 17"
Primary to Secondary)
13. Alongside the insertion, in the Table in Regulation 9 of the
2014 Regulations, the 2018 Amendment Regulations also added,
correspondingly, Appendices 16 and 17 in the 2014 Regulations,
setting out the norms and standards for the aforestated newly
introduced 4-year Integrated Teacher Education Programmes (ITEP),
for the pre-primary primary, and upper-primary to secondary, levels.
Clause 1.2, in both the said Appendices, was identical, and read thus:
"The programme shall be offered in the institutions which are
composite institutions as defined in Clause (b) of regulation 2
of the National Council for Teacher Education (Recognition,
Norms and Procedures) Regulation, 2014 (hereafter referred
to as the principal regulation in this Appendix), on the date of
making an application for this programme."
14. The 2014 Regulations were amended, once again, by the 2019
Amendment Regulations, which replaced, in their entirety,
Appendices 16 and 17 to the Regulations. The petitioners are
aggrieved by Clause 1.2 of Appendices 16 and 17 to the 2014
Regulations, as thus replaced by the 2019 Amendment Regulations,
which read thus:
"The Integrated Teacher Education Programme (ITEP) shall
be located in interdisciplinary academic environment which
means a duly recognised higher education institution offering
undergraduate or postgraduate programmes of study in the
field of Liberal arts or humanities or social sciences or
sciences of commerce or mathematics as the case may be."
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The impugned Public Notice
15. On 20th May, 2019, the NCTE issued a Public Notice, inviting
applications for grant of recognition/permission for the aforesaid two
new Integrated Teacher Education Programmes (referred to,
hereinafter, as "ITEP"). This Public Notice, which is, chiefly, the
subject matter of challenge in these writ petitions, is required to be
reproduced, in extenso, thus:
"NATIONAL COUNCIL FOR TEACHER EDUCATION
(A STATUTORY BODY OF GOVERNMENT OF
INDIA)
Hans Bhawan Wing-II, 1 Bahadur Shah Zafar Marg, New
Delhi-110002
Website: www.ncte-india.org
20th May, 2019
PUBLIC NOTICE
NCTE is mandated to effect planned and co-ordinated
development of teacher education in the country (except the
State of Jammu & Kashmir). NCTE proposes to launch two 4
Years Integrated Teacher Education Programmes (ITEP).
2. In pursuance to the order of the Hon‟ble Supreme
Court of India dated 15th May 2019 in M. A. No. 982/2019 in
Writ Petition Civil No. 276/2012 titled Maa Vaishno Devi
Mahila Mahavidyalaya vs. State of U.P. and others, the
NCTE, in consultation with State Governments/UTs, has
decided to invite online applications from the existing
Central/ State Universities and established private
Universities, along-with degree colleges, between 03rd June
2019 to 31 July 2019, for grant of recognition/permission for
the following programmes for the academic session 2020-
2021 in the States/UTs as indicated below: -
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Name of the Course Name of the State/UT from
which applications will be
accepted online
a. 4 Years Integrated Haryana, Sikkim, Tripura,
Teacher Education Assam, Andhra Pradesh,
Programme (Pre- Karnataka, Meghalaya,
Primary to Primary) Arunachal Pradesh,
Uttarakhand, Tamilnadu,
Maharashtra, Andaman &
Nicobar Islands, Bihar, Delhi,
Rajasthan (in 64 Tehsils as per
Annexure-„A‟)
b. 4 years integrated Telangana, Sikkim, Tripura,
Teacher Education Assam, Karnataka,
Programme (Upper- Meghalaya, Arunachal
Primary to Secondary) Pradesh, Uttarakhand, Tamil
Nadu, Maharashtra, Bihar,
Delhi, Rajasthan (in 64
Tehsils as per Annexure-„A‟)
3. The applicant institution/University must submit the
application to the concerned Regional Committee along with
the requisite documents and also with a formal
Recommendation of the Concerned State Government/UT
administration.
4. It may be noted that only those institutions as defined
under clause 1.2 of Appendixes 16 and Appendixes 17 of
National Council for Teacher Education (Recognition, Norms
and Procedure) Amendment Regulations, 2019 on the date of
making the application shall be eligible for this programme.
Accordingly, only Universities and Degree colleges are
eligible to apply for the courses mentioned above.
MEMBER SECRETARY
National Council for Teacher Education"
16. The petitioners in these writ petitions take exception to the
afore-extracted Public Notice, dated 20th May, 2019, issued by the
NCTE, on two counts. Firstly, they submit that, by limiting the
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eligibility, for applying for the two ITEPs, to institutions covered by
Clause 1.2 of Appendices 16 and 17 to the 2014 Regulations, as
amended by the 2019 Amendment Regulations, teacher education
institutions, such as the petitioners, despite being "composite
institutions", have been debarred from applying for grant of
recognition/permission to conduct the two new ITEPs. Secondly, they
object to the exclusion of institutions located in certain states - and, in
the case of the State of Rajasthan, certain tehsils - from being able to
apply for the said two courses.
17. It may be noted, at this juncture itself, that, regarding the
exclusion, of certain states - and, in the case of the State of Rajasthan,
certain tehsils - from the impugned Public Notice dated 20th May,
2019, the NCTE has explained that, prior to inviting applications by
way of the impugned Public Notice, they had entered into
communications with the various States and Union Territories,
seeking their concurrence to the conducting of the two new ITEP
courses, in their territories, and that applications had been invited only
for commencement of the courses in States which unequivocally
acquiesced thereto. Where any State, or Union Territory, either
rejected the proposal for commencing the two new ITEP courses,
within its boundaries, or exhibited ambivalence, the NCTE chose not
to invite applications, for conducting the courses in such States or
Union Territories. The NCTE has placed, on record, the
correspondence entered into, by it, with the various States and Union
Territories, and the response, if any, received thereto, which,
according to the NCTE, would rationalise its decision to limit the
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invitation, vide the impugned Public Notice, to apply for starting the
two new ITEP courses, to certain specific States or tehsils. The
responses of the States or Union Territories, in which applications
were not invited, or were invited only for one of the two ITEPs, or for
selected areas or tehsils, may be enumerated thus:
(i) Applications were invited, from institutions located in the
Andaman & Nicobar Islands, only for the pre-primary to
primary ITEP, and not for the upper-primary to secondary
ITEP. The response, dated 25th April, 2019, from the Andaman
and Nicobar Administration, to the NCTE, conveyed in-
principle consent to introduction of the pre-primary to primary
ITEP, from the academic session 2021-22, in the Tagore
Government College of Education (TGCE). However, the said
communication informed that the TGCE was already running a
four-year ITEP (Upper primary to Secondary), which was
similar to the upper-primary to secondary ITEP newly
introduced by the NCTE. It would be seen, therefore, that, in
the case of the Andaman and Nicobar Islands, though the
Administration had conveyed its consent for introduction of the
pre-primary to primary ITEP only from the 2021-2022
academic session, applications were invited, by the impugned
Public Notice, for the said programme, for the 2020-2021
academic session.
(ii) In the case of Andhra Pradesh, applications were invited
only for the pre-primary to primary ITEP. This was in
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consonance with the response, dated 16th February, 2019, from
the Government of Andhra Pradesh to the NCTE, which stated
that the Government of Andhra Pradesh was desirous to have
ITEP exclusively for pre-primary as the Government intended
to recognise pre-primary education sponsored schools.
(iii) No applications were invited from any institution located
in the Union Territories of Chandigarh, Dadra & Nagar Haveli,
Lakshadweep, Puducherry or Daman and Diu, or the States of
Chhattisgarh, Goa, Kerala and Himachal Pradesh, as no
responses were received, from these States/Union Territories, to
the communication, dated 14th January, 2019, from the NCTE,
seeking their concurrence for introduction of the two new
ITEPs in their territories.
(iv) In the case of the state of Gujarat, the Education
Department of the State, vide its communication dated 20th
June, 2019, addressed to the NCTE, conveyed the concurrence,
of the State Government to be included "in the list of states to
be given permission for the integrated B.Ed. Programme and to
start new integrated B.Ed. (shiksha shastri)" programme. As
this programme was different from the two new ITEPs, being
started by the NCTE, the NCTE responded, to the Government
of Gujarat, vide letter dated 10th July, 2019, regretting that the
request of the Government of Gujarat could not be considered
as applications had been invited only for the ITEPs covered by
Appendices 16 and 17, and there was no clarity, regarding the
courses proposed, vis-à-vis these Appendices.
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(v) In respect of the state of Haryana, the response, from the
Additional Director (Admission) in the Directorate of School
Education, the NCTE, suggested that the "4 years Integrated
Teacher Education Programme (Pre-Primary to Primary)
(Appendix 16 as per NCTE Amendment Regulation 2018)"
could be introduced. Accordingly, the impugned Public Notice,
dated 20th May, 2019, invited applications, from institutions
located in the state of Haryana, only for the pre-primary to
primary ITEP.
(vi) The State of Jharkhand responded, vide its letter dated
21st February, 2019, by opining that, while the two new ITEPs
were useful for quality teacher training, it was desirable that
such courses be opted by Universities and Degree Colleges.
Having so opined, the letter requested the NCTE to "take
appropriate action and furnish comment to NCTE as
requested." The learned Additional Solicitor General, appearing
on behalf of the respondents, submitted that such
communications could not be treated as unequivocal, and were,
therefore, considered to be rejections, by the NCTE.
(vii) The State of Madhya Pradesh, vide its communication
dated 5th July, 2019, conveyed its consent for conducting of the
two new ITEPs in Science and Humanities in those Universities
and private colleges in the State, where NCTE programmes
were already being run. However, the NCTE wrote back, on
10th July, 2019, regretting that there was little time left for
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appropriate institutions to apply and, therefore, requesting the
State Government to give consent, for conducting the ITEPs,
the next year.
(viii) The State of Manipur, in response to the communication
dated 14th January, 2019 from the NCTE, responded by
forwarding an internal communication, dated 16 th January,
2018, from the Director, State Council of Educational Research
and Training in the State of Manipur to the Principal Secretary,
SCERT, notifying the intention to start two new courses. This
communication was, obviously, irrelevant to the request of the
NCTE, as contained in its letter dated 14th January, 2019. No
applications were, therefore, invited, for the two new ITEPs,
from institutions located in the State of Manipur.
(ix) The States of Mizoram, Nagaland and West Bengal
communicated, vide their letters dated 27th February, 2019, 31st
January, 2019 and 5th March, 2019, addressed to the NCTE,
conveying their regret in being unable to agree to introduction
of the two new ITEPs in the State. No applications were,
therefore, invited from institutions in these states, for the two
new ITEPs.
(x) The State of Odisha, vide its undated response, to the
NCTE, enlisted four colleges which had applied, in the
Department of Higher Education in the state, and requested the
NCTE "to take appropriate course of action at its end". It is
seen that, on the face of the said communication, there is a
W.P. (C) 7666/2019 & other connected matters Page 20 of 84
handwritten endorsement, apparently by an officer of the
NCTE, to the effect that the concerned official in the
Government of Odisha had informed, telephonically, only to
include Appendix 17 to the 2014 Regulations, and that the
requisite information would be sent, in writing, on 17 th May,
2019. There is, however, nothing further, to indicate whether
any such "information" was, or was not, sent by the
Government of Odisha; be that as it may, no applications were
invited, from any institution located in the state of Odisha, for
starting either of the two new ITEPs.
(xi) The State of Punjab, in its response dated 26th April,
2019, stated that at least a month‟s time was required, in order
to take a decision on the request of the NCTE, in view of the
existing model code of conduct, which had been enforced
preceding elections. The learned ASG submits that this, too,
could not be treated as consent, on the part of the state of
Punjab, to the introduction of the two new ITEPs in the State.
Accordingly, no applications were invited, for introduction of
the two new ITEPs, in the State of Punjab.
(xii) The State of Rajasthan responded to the communication,
dated 14th January, 2019, from the NCTE, by way of an Order,
dated 6th February, 2019, submitting that the two new ITEPs
would be sanctioned only in the 64 tehsils enlisted in the tabular
statement attached with the said letter. Accordingly, the
impugned Public Notice dated 20th May, 2019 invited
applications, for commencing the two new ITEPs, only from
W.P. (C) 7666/2019 & other connected matters Page 21 of 84
institutions located in the said 64 tehsils, in the State of
Rajasthan.
(xiii) The State of Telangana conveyed its consent, vide letter
dated 30th January, 2019 addressed to the NCTE, only for
invitation of applications for the Upper Primary to Secondary
ITEP, governed by Appendix 17 to the 2014 Regulations.
Accordingly, the impugned Public Notice, dated 20th May, 2019
invited applications from institutions located in the State of
Telangana only for the Upper Primary to Secondary ITEP.
(xiv) In the case of the State of Uttar Pradesh, while the Higher
Education Section in the State government conveyed, vide its
letter dated 1st June, 2019, its agreement to adopt the two new
ITEPs, the record reveals that, prior thereto, on 3 rd May, 2019,
the same authority had conveyed that the power to grant of
NOC for affiliation of new courses vested in the Executive
Council of the State Universities, established under the Uttar
Pradesh State Universities Act, 1973 and that the said State
Universities were autonomous institutions, so that there was no
role of the State Government in the matter. This somewhat
ambiguous stand, as adopted by the State of Uttar Pradesh was,
apparently, not treated as sufficient to warrant invitation of
applications, from institutions located in the said State, for
starting the two new ITEPs. The impugned Public Notice, dated
20th May, 2019, therefore, does not invite applications from any
institution located in the State of Uttar Pradesh, for
commencing either of the said two new courses.
W.P. (C) 7666/2019 & other connected matters Page 22 of 84
18. In respect of all other States or Union Territories, which had, in
the opinion of the NCTE, expressed unequivocal assent, to
commencement of the said two new ITEPs within their territories, the
impugned Public Notice dated 20th May, 2019 invites applications.
19. We have taken pains to deal with the situation, as it prevailed in
respect of each of the States, or Union Territories, from institutions
located wherein no applications had been invited by the impugned
Public Notice, in view of a grievance, voiced by Mr. Sanjay Sharawat,
learned counsel appearing for the petitioners, that, in assessing the
responses received from the various States and Union Territories, to
the communiqué, dated 14th January, 2019, sent by it, the NCTE had
acted arbitrarily. Having carefully analysed the responses from the
various States and Union Territories - which we have attempted,
hereinabove, to paraphrase - we are unable to subscribe to the
submission, of Mr. Sharawat, that the NCTE did not properly
appreciate, or act on the basis of, the communications received from
the various States and Union Territories. Whether the NCTE was, or
was not, justified in inviting such communications, before issuing the
impugned Public Notice dated 20th May, 2019, is an aspect which we
shall examine by and by; suffice it to state, at this stage, however, that
we do not find substance in the grievance, of Mr. Sharawat, regarding
the manner in which the responses, received from the States and
Union Territories, to the communication dated 14th January, 2019,
addressed by it, was evaluated and assessed by the NCTE.
W.P. (C) 7666/2019 & other connected matters Page 23 of 84
Rival Submissions
20. We proceed, now, to record the rival stances, as taken before us
by the petitioners, represented by Mr. Sanjay Sharawat and the NCTE,
represented by Mr. Sanjay Jain, learned ASG.
Petitioners‟ submissions
21. Two distinct challenges have been ventilated, by the petitioners,
with respect to the two new ITEPs, and invitation of applications from
institutions thereagainst. The first challenge is directed against Clause
1.2 of Appendix 16, and Appendix 17, to the 2014 Regulations, as
amended by the 2019 Amendment Regulations, i.e. to the limiting, of
the right to introduce the said courses/programmes, to universities and
higher education institutions, thereby denying, to all other composite
institutions, the right to apply for introducing the said courses. The
second challenge is with respect to the impugned Public Notice, dated
20th May, 2019, on various grounds. The submissions, advanced by
Mr. Sharawat, learned counsel appearing for the petitioners may also,
therefore, be conveniently segregated, as relatable to the first, or the
second, challenge.
22. With respect to the confining of the right, to apply for starting
the two new ITEPs, to universities and higher educational institutions,
Mr. Sharawat submits thus:
W.P. (C) 7666/2019 & other connected matters Page 24 of 84
(i) A conjoint reading of Regulations 8(1), 2(b) and 3, of the
2014 Regulations, revealed that composite institutions were
permitted, thereunder, to apply for starting new courses, and
teacher education institutions also fell within the ambit of the
expression "composite institution", as defined therein. The
limitation, engrafted by Clause 1.2 in Appendices 16 and 17 to
the 2014 Regulations, whereby the right to apply for starting the
two new ITEPs was restricted to Universities and higher
education institutions, therefore, was contrary to the
dispensation as contained in the main Regulations. Mr.
Sharawat submitted that the law did not permit engrafting, in an
Appendix to a statutory Regulation, a limitation which was not
contained in the Regulation itself. An Appendix to the
Regulation, he would submit, cannot dilute the effect of the
Regulation itself.
(ii) "Micro-classification", of "composite institutions", by
carving out, from the said class, "universities and higher
education institutions", was violative of Article 14 of the
Constitution of India.
(iii) Appendices 16 and 17 to the 2014 Regulations, as
introduced by the 2019 Amendment Regulations, expressly
stipulated that institutions, desirous of running the two new
ITEPs, were required to have a separate faculty therefor. Once
this requirement had specifically been engrafted in the norms
and standards governing institutions, who wished to conduct the
W.P. (C) 7666/2019 & other connected matters Page 25 of 84
said ITEPs, there was no reasonable justification for excluding,
therefrom, teacher education institutions, and restricting the
entitlement, for conducting such courses, to Universities and
Higher Education Institutions.
(iv) Mr. Sharawat also pointed out, in this context, that when,
by way of Appendix 13 to the 2014 Regulations, similar four
year B.A. B.Ed/B.Sc. B.Ed. courses were introduced, teacher
education institutions were also made eligible to apply for
running the said courses.
23. Insofar as the grievance of the petitioners, with respect to the
impugned Public Notice, dated 20th May, 2019, is concerned, Mr.
Sharawat advances the following submissions:
(i) The decision, of the NCTE, to seek the view of State
Governments, and Governments of Union Territories, prior to
inviting applications by the impugned Public Notice dated 20 th
May, 2019, was contrary to Regulation 7 of the 2014
Regulations, which contemplated seeking of the
recommendations, from the State Governments, after
submission of application by the interested institutions. In fact,
Regulation 7 went on to stipulate that, if recommendations,
from the State Governments, as invited, were not received in
time, the Regional Committee would proceed to process the
applications. The decision to limit invitation of applications, by
an a priori communication with the State Governments,
W.P. (C) 7666/2019 & other connected matters Page 26 of 84
therefore, amounted to amendment of the statutory Regulations
by executive fiat, which, obviously, is impermissible in law.
(ii) For the same reason, the requirement, in the impugned
Public Notice dated 20th May, 2019, of the submission of
application by the institutions in response thereto, having
necessarily to be accompanied by a formal recommendation
from the State Government, was contrary to Regulation 7 of the
NCTE Regulations supra, which contemplated communication,
which the State Governments, by the NCTE, after receiving
applications from institutions interested in commencing the
concerned courses.
(iii) The NCTE had acted in excess of the power vested in it
by the NCTE Act and the Regulations framed thereunder, in
issuing the impugned Public Notice dated 20th May, 2019,
inasmuch as these statutory instruments did not confer, on the
NCTE, any power to issue such a Public Notice.
(iv) The impugned Public Notice amounted to placing
restrictions, on the fundamental right of the petitioners to run
their institutions, or start any particular courses therein, vested
by Article 19(1)(g) of the Constitution of India. Such
restrictions, which could only be justified under Article 19(2),
could not be introduced by way of executive instructions.
(v) The limiting of the right to apply to start the two new
ITEPs, from institutions located in the State of Rajasthan, to
W.P. (C) 7666/2019 & other connected matters Page 27 of 84
those in 64 specified tehsils, amounted to denying, to the
institutions located outside these 64 tehsils, a level playing
field. It was submitted that a similar dispensation, as introduced
vide an earlier Public Notice, dated 27th February, 2015, was
challenged, before this Court, in a batch of writ petitions, which
were allowed vide judgment dated 2nd February, 2016, of a
learned Single Judge, the lead matter being W.P. (C) 775/2016
(Vidha Sudha Welfare Foundation Samiti v. National Council
for Teacher Education1). The same Public Notice, dated 27th
February, 2015, it was pointed out, was also challenged before
the High Court of Madhya Pradesh, in W.P. 19819/2015
(Ambition College of Education v. National Council for
Teacher Education 2), which was allowed vide judgment dated
28th January, 2016, the Special Leave Petition against which
decision was also dismissed by the Supreme Court, vide order
dated 8th April, 2019. Reliance was also placed, by Mr.
Sharawat, on the judgment, of a learned Single Judge of the
High Court of Madras in W.P. 3236/2010 (Senthil Education
Society v. Member Secretary, NCTE), which, too, challenged a
similar Public Notice, dated 28th July, 2009, which restricted
invitation of applications on the basis of ban imposed by certain
State Governments, and was allowed by the High Court of
Madras, vide judgment dated 4th March, 2011.
(vi) The power to seek recommendations, from the State
Government was, under the 2014 Regulations, with the
1
2016 SCC OnLine Del 639
2
2016 SCC OnLine MP 9159
W.P. (C) 7666/2019 & other connected matters Page 28 of 84
Regional Committees. The NCTE could not, therefore, exercise
such power.
(vii) Applying the doctrine facit cessare tacitum, once
Regulation 7 of the 2014 Regulations contained an express
provision for consultation, with the concerned State
Governments after receipt of applications, such consultation,
prior to inviting applications, necessarily stood foreclosed.
(viii) The right of the petitioners, to submit applications to
commence the two new ITEPs, in their respective institutions,
emanated from the provisions of the NCTE Act and the
applicable Rules and Regulations, and could not be divested by
means of the impugned Public Notice.
(ix) As held by the Supreme Court in State of Maharashtra
v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya3, the
NCTE Act was referable to Entry 66 in List I of the 7th
Schedule to the Constitution of India. In applying and
implementing the provisions of the NCTE Act or the
Regulations framed thereunder, therefore, the Central
Government could not allow itself to be inhibited by the views
expressed by the respective State Governments.
(x) Reliance was also placed, by Mr. Sharawat, on para 62 of
the report in Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya3 to contend that the right of his clients could not
3
(2006) 9 SCC 1
W.P. (C) 7666/2019 & other connected matters Page 29 of 84
be curtailed by the impugned Public Notice, contrary to the
provisions of the NCTE Act and Regulations.
(xi) Mr. Sharawat also pointed out that, had Regulation 7 of
the 2014 Regulations, and the provisions thereof, been
scrupulously followed by the NCTE, the petitioners would have
had an opportunity to challenge any adverse recommendation,
of the State Government, by way of appeal to the appellate
authority. The act of the NCTE in not inviting applications,
from States or Union Territories, effectively eviscerated the
right of institutions, located in "excluded" States, or tehsils,
from challenging the decision to exclude them. By way of
illustration of the prejudice caused on this count, Mr. Sharawat
refers to the Order, dated 6th February, 2019, issued by the
Department of Higher Education, Government of Rajasthan, on
the basis whereof, in the impugned Public Notice dated 20th
May, 2019, applications were invited only from institutions
located in 64 tehsils. In order to understand Mr. Sharawat‟s
contention, it is necessary to reproduce the relevant portion of
the aforesaid Order, dated 6th February, 2019, issued by the
Department of Higher Education, Government of Rajasthan,
thus:
"Government of Rajasthan
Department of Higher Education
F. 10 (4) Edu-4/2008 Part Date: 06 Feb 2019
W.P. (C) 7666/2019 & other connected matters Page 30 of 84
Order
State Government‟s policy for granting
NOC/recommendation to NCTE for establishing new teacher
education colleges/opening new programme/increase in seats
in the ongoing approved programmes for session 2020-21
shall be as under: -
S. Programme Policy
No.
1 B.Ed. NOC/recommendation shall
2 B.El.Ed. not be made for opening any of
Bachelor of Education these programme/course in
3 (B.Ed.) through ODL session 2020-21
Mode
4 B.P.Ed.
5 M.Ed.
6 M.P.Ed.
7 B.Ed. (part-time)
programme of 3 years‟
duration
8 B.A.-B.Ed./BSc.-B.Ed. State NOC/recommendation
integrated programme for Four-year integrated B.A.-
of 4 Years duration B.Ed./B.Sc.-B.Ed. programme
shall be made only for those
existing institutions which are
already running B.A./B.Sc.
Programme in 64 tehsils. List
of such tehsils is given at
Annexure-1.
9 Integrated B.Ed.-M.Ed. NOC/recommendation shall be
programme of 3 Years made only for those colleges
duration which are already running
B.Ed. & M.Ed. programme as
per NCTE Regulations, 2014.
(*Excluding Shiksha Shastry and Shiksha Acharya and related
integrated courses)
Note: if NCTE introduces the new teacher training
programme ITEP (Integrated Teacher Education
W.P. (C) 7666/2019 & other connected matters Page 31 of 84
Programme) and bands the B.Ed. and foyers integrated
programme, then the new ITEP Programme would be
sanctioned in the aforesaid 64 tehsils only."
(Emphasis supplied)
Pointing out that the course/programme referred to at S. No. 8
of the table in the afore-extracted Order dated 6th February,
2019, was the pre-existing course, commenced in 2014, Mr.
Sharawat submits that, had the aforesaid decision of the
Department of Higher Education, Government of Rajasthan
been obtained in accordance with the procedure prescribed in
Regulation 7 of the 2014 Regulations, his client would have had
an opportunity to point out that he had, in fact, been running the
BA-B.Ed. course since 2018, thereby resulting in the inclusion,
in the list of tehsils from which applications were invited, of the
tehsil in which his client was located. Mr. Sharawat points out
that, therefore, as a result of the skewed procedure, followed by
the NCTE, in communicating with the State Government before
inviting applications vide the impugned Public Notice, the
NCTE acted on the basis of flawed data, which the affected
institutions had no opportunity to controvert. In this context,
Mr. Sharawat placed reliance on paras 13, 62, 63 and 66 of the
judgment of the Supreme Court in Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya3.
(xii) Section 12 of the NCTE Act set out the "Functions" of
the NCTE, whereas Section 14 specifically deals with
recognition of Institutions, offering course or training in teacher
W.P. (C) 7666/2019 & other connected matters Page 32 of 84
education. Sub-section (1) of Section 14 required every
institution, intending to offer a course or training in teacher
education to, for grant of recognition under the NCTE Act,
make an application to the concerned Regional Committee, and
sub-section (3) requires the concerned Regional Committee to,
on receipt of such application, and after obtaining necessary
particulars from the institution, pass an order granting
recognition to the institution, if it was satisfied that the
institution had adequate financial resources, accommodation,
library, qualified staff, laboratory and fulfilled such other
conditions as were required for proper functioning of the
institution for a course or training in teacher education. This
was made subject only to conditions to be determined by the
Regulations to be framed under the NCTE Act. Mr. Sharawat
contended that, applying the principle generalia specialibus non
derogant, the scope and ambit of Section 14 of the NCTE Act
could not be whittled down by a premature recourse to
obtaining of the views of the respective State Governments,
which exercise would be relatable to Section 12. To bring home
the contention that specialised provisions, under the NCTE Act,
had to give way to general provisions, Mr. Sharawat sought to
place reliance on paragraphs 4, 5 and 32 of the report in
National Council for Teacher Education v. Vaishnav Institute
of Technology and Management4.
4
(2012) 5 SCC 139
W.P. (C) 7666/2019 & other connected matters Page 33 of 84
24. Mr. Sharawat conceded, however, that he was not seeking to
challenge the merits of the decisions of the Governments of the
individual States or Union Territories.
25. Mr. Sharawat placed reliance on the following decisions, apart
from those already mentioned herein above:
(i) Government of Andhra Pradesh v. P. Laxmi Devi5
(paras 33 to 35),
(ii) Ramchandra Keshav Adke v. Govind Joti Chavare,
(1975) 1 SCC 5596(para 25),
(iii) Babu Verghese v. Bar Council of Kerala7(paras 31 and
32),
(iv) Captain Ganpati Singhji v. State of Ajmer8,
(v) Shrimati Hira Devi v. District Board, Shahjahanpur9,
(vi) Sub-Divisional Officer, Sadar v. ShambhooNarain
Singh10,
(vii) Birla Higher Secondary School v. Lt Governor11,
(viii) Chief Settlement Commissioner, Rehabilitation
Department, Punjab v. Om Prakash12,
(ix) Patna Improvement Trust v. Smt. Lakshmi Devi13,
(x) State of Rajasthan v. LBS B.Ed. College14 and
5
(2008) 4 SCC 720
6
(1975) 1 SCC 559
7
(1999) 3 SCC 422
8
1955 (1) SCR 1065
9
1952 SCR 1122 at 1130
10
(1969) 1 SCC 825
11
ILR 1973 (1) Del 634
12
1968 (3) SCR 655
13
1963 Supp (2) SCR 812
14
(2016) 16 SCC 110
W.P. (C) 7666/2019 & other connected matters Page 34 of 84
(xi) Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Education and Charitable
Trust v. State of Tamil Nadu15.
NCTE‟s Submissions
26. Arguing per contra, Mr. Sanjay Jain, learned ASG, advances
the following contentions:
(i) Re. Challenge to Clause 1.2 of Appendices 16 and 17 to
the 2014 Regulations:
(a) All composite institutions were not universities, or
degree colleges. These institutions could not be treated at
par. The decision, of the NCTE, to restrict entitlement, in
the manner of conducting the two new ITEPs, to
Universities and higher education colleges, was based on
the perception that these institutions would be better
equipped to handle the two new courses.
(b) This decision was also based on Clause 4 of
Chapter 7, containing the "Summary of
Recommendations" of the Justice J. S. Verma
Commission, the recommendations whereof had been
made binding, on the NCTE, by virtue of the orders
passed by the Supreme Court in Rashtrasant T. M. S. &
15
(1996) 3 SCC 15
W.P. (C) 7666/2019 & other connected matters Page 35 of 84
S. B. V. M. C. A. Vid. v. Gangadar Nilkant Shende16,
which read thus:
"It is desirable that new Teacher Education
Institutions are located in multi-and inter-
disciplinary academic environment. This will
have significant implications for the redesigning
of norms and standards of various Teacher
Education courses specified by the NCTE. This
will also have implications for employment and
career progression of prospective teachers.
Existing teacher education institutions may be
encouraged to take necessary steps towards
attaining academic parity with the new
institutions."
(c) Regulation 9 of the 2014 Regulations required
every institution, offering the programme as shown in the
Table thereunder, to comply with the norms and
standards prescribed in Appendices 1 to 17 to the said
Regulations. Inasmuch as the petitioners did not fulfill
the criteria specified in Clause 1.2 of Appendices 16 and
17, they were not entitled to apply for permission to start
the two new ITEPs.
(d) Section 32 of the NCTE Act conferred unfettered
power, to the NCTE, to make or amend Regulations.
(e) Clause 1.2 of Appendices 16 and 17 to the 2014
Regulations constituted reasonable restrictions, under
Article 19(6) of the Constitution of India, which had a
rational nexus to the object sought to be achieved
16
SLP (C) 4247-4248/2009
W.P. (C) 7666/2019 & other connected matters Page 36 of 84
thereby, which was safeguarding of the interests of the
students, teachers and the educational institution itself.
(ii) Re. Challenge to Public Notice dated 20th May, 2019:
(a) The States and Union Territories being vital
stakeholders in the exercise of starting of the two new
ITEPs, within their respective geographical territories,
the NCTE did not deem it appropriate to invite
applications, for starting the said two new ITEPs, from
institutions located in the states, or in the regions, where
the concerned State Governments were unwilling to
commence the said courses. Reliance has been placed, for
this proposition, on Modern Dental College and
Research Centre v. State of Madhya Pradesh17.
(b) Excluding certain States, or certain districts, from
the ambit of the impugned Public Notice dated 20 th May,
2019, was founded on the logic that it was inadvisable to
allow mushrooming of teacher educational institutions in
one particular tehsil or in one particular State. The State
Government being the best judge in that regard, a
conscious decision, to keep the respective State
Governments in the loop, before inviting applications for
starting the said courses, was taken.
17
(2016) 7 SCC 353
W.P. (C) 7666/2019 & other connected matters Page 37 of 84
(c) The Supreme Court had, in its judgment in
Jawaharlal Nehru Technological University Registrar
v. Sangam Laxmi Bai Vidyapeet18 , held that the State
Government/University had the power to refuse grant of
NOC to start a course in Pharmacy in the city of
Hyderabad. The rationale for the said decision, which
was that there were already several institutions imparting
education in the area, was found to be justified, by the
Supreme Court.
(d) The contention, of the petitioner, that the direction,
in the impugned Public Notice, to applicant institutions,
to submit, with their applications, a formal
recommendation of the concerned State Government,
was ultra vires to the 2014 Regulations, was also
misconceived. Regulation 5 of the 2014 Regulations
never restricted the documents, which could be required
to be submitted, along with the online application.
(e) Requiring the formal recommendation, from the
concerned State Government was akin to the
requirement, of the Medical Council of India, for an
"Essentiality Certificate" from the concerned State
Government, from applicants intending to open medical
colleges. The insistence, of the MCI, on the production of
such an "essentiality certificate", had been upheld by the
Supreme Court in Chintpurni Medical College and
18
2018 SCC Online SC 2277
W.P. (C) 7666/2019 & other connected matters Page 38 of 84
Hospital v. State of Punjab19. Moreover, this
requirement, too, was based on the perceived
inadvisability of allowing mushrooming of educational
institutions in a particular State or area.
(f) Section 12 of the NCTE Act obligated the NCTE
to take all steps, as it thought fit, for ensuring planned
and co-ordinated development of teacher education and
for the determination and maintenance of standards for
teacher education, as well as for the purposes of
performing its functions under the NCTE Act. Clause (f),
in the said Section required the NCTE to "lay down
guidelines for compliance by recognised institutions, for
starting new courses or training, and for providing
physical and instructional facilities, staffing pattern and
staff qualification". If, therefore, before inviting
applications from institutions which desired to start the
two new ITEPs, the NCTE thought it appropriate to
solicit the views of the concerned Governments of the
States and Union Territories, it was only acting in
furtherance of Section 12 of the NCTE Act, and in
exercise of the duty cast on it thereby.
(g) Education was a State subject and, therefore, the
decision of the State Government, regarding the
advisability, or otherwise, of opening an institution of
19
(2018) 5 SCC 1
W.P. (C) 7666/2019 & other connected matters Page 39 of 84
higher education, within its territory, had to be accorded
primacy.
(h) The NCTE was only a regulator. The two new
ITEPs had necessarily to be at a place where it was
possible to have multidisciplinary teaching. The
petitioner institutions were conducting teacher training
courses with bare minimum facilities, and it was doubtful
whether they would be in a position to conduct a course
of the magnitude of the two new ITEPs. The decision to
restrict the States, or areas, from which applications were
invited, for commencing the said two new ITEPs was,
therefore, a conscious policy decision, which was not
vitiated by arbitrariness of any kind, and was based on
the inputs received from the concerned State
Governments. Reliance was placed, by the learned ASG,
in this context, on Adarsh Shiksha Mahavidyalaya v.
Subhash Rahangdale20, and an order, dated 10th
September, 2013, of the Supreme Court in Rashtrasant
T. M. S. & S. B. V. M. C. A. Vid. v. GangadarNilkant
Shende16.
(i) Section 12 of the NCTE Act empowered the
NCTE to make recommendations to the Central and State
governments, in the matter of programmes for teacher
education. The exercise of obtaining the prior
concurrence, of the respective State Governments, or
20
(2012) 2 SCC 425
W.P. (C) 7666/2019 & other connected matters Page 40 of 84
Union Territories, before inviting applications for the two
new ITEPs, as well as the issuance of the impugned
Public Notice dated 20th May, 2019, itself, were relatable
to the power vested in the NCTE by clauses (c), (f) and
(j) of Section 12 of the NCTE Act.
(j) The NCTE was not required to be vested with any
specific power, in order to be competent to issue the
impugned Public Notice dated 20th May, 2019. Issuance
of Public Notices were an integral part of any regulatory
regime, and did not require any specific enabling
provision. By issuing such Public Notice, transparency,
and outreach to the maximum number of persons, was
achieved. Moreover, the power to issue the impugned
Public Notice could also be related to the power to
prescribe norms and standards, which was, in any case,
statutorily vested in the NCTE.
(k) The reference, by the petitioners, to the fact that
the NCTE Act had been enacted under Entry 66 of List I
of the 7th Schedule to the Constitution of India, could not
advance the case of the petitioner to any extent, as the
distribution of subjects, amongst the various lists in the
7th Schedule was relatable to Article 246 of the
Constitution of India, which merely enabled the
Parliament to legislate in any field in respect of which the
State could also legislate. Moreover, in Rai Sahib Ram
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Jawaya Kapur v. State of Punjab21, it had been held that
the executive power of the state was co-extensive with its
legislative power. Merely, therefore, because the NCTE
Act had been enacted by Parliament, State Governments
were not denuded of the power to exercise executive
functions, with respect to the subject matter of the NCTE
Act. Ultimately, education was the responsibility of the
State Government which was, therefore, an indispensable
stakeholder in the exercise. Reference was also invited,
in this context, to para 149 in Modern Dental College17.
27. Consequently, argues the learned ASG, the submissions of the
petitioners, being devoid of merit, deserved to be rejected.
Analysis
28. We proceed to deal with the two challenges, as ventilated in
these writ petitions by the petitioners, individually and seriatim.
Re. Challenge to Clause 1.2 of Appendices 16 and 17 of the 2014
Regulations
29. In order to appreciate this challenge, it is necessary to chart,
first, the genesis of the 2014 Regulations, which owe their origin, in a
manner, to the Verma Commission Report.
21
1955 (2) SCR 225
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30. The pre-existing National Council for Teacher Education
(Recognition Norms and Procedure) Regulations, 2009 were replaced
by the 2014 Regulations, which came into effect on 28 th November,
2014. The genesis of the dispute, which led to the necessity for
replacing the 2009 Regulations, is to be found in a decision, taken by
the Western Regional Committee (WRC) of the NCTE, during its
104th to 109th meetings, held in 2008, in which the WRC granted
recognition to 291 colleges, situated in the State of Maharashtra, for
starting the Diploma in Education (D.Ed.) programme, despite the
recommendations, of the Government of Maharashtra, to the contrary.
The Government of Maharashtra had clearly stated that it did not
require more D.Ed. institutions, owing to want of job opportunities for
students who graduated from such institutions. The decision of the
WRC was challenged, by way of a public interest litigation, which
came up before the Nagpur bench of the High Court of Bombay
which, vide its order dated 7th January 2009, quashed the decision of
the WRC. The matter was carried, by the Colleges, before the
Supreme Court by way of SLP (C) 4247-4248/2009 (Rashtrasant T.
M. S. & S. B. V. M. C. A. Vid. v. Gangadar Nilkant Shende16).
During the said proceedings, vide order dated 13th May, 2011, the
Supreme Court approved the Constitution of a Commission, headed
by Hon‟ble Mr. Justice J. S. Verma, former Chief Justice of India
(hereinafter referred to as "the Verma Commission"), to examine the
various contentious issues arising in the context of teacher education,
especially in the context of the Right of Children to Free and
Compulsory Education Act, 2009. Among the terms of reference of
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the Verma Commission, as approved by the Supreme Court on 13 th
May, 2011, were the following:
"a) Whether in the context of the provisions of the Right of
Children to Free and Compulsory Education Act, 2009, the
Regulations on Recognition Norms and Procedure that lay
down the norms and procedure for various teacher education
courses which are adopted by the NCTE are adequate or need
review.
b) Whether further reforms are necessary to improve
quality of teacher training and in-surface training.
c) To review whether the Regulations on Recognition
Norms and Procedure, currently in force as laid down by the
NCTE are being properly enforced. If not, how to evolve a
fair and transparent manner in which these norms and
standards may be enforced.
*****
g) To determine what the methodology should be to
examine/enforce quality in teacher training institutions."
31. The report of the Verma Commission was filed, before the
Supreme Court, in SLP (C) 4247-4248/2009 supra which, vide its
order dated 10th October, 2012, noted that it had carefully gone
through the recommendations of the Verma Commission and were "of
the view that the same deserves to be accepted". The following
passages, from the order, dated 10th October, 2012, of the Supreme
Court, merit reproduction:
"The learned Solicitor General pointed out that the High-
Powered Commission appointed pursuant to the directions
given by the Court has submitted its report in three volumes.
The report of the Commission has been taken on record.
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We have carefully gone through the recommendations
made by the Commission and are of the view that the same
deserves to be accepted.
With a view to enable the Government of India and
NCTE to indicate the steps proposed to be taken for
implementation of the recommendations made by the
Commission, we deem it proper to adjourn the case for two
months within which affidavits of the competent authorities
be filed on the issue of implementation of the
recommendations of the Commission."
(Emphasis supplied)
32. In its subsequent order, dated 29th January, 2013, the Supreme
Court opined that it was "in the interest of the society in general and
the students community in particular that a time bound schedule is
framed by the Government and the NCTE for implementation of the
recommendations made by the Committee headed by Hon‟ble Sh.
Justice J. S. Verma (Former Chief Justice of India)." Again, in order
dated 28th February, 2013, the Supreme Court required the Central
Government to file another affidavit, clearly specifying the concrete
steps already taken for implementation of the recommendations made
by the Verma Commission. Thereafter, on 3rd May, 2013, the
Supreme Court opined that a small group, from the members of the
Verma Commission, could be requested to supervise the
implementation of the recommendations of the Commission. Acting
on the said direction, the Central Government constituted a sub-group,
comprising four members of the Verma Commission, to monitor the
progress, in the matter of implementation of the recommendations of
the Verma Commission and to report, to the Supreme Court, with
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respect thereto. This action was appreciated by the Supreme Court, in
its order dated 6th August, 2013, which went on to direct thus:
"In order to facilitate further implementation of the report of
the Verma Commission, we direct that the recommendations
which may be made by the sub-Group shall be binding on the
Government of India and the Governments of all the States
and Union Territories as also NCTE and University Grants
Commission and all of them shall implement the same
without any objection and without modifying the same."
33. The aforesaid sub-Group was designated, by the Supreme
Court, vide its subsequent order dated 10th September, 2013 -
wherewith the proceedings in SLP (C) 4247-4248/2009 were closed -
as the "Implementation Committee". The Supreme Court reiterated, in
the said order, its earlier mandate that the recommendations of the
Implementation Committee would be binding on all States, Union
Territories, the Central Government, the NCTE and the UGC, who
would be bound to implement the same without reservation or
modification. The following passages, from the order dated 10 th
September, 2013, are relevant:
" One of the recommendations made by the
Implementation Committee is the revision of the regulations
framed by NCTE.
With a view to ensure that there is no further
complication in the matter of grant of recognition for
establishment of new Teacher Training Colleges/Institutions
and permission to the existing Colleges/Institutions to run the
Teacher Training Courses, we direct the concerned authorities
including the NCTE to notify the new regulations latest by
30.11.2013.
We also reiterate the direction given earlier and make
it clear that all the recommendations made by the
Implementation Committee shall be binding on the
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Government of India, the Governments of all the States and
the administration of Union Territories as also NCTE and
University Grants Commission and all of them shall
implement the same without any objection and without
modifying the same.
With the above direction, the proceedings of these
petitions are closed and the special leave petitions are
disposed of."
34. Consequent on the above directions of the Supreme Court, the
2014 Regulations came to be promulgated, superseding the existing
2009 Regulations.
35. Clearly, it would not be open to any Court to question the
wisdom of any provision, in the 2014 Regulations, or in any
amendment effected to the said Regulations, which is in line with, or
furthers, any of the recommendations of the Verma Commission. The
recommendations of the Verma Commission, having been sanctified
by the imprimatur of the Supreme Court, were binding on the NCTE,
and are also binding on every judicial authority, hierarchically below
the Supreme Court.
36. Among the recommendations of the Verma Commission, was
the recommendation (already extracted in para 33 ibid) that new
Teacher Education Institutions ought to be located in multi-and inter-
disciplinary academic environments. This recommendation, inter alia,
has been held, by the Supreme Court, to be worthy of implicit
acceptance and implementation. In that view of the matter, the
wisdom of the decision, to introduce, by the 2019 Amendment
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Regulations, the said requirement, as one of the norms and standards
to be followed, by institutions seeking to run the two new ITEPs, is
not open to examination by this Court.
37. It has been sought to be contended by the petitioners, through
Mr. Sharawat, that this requirement, as contained in Clause 1.2 in
Appendices 16 and 17 to the 2014 Regulations, divested composite
institutions, such as the petitioners, of the right to apply for starting
the two new ITEPs, which right was, otherwise, available to them
under the 2014 Regulations. Juxtaposed with this submission, Mr.
Sharawat would contend that an Appendix to a Regulation could not
divest a right vested by the Regulation itself.
38. The submission, needless to say, proceeds on a presumption
that the 2014 Regulations conferred, on every composite institution, a
right to run every course, or programme, governed by the Regulations.
39. The petitioners base this submission on clause (a) of Regulation
3, and on Regulation 8(1) of the 2014 Regulations. Regulation 3, with
clause (a) thereof, may be reproduced, once again, as under:
"3. Applicability. -
These regulations shall be applicable to all
matters relating to teacher education
programmes for preparing norms and standards
and procedures for recognition of institutions,
commencement of new programmes and
addition to sanctioned intake in the existing
programmes including the following, namely: -
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(a) recognition for commencement of new
teacher education programmes which shall be
offered in composite institutions;"
(Emphasis supplied)
40. Having carefully read Regulation 3, and clause (a) therein, we
are not persuaded to accept the submission, of Mr. Sharawat, that this
clause conferred any absolute right, on every composite institution, to
be entitled to run every course enumerated in Regulation 9.
Regulation 3 is a provision which delineates the applicability of the
2014 Regulations. In other words, it charts the boundaries and
parameters, within which the 2014 Regulations would apply. A bare
reading of Regulation 3 reveals that the 2014 Regulations are, by
means of the said Regulation 3, made applicable to all matters relating
to teacher education programmes for preparing norms and standards
and procedures for regulation of institutions, commencement of new
programmes and addition to sanctioned intake in existing
programmes, including the situations contemplated by clauses (a) to
(e) thereunder, i.e. (a) recognition for commencement of new teacher
education programmes which shall be offered in composite
institutions, (b) permission for introduction of new programmes in
existing teacher in education institutions duly recognised by the
NCTE, (c) permission for additional intake in existing teacher
education programmes duly recognised by the NCTE, (d) permission
for shifting or relocating of premises of existing teacher education
institutions and (e) permission for closure or discontinuation of
recognised teacher education programmes or institutions, as the case
may be. These five clauses (a) to (e) merely set out five aspects, to
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which the 2014 Regulations would apply. One of the said aspects is,
undoubtedly, recognition for commencement of new teacher
education programmes which shall be offered in composite
institutions. This, however, only means that new teacher education
programmes, offered in composite institutions, would be one of the
aspects to which the 2014 Regulations would apply. It cannot be
extrapolated to mean that every composite institution is entitled to
conduct, or run, every new teacher education programme.
41. Adverting, now, to Regulation 8 (1) of the 2014 Regulations, it
is seen that the said sub-Regulation reads thus:
"New Teacher Education Institutions shall be located in
composite institutions and the existing teacher education
institutions shall continue to function as stand-alone
institutions; and gradually move towards becoming composite
institutions."
42. We are unable to understand how the petitioners seek to derive
any right, qua the cause of action ventilated in these proceedings, from
this sub-Regulation. Regulation 8(1) deals, in the first place, with
"new teacher education institutions". None of the petitioners is a "new
teacher education institution". Nor is Clause 1.2, in Appendices 16,
and 17, to the 2014 Regulations, restricted to "new teacher education
institutions". The Public Notice, dated 20th May, 2019, too, does not
invite applications only from "new teacher education institutions". As
such, Regulation 8(1) of the 2014 Regulations, which stipulates that
new teacher education institutions shall be located in composite
institutions, does not carry the case of the petitioner further, to any
appreciable degree.
W.P. (C) 7666/2019 & other connected matters Page 50 of 84
43. Moreover, "composite institution" is defined, in clause (b) of
Regulation 2 of the 2014 Regulations as meaning "a duly recognised
higher education institution offering undergraduate or postgraduate
programmes of study in the field of liberal arts or humanities or social
sciences or sciences, commerce or mathematics, as the case may be, at
the time of applying for recognition of teacher education programmes,
or an institution offering multiple teacher education programmes".
The petitioners, quite obviously, seek to come within the ambit of this
definition by means of the latter part thereof, which covers
"institutions offering multiple teacher education programmes". The
respondents, to be fair, do not dispute the fact that the petitioner-
institutions are, indeed, "composite institutions". That fact, in our
view, cannot, in any case, be disputed, as it is a matter of record that
the petitioner-institutions do, indeed, offer multiple teacher education
programmes.
44. Institutions offering multiple teacher education programmes
are, however, not the only categories of institutions, which are eligible
to be treated as "composite institutions", within the meaning of clause
(b) of Regulation 2. Any duly recognised higher education institution,
offering undergraduate or postgraduate programmes of study in the
field of liberal arts of humanities or social sciences or sciences or
commerce or mathematics, is, by definition, a "composite institution".
The impugned Clause 1.2, in Appendices 16 and 17 to the 2014
Regulations refers to "duly recognised higher education institutions
offering undergraduate or postgraduate programmes of study in the
W.P. (C) 7666/2019 & other connected matters Page 51 of 84
field of liberal arts of humanities or social sciences or sciences or
commerce or mathematics as the case may be". The Clause, therefore,
merely borrows the words of Regulation 2(b), which defines
"composite institution". All institutions, which conform to the
stipulations contained in Clause 1.2 of Appendices 16 and 17 would,
therefore, be "composite institutions", within the meaning of clause
(b) of Regulation 2 of the 2014 Regulations. Clause 1.2 of Appendices
16 and 17 to the 2014 Regulations, as introduced by the 2014
Amendment Regulations, therefore, also invites applications only
from composite institutions, though they are composite institutions
which fall within the first part of the definition of "composite
institution", as contained in Regulation 2(b), and not institutions, such
as the petitioners, who fall within the second part of the said
definition. So long as the institutions, which conform to Clause 1.2 of
Appendices 16 and 17 to the 2014 Regulations, are "composite
institutions", it cannot be said that Clause 1.2 of the said Appendices
detracts, in any manner, from Regulation 8(1). Regulation 8(1) merely
states that new teacher education institutions would be located in
composite institutions. Clause 1.2, too, invites applications only from
composite institutions. The contention, of Mr. Sharawat, that Clause
1.2 of Appendices 16 and 17, falls foul of Regulation 8(1) is,
therefore, devoid of substance.
45. The basic premise, of Mr. Sharawat, that, merely by virtue of
their being "composite institutions", as defined in Regulation 2(b) of
the 2014 Regulations, a right vested, in his clients, to run, or conduct,
that new ITEPs, is, therefore, itself fundamentally misconceived. In
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our view, no right vests, in any "composite institution", merely by
virtue of its being one, to conduct, or run, any particular teacher
education course. If, therefore, additional requirements are
incorporated, in the norms and standards applicable to any one, or
more, of such courses, which may result in any particular composite
institution, not being in a position to conduct such course or courses, it
cannot be said that, thereby, any vested right has been divested. Nor
can it be said that, by doing so, the norms and standards, as contained
in the Appendices to the 2014 Regulations, fall foul of any provision
in the Regulations themselves.
46. The following passages, from All India Council for Technical
Education v. Surinder Kumar Dhawan22- which involved a
challenge to the denial, by the All India Council for Technical
Education (AICTE), to the YMCA Institute of Engineering,
Faridabad, of permission to start a bridge course - guide us, in the
view we are taking:
"14. There is considerable force in the submission of the
appellant. Having regard to clauses (i) and (k) of Section 10 of
the All India Council for Technical Education Act, 1987 ("the
Act", for short), it is the function of AICTE to consider and
grant approval for introduction of any new course or
programme in consultation with the agencies concerned, and
to lay down the norms and standards for any course including
curricula, instructions, assessment and examinations.
15. The decision whether a bridge course should be
permitted as a programme for enabling diploma-holders to
secure engineering degree, and if permitted, what should be
the norms and standards in regard to entry qualification,
content of course instructions and manner of assessing the
performance by examinations, are all decisions in academic
22
(2009) 11 SCC 726
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matters of technical nature. AICTE consists of professional
and technical experts in the field of education qualified and
equipped to decide on those issues. In fact, a statutory duty is
cast on them to decide these matters.
16. The courts are neither equipped nor have the
academic or technical background to substitute themselves in
place of statutory professional technical bodies and take
decisions in academic matters involving standards and
quality of technical education. If the courts start entertaining
petitions from individual institutions or students to permit
courses of their choice, either for their convenience or to
alleviate hardship or to provide better opportunities, or
because they think that one course is equal to another,
without realising the repercussions on the field of technical
education in general, it will lead to chaos in education and
deterioration in standards of education.
17. The role of statutory expert bodies on education and
the role of courts are well defined by a simple rule. If it is a
question of educational policy or an issue involving academic
matter, the courts keep their hands off. If any provision of law
or principle of law has to be interpreted, applied or enforced,
with reference to or connected with education, the courts will
step in. In J.P. Kulshrestha (Dr.) v. Allahabad
University,(1980) 3 SCC 418 this Court observed: (SCC pp.
424 & 426, paras 11 & 17)
"11. ... Judges must not rush in where even
educationists fear to tread. ...
***
17. ... While there is no absolute ban, it is a rule of
prudence that courts should hesitate to dislodge
decisions of academic bodies."
*****
22. The decision of AICTE not to permit bridge courses for
diploma-holders and its decision not to permit those who have
passed 10+1 examinations (instead of 10+2 examination) to
take the bridge course relate to technical education policy
which falls within their exclusive jurisdiction. Courts will not
interfere in matters of policy.
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23. This Court in Directorate of Film Festivals v. Gaurav
Ashwin Jain, (2007) 4 SCC 737 pointed out: (SCC p. 746,
para 16)
"16. ... Courts do not and cannot act as appellate
authorities examining the correctness, suitability and
appropriateness of a policy, nor are courts advisors to
the executive on matters of policy which the executive
is entitled to formulate. The scope of judicial review
when examining a policy of the Government is to
check whether it violates the fundamental rights of the
citizens or is opposed to the provisions of the
Constitution, or opposed to any statutory provision or
manifestly arbitrary. Courts cannot interfere with
policy either on the ground that it is erroneous or on
the ground that a better, fairer or wiser alternative is
available. Legality of the policy, and not the wisdom
or soundness of the policy, is the subject of judicial
review...."
The above observations will apply with added vigour to the
field of education.
*****
31. These being educational issues, they cannot be
interfered with, merely because the court thought otherwise.
If AICTE was of the view that only those diploma-holders
with 10+2 (with PCM subjects) should be permitted to
upgrade their qualification by an ad hoc bridge course or that
such bridge course should not be a regular or permanent
feature, there is no reason to interfere with such a decision.
The courts cannot by their orders create courses, nor permit
continuance of courses which were not created in accordance
with law, or lower the minimum qualifications prescribed for
admissions. The High Court's decision to permit candidates
who have completed 10+1 plus four-years' post diploma
course to take the bridge course cannot be sustained.
32. This is a classic case where an educational course has
been created and continued merely by the fiat of the court,
without any prior statutory or academic evaluation or
assessment or acceptance. Granting approval for a new
course or programme requires examination of various
W.P. (C) 7666/2019 & other connected matters Page 55 of 84
academic/technical facets which can only be done by an
expert body like AICTE. This function cannot obviously be
taken over or discharged by courts. In this case, for example,
by a mandamus of the court, a bridge course was permitted
for four-year advance diploma-holders who had passed the
entry-level examination of 10+2 with PCM subjects.
Thereafter, by another mandamus in another case, what was a
one-time measure was extended for several years and was
also extended to post diploma-holders. Again by another
mandamus, it was extended to those who had passed only
10+1 examination instead of the required minimum of 10+2
examination. Each direction was obviously intended to give
relief to students who wanted to better their career prospects,
purely as an ad hoc measure. But together they lead to an
unintended dilution of educational standards, adversely
affecting the standards and quality of engineering degree
courses. Courts should guard against such forays in the field
of education."
(Emphasis supplied)
47. The challenge, of the petitioners, to the impugned Clauses 1.2
in Appendices 16 and 17 to the 2014 Regulations, as introduced by
the 2019 Amendment Regulations, therefore, fails.
Re. challenge to Public Notice dated 20th May, 2019
48. We advert, now, to the second challenge of the petitioner,
which is directed against the Public Notice, dated 20 th May, 2019,
issued by the NCTE.
49. The main contention of Mr. Sharawat, in impugning the said
Public Notice, is that the obtaining of comments from the individual
State Governments/Union Territories, by the NCTE, before inviting
applications for the two new ITEPs, and, on the basis thereof, limiting
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such invitation to institutions located in certain specified States or, in
the case of the State of Rajasthan, certain specific tehsils, infracted
Regulation 7 of the 2000 Regulations, and the scheme contained
therein. Mr. Sharawat points out that a very clear, and self-contained,
scheme is to be found in Regulation 7, which, read with Regulation 5
contemplates,
(i) in the first instance, application, by an institution
desirous of running a teacher education programme, to the
concerned Regional Committee, along with processing fee and
requisite documents [Regulation 5(1)],
(ii) rejection, by the NCTE, of applications which are
incomplete, along with forfeiture of the application fee
[Regulation 7(1)],
(iii) summary rejection of the application, in the case of (a)
failure to furnish the application fee or (b) failure to submit
print out of the applications made online along with the
required land documents, within 15 days of submission of the
online application [Regulation 7(2)],
(iv) passing of an order of refusal of recognition, after issuing
show cause notice to the institution, in any case in which the
application is found to contain false information or to conceal
any facts, which may have bearing on the decision-making
process [Regulation 7(3)],
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(v) sending, of a written communication, along with a copy
of the application forms submitted by the institution, by the
concerned Regional Committee to the State Government or
administration of Union Territory, as well as the affiliating
body concerned, within 30 days of receipt of the application, in
chronological order of such receipt [Regulation 7(4)],
(vi) furnishing, by the concerned State Government or Union
Territory administration, of its recommendations or comments
to the concerned Regional Committee, within 45 days of the
date of issue of the aforesaid letter, to the State Government or
Union territory, as the case may be, with the specific rider that,
in case the State Government or Union Territory Administration
is not in favour of recognition, it shall provide detailed reasons
or grounds thereof with necessary statistics, which shall be
taken into consideration by the concerned Regional Committee
while disposing of the application [Regulation 7(5)],
(vii) in case the recommendation of the State Government is
not received within the aforesaid period, sending, of a reminder,
providing further time of 30 days, to the State Government, to
furnish their comments on the proposal [Regulation 7 (6)],
(viii) in case no reply, from the State Government is received
even thereafter, sending, of a second reminder, to the State
Government for furnishing its recommendation, within 15 days
[Regulation 7(6)], and
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(ix) in case no reply is received from the State Government
even within the said extended period, processing and deciding
of the application of the institution, by the Regional Committee
on merits, without waiting, any further, for comments or
recommendation of the State Government [Regulation 7 (7)].
50. This, Mr. Sharawat submits, is the sanctified statutory scheme,
and the NCTE could not depart therefrom. By communicating, in
advance, with the State Governments and Union Territories, the
petitioners complained that the NCTE effectively jettisoned the
procedure prescribed in sub-regulations (4) to (7) of Regulation 7 of
the 2014 Regulations or, at any event, reduced the application of the
said sub-regulations to a formality. Mr. Sharawat submits that the
2014 Regulations did not contemplate limiting invitation of
applications, for the new ITEPs - or, for that matter, for any new
course - from institutions which otherwise satisfied the norms and
standards stipulated in the Appendices to the 2014 Regulations,
merely on account of their geographical location. Succinctly stated,
the submission of Mr. Sharawat is that the 2014 Regulations do not
contemplate the geographical location of any particular institution as
an inhibiting factor, insofar as application, by such institution, for
starting any new course - which would include the two new ITEPs -
was concerned. Rather, he submits, applications were required to be
invited from all institutions, which fulfill the norms and standards
stipulated in the Appendices relating to that course and, thereafter,
after screening the applications, the concerned Regional Committees
were to get in touch with the State Governments or Union Territories.
Even at that stage, the State Governments, or Union Territories, could
W.P. (C) 7666/2019 & other connected matters Page 59 of 84
not blankly refuse to permit starting of the new course/courses, but
had to justify the decision with cogent reasons, backed by relevant
statistical data. The decision of the State Government, and the
material and data furnished by it, would be considered by the
Regional Committee, while disposing of the application of the
institution concerned. Non-receipt, from the State Government, or
Union Territory Administration, of any response to the
communication of the Regional Committee, within the periods
stipulated in Clauses (4) and (5) of Regulation 7, would entitle the
Regional Committee to proceed with consideration of the application,
of the institution concerned, for permission to start the course/courses,
on merits, without waiting any further.
51. It is clear that, while, undoubtedly, the State governments, or
governments of Union Territories, within which the institutions, or
courses, are to be commenced, are stakeholders in the matter, primacy
is accorded, by the statute, to the necessity of starting the
course/courses/institutions, rather than to any indefensible objection,
by the concerned State/Union Territory, thereto. The statute
contemplates that, ultimately, it is the decision of the Regional
Committee which is to prevail, rather than the objection of the
concerned State Government or Union Territory. Quite obviously, this
is in the interests of furthering of education, and in ensuring, as far as
possible, the reach, of the educational arm of the state, to all corners
of the country.
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52. Mr. Sharawat submits that, once Regulation 7 - specifically
sub-regulation (4) thereof - contemplates communication, by the
Regional Committee, with the government of the concerned State or
Union Territory, only after the applications were submitted, and
prescribed, thereafter, in detail, the manner in which the request was
to be examined by the concerned State/Union Territory, the manner in
which it was to respond, and the action to be taken on the basis of the
response received, the NCTE acted with marked illegality in
corresponding with the governments of the concerned States/Union
Territories even before inviting applications and, acting on the
responses from the States/Union Territories thereto, limiting
applications to institutions located in certain select states, Union
Territories, or tehsils. To our mind, this proposition is
unexceptionable, and we are not required, in order to arrive at this
conclusion, to refer to any abstruse Latin maxims, or enter into any
involved exercise of constitutional interpretation. Taylor v. Taylor23,
as notably followed in Nazir Ahmed v. King Emperor24 and a
plethora of judgments of the Supreme Court, the most well-known
being, perhaps, State of Uttar Pradesh v. Singhara Singh25, conclude
the issue, in law, in favour of the petitioners. The legal principle,
fossilised over a period of time, is thus enunciated, in Singhara
Singh25:
"8. In Nazir Ahmed's case L.R. 63 IndAp 372 the Judicial
Committee observed that the principle applied in Taylor v.
Taylor [1875] 1 Ch. D. 426 a Court, namely, that where a
power is given to do a certain thing in a certain way, the thing
must be done in that or nor at all and that other methods of
23
(1875) 1 Ch D 426
24
AIR 1936 PC 523
25
AIR 1964 SC 358
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performance are necessarily forbidden, applied to judicial
officers making records under s. 164 and, therefore, held that
magistrate could not give oral evidence of the confession
made to him which he had purported to record under s. 164 of
the Code. It was said that otherwise all the precautions and
safe guards laid down in Sections 164 and 364, both which
had to be read together, would become of such trifling value
as to be almost idle and that "it would be an unnatural
construction to hold that any other procedure was permitted
than which is laid down with such minute particularity in the
section themselves."
9. The rule adopted in Taylor v. Taylor [1875] 1 Ch. D.
426 is well recognised and is founded on sound principle. Its
result is that if a statue has conferred a power to do an act
and has laid down the method in which power has to be
exercised, it necessarily prohibits the doing of the act in any
other manner than that which has been prescribed. The
principle behind the rule is that if this were not so, the
statutory provision might as well not have been enacted."
(Emphasis supplied)
53. In the present case, the manner in which the State Government
is to be involved in the process of invitation and processing of
applications, for commencing new teacher education courses, is
specifically set out in Regulations 5 and 7 of the 2014 Regulations.
Regulation 5 does not contemplate involvement of the State
government at the time of inviting applications, or prior thereto.
Involvement of the State government is specifically contemplated, by
sub-regulation (4) of Regulation 7, after applications have been
received, scanned and screened. It is only thereafter, that a written
communication, along with the application form submitted by the
institution is to be sent, by the Regional Committee, to the
government of the concerned State or Union Territory. The
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importance of adhering to this scheme is underscored by the detailed
procedure prescribed, even thereafter, for consideration of the
application by the concerned State Government, its response thereto,
fixation of specific time schedules, grant of two, and no more,
opportunities, to the State Government to respond within such fixed
time schedules, and the manner in which the response of the State
Government is to be considered by the Regional Committees as well
as the manner in which the Regional Committee is to proceed, in case
no response is received from the State Government. This entire
procedure has, clearly, been reduced to a nullity, by the impugned
decision, of the NCTE, to invite the views of the State Governments,
or the governments of the Union Territories, behind the back of the
aspiring institutions, even before inviting applications.
54. Abiding by the mandate of sub-regulation (4) of Regulation 7,
after applications are invited, can possibly offer no panacea. In the
first place, a large number of institutions, located outside the States,
Union Territories, or regions specified in the impugned Public Notice
dated 20th May, 2019, have been prevented even from applying for
starting the two new ITEPs. It is important to note, at this point, that
sub-regulation (4) of Regulation 7 does not contemplate an abstract
query being made, from the State government, as to whether it was
desirous of commencing the two new ITEPs within its territory, or
not, but contemplates, rather, communication, to the State
Government, with copies of the application forms submitted by the
institutions located within its territory. In other words, the State
Governments are required to answer keeping in view the application
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forms submitted by the institutions located within their territories. The
requirement, in Regulation 7(4), of forwarding of the written
applications of the institutions, to the State Government, cannot be
treated as a mere formality. Quite obviously, the State Government
would have, before it, not only an abstract request, for its view as to
whether it would be feasible for it to allow commencing of the two
new ITEPs, within its territory, or not, but would also have the
applications submitted by the institutions located within its territory
available for its perusal. It is quite possible that an otherwise
recalcitrant State Government may, after perusing the applications
submitted by the institutions located within its territory, be of the view
that commencing the two new ITEPs would, in fact, be a viable
option. The manner in which the NCTE has acted in the present case,
has irretrievably foreclosed this option, to the governments of those
States and Union Territories, who did not "satisfactorily" respond to
the communication, dated 14th January, 2019, by the NCTE. Neither
would any institution, located within such "excluded" States, Union
Territories, or tehsils, have an opportunity to apply for starting the two
new ITEPs nor, consequently, would the concerned States or Union
Territories have an opportunity to peruse such applications. This
opportunity, which is statutorily conferred, on the States and Union
Territories, by the scheme set out in Regulation 7 of the 2014
Regulations, could not have been eviscerated by the NCTE, by
communicating, in advance, with the governments of the States and
Union Territories and, thereby, eliminating some of them from the
reckoning altogether. This decision, of the NCTE, does complete
violence to the scheme of Regulation 7 of the NCTE Regulations, and
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forecloses the "excluded" States and Union Territories from
expressing their views, in the manner contemplated by Regulation 7
(4), and the sub-regulations that follow.
55. We are required, at all times, to be mindful, in such cases, of
the fact that maximising the reach of education, within the country
has, over time, metamorphosed into a sanctified constitutional goal,
with education being one of the most solemn of the fundamental
rights guaranteed by Part III of the Constitution of India.
56. Laudable motives, and lofty ideals, cannot justify departure, of
any authority which sports the insignia of Article 12 of the
Constitution of India, from the strict letter of the law. We do not
doubt the bona fides of the NCTE, in acting in the manner it did, by
entering into "advance correspondence" with the States and Union
Territories. The NCTE was, in doing so, probably acting ex abundant
cautela, with the objective of causing minimum inconvenience to the
maximum number of "aspiring" institutions. That, however, is not the
manner in which the letter of the law, as embodied in the 2014
Regulations, required the NCTE to act. If law must rule, the rule of
law must prevail. The Regulations have been framed by the NCTE
itself. If the NCTE decides to depart from the scheme set out in the
Regulations, it can do so, but only by amending the Regulations, and
not by executive fiat. Regulation, of the exercise of invitation,
evaluation and consideration of applications, from teacher education
institutions desirous of commencing the two new ITEPs, cannot be in
a manner foreign to the Regulations themselves.
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57. We find substance, therefore, in the grievance, voiced by Mr.
Sharawat, at the NCTE having entered into "advance
correspondence", with the States and Union Territories and, on the
basis of the responses received, or not received, thereto, having
excluded, altogether, certain States, or, in the case of the State of
Rajasthan, certain tehsils, from the impugned Public Notice dated 20th
May, 2019 supra.
58. We deem it appropriate to refer, at this point, to certain judicial
pronouncements, which appear, to us, to underscore the legal position
postulated by us hereinabove.
Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal
Medical Education and Charitable Trust15
59. In the context of our discussion, and conclusions, hereinabove,
the judgment in Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Education and Charitable Trust15, on
which Mr. Sharawat placed reliance, assumes considerable
significance. A brief glance at the facts of the said case is necessary.
On 2nd December, 1987, the Thirumuruga Kirupananda Variyar
Thavathiru Sundara Swamigal Medical Education and Charitable
Trust (hereinafter referred to as "the Trust") applied, to the Tamil
Nadu Medical University, for affiliation, of a medical college which
the Trust desired to start, as per the Dr. M. G. R. Medical University,
Tamil Nadu Act, 1987 (hereinafter referred to as "the Medical
University Act"). The University, however, desired the Trust to obtain
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an NOC from the Government of Tamil Nadu, without which the
application could not be considered. The Trust challenged this
decision, before the High Court of Madras. A learned Single Judge of
the High Court, vide order dated 13th April, 1989, by consent of
parties, directed that the University would not insist on the prior
permission of the Government and would consider the application, for
affiliation, submitted by the Trust, on merits. Vide order dated 18th
December, 1989, the University rejected the application on the ground
that it had been submitted late. This order, too, was set aside by a
learned Single Judge of the High Court, holding that the application
had been sent, by post, before the prescribed date and was not,
therefore, barred by time. The University was yet again, directed to
consider the application on merits.
60. In the interregnum, the Medical University Act was amended
by the Dr. M. G. R. Medical University, Tamil Nadu (Amendment
and Validation) Act, 1989, which inserted sub-section (5) in Section 5
of the Medical University Act. The newly inserted proviso required
every college, seeking affiliation to the University, to obtain, a priori,
permission of the Government to establish the college, as well as to
establish that the conditions of such permission stood complied with.
61. On 16th August, 1991, a joint inspection of the medical college,
sought to be opened by the Trust was conducted by the University,
pursuant whereto, by order dated 16th August, 1991, the application,
for affiliation, submitted by the Trust, was rejected on the ground of
certain deficiencies in infrastructure. This motivated the Trust to file a
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third writ petition, which was also allowed, by a learned Single Judge
of the High Court, vide judgment dated 7th February, 1992, who held
that the University had taken irrelevant and extraneous considerations
into account, while rejecting the application, for Trust, for affiliation.
Writ appeals were preferred, thereagainst, before the Division Bench
of the High Court.
62. During the pendency of the said writ appeals, the Indian
Medical Council (Amendment) Act, 1993 came into effect on 27 th
August, 1992. The said Act inserted Sections 10-A, 10-B and 10-C in
the Indian Medical Council Act, 1956 (hereinafter referred to as "the
IMC Act"). Section 10-A specifically ordained that the establishment
of a new medical College, opening of a new or higher course of study
or training, could be done only with the previous permission of the
Central Government obtained in accordance with the provisions of
that section. In view of the enactment of these provisions, the Central
Government contended, before the Division Bench which was hearing
the writ appeals against the judgment, dated 7th February, 1992 supra,
of the learned Single Judge, that, with the introduction of Section 10-
A in the IMC Act, the entire field came to be occupied thereby, and
that the Medical University Act, to the extent it occupied the same
field, had been rendered inoperative. Consequently, it was submitted,
it was no longer necessary, for the establishment of a medical college,
to obtain prior approval of the State Government.
63. The submission was not, however, favourably received by the
Division Bench of the High Court which, vide judgment dated 30th
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April, 1993, allowed the writ appeal filed by the State Government
and dismissed the writ appeal filed by the Trust, against the judgment,
dated 7th February, 1992 (supra) of the learned Single Judge. The
Division Bench held that the amendment introduced in Section 5(5) of
the Medical University Act was not, in any way, affected by the
provisions of the IMC Act and that, even after insertion of Section 10-
A in the IMC Act, prior permission of the State Government was
necessary for establishing a medical college. This decision, of the
Division Bench of the High Court was carried, in appeal, by the Trust,
before the Supreme Court, and was decided by the judgment under
discussion.
64. Ad interim directions were issued, by the Supreme Court,
during the pendency of the aforesaid appeal, of the Trust, before it,
directing the Trust to apply to the State Government for the requisite
permission. Pursuant thereto, the Trust applied to the Government of
Tamil Nadu, for grant of permission, submitting, in the application,
that it fulfilled all necessary criteria, including infrastructural
facilities, therefor. However, by order dated 9th March, 1994, the
Government of Tamil Nadu rejected the application, essentially on the
ground that the number of medical colleges available in the State were
sufficient to cater to the prevalent educational requirements and that,
therefore, there was "no need for starting any more medical colleges
in the State". Despite this order, the Supreme Court directed the
Medical Council of India (MCI) to inspect the medical College of the
Trust and submit a report, regarding the infrastructure available with
it. The MCI submitted a favourable report, recommending grant of
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permission to start teaching in the said college. The University also
inspected the college and submitted a favourable report.
65. The Trust, thereafter, applied, under Section 10-A of the IMC
Act, to the Central Government, which directed issuance of a letter of
intent, to the Trust, for starting the new medical College. Armed with
these recommendations, the Trust represented, to the Government of
Tamil Nadu, on 6th January, 1996, for issuance of an essentiality/no
objection certificate, so that it could establish its medical college. Vide
communication dated 10th January, 1996, however, the Government of
Tamil Nadu rejected the said request, pointing out that it had not
changed its existing policy, of not permitting any private trust or
management to start a medical/dental college.
66. The Supreme Court observed that, in these circumstances, the
only impediment to the establishment of the medical college, by the
Trust, was the stand, adopted by the State Government, that
permission could not be granted, to a private trust, to establish a
medical college. This, pointed out the Supreme Court, threw up, for
consideration, the question of the role of the State Government in the
matter of establishment of a medical college. Needless to say, the
Government of Tamil Nadu asserted its right on the basis of the
proviso to Section 5(5) of the Medical University Act, which was
sought to be disputed, by the Trust, relying on Section 10-A of the
IMC Act. The Trust contended that Section 10-A of the IMC Act
would prevail over Section 5(5) of the Medical University Act
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67. After subjecting Article 254 of the Constitution of India, which
deals with inconsistency between laws made by the Parliament and
laws made by State legislators, to a searching analysis, the Supreme
Court held, in the following terms (contained in para 26 of the report)
that there was repugnancy, between the proviso to Section 5(5) of the
Medical University Act and Section 10-A of the IMC Act:
"It cannot, therefore, be said that the test of two legislations
containing contradictory provisions is the only criterion of
repugnance. Repugnancy may arise between two enactments
even though obedience to each of them is possible without
disobeying the other if a competent legislature with a superior
efficacy expressly or impliedly evinces by its legislation an
intention to cover the whole field. The contention of Shri
Sanghi that there is no repugnancy between the proviso to
Section 5(5) of the Medical University Act and Section 10-A
of the Indian Medical Council Act because both can be
complied with, cannot, therefore, be accepted. What has to be
seen is whether in enacting Section 10-A of the Indian
Medical Council Act, Parliament has evinced an intention to
cover the whole field relating to establishment of new medical
colleges in the country."
68. Having thus adumbrated the issue before it, the Supreme Court
proceeded to hold thus (in paras 31 and 34 of the report):
"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.,
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establishment of a new medical college and would not extend
to establishment of other colleges.
*****
34. It is no doubt true that in the scheme that has been
prescribed under the Regulations relating to establishment of
new medical colleges one of the conditions for the qualifying
criteria laid down is that essentiality certificate regarding
desirability and feasibility of having the proposed college at
the proposed location should be obtained from the State
Government. The said condition about obtaining an
essentiality certificate from the State Government regarding
desirability and feasibility of having the proposed college at
the proposed location cannot be equated with obtaining prior
permission of the State Government for establishing a new
medical college as required under the proviso to Section 5(5)
of the Medical University Act. For the purpose of granting the
essentiality certificate as required under the qualifying criteria
prescribed under the scheme, the State Government is only
required to consider the desirability and feasibility of having
the proposed medical college at the proposed location. The
essentiality certificate cannot be withheld by the State
Government on any policy consideration because the policy
in the matter of establishment of a new medical college now
rests with the Central Government alone."
(Emphasis supplied)
69. Mr. Jain, learned ASG, attempted to distinguish the judgment in
Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal
Medical Education and Charitable Trust15, by contending that,
firstly, the said decision dealt with competing Central and State
enactments, whereas no such competing enactments existed in the
present case and, secondly, that the Central Government had, in that
case, opposed the involvement of the State Government, in the matter
of establishment of the new medical College by the Trust whereas, in
the present case, he, appearing on behalf of the Central Government,
was contending that the State Governments had the right to refuse,
W.P. (C) 7666/2019 & other connected matters Page 72 of 84
even in advance of invitation of applications, permission to establish
the two new ITEPs within their respective territories.
70. Neither of these submissions, in our view, detract from the
impact of the judgment, in Thirumuruga Kirupananda Variyar
Thavathiru Sundara Swamigal Medical Education and Charitable
Trust15, on the present case. Adverting, first, to the second
submission, of Mr. Jain, we, as interpreters of law, are required to
accord precedence to the position in law, as it emerges from the
provisions of the statute and binding precedents, over the stand
adopted by either party before us. The stand being adopted by the
Central Government, or the NCTE in the present case, as vocalised by
Mr. Jain, therefore, cannot have any bearing on the applicability, or
otherwise, of the decision in Thirumuruga Kirupananda Variyar
Thavathiru Sundara Swamigal Medical Education and Charitable
Trust15. Regarding the first submission of Mr. Jain, it is correct that
while, in Thirumuruga Kirupananda Variyar Thavathiru Sundara
Swamigal Medical Education and Charitable Trust15, the Supreme
Court was confronted with two competing, and apparently conflicting,
legislations, we are not faced with any such conflicting statutes. What
we have before us is, however, executive action, by the State
Government - albeit at the behest of the NCTE - which would reduce,
to a redundancy, Regulations 5 and 7 of the 2014 Regulations. The
2014 Regulations, having been framed by the NCTE in exercise of the
powers conferred by Section 32 of the NCTE Act, partakes, in a
manner, of the character of Central legislation even if, in a sense,
subordinate. Analogising the situation to that which arose in
W.P. (C) 7666/2019 & other connected matters Page 73 of 84
Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal
Medical Education and Charitable Trust15, and applying the law laid
down in the said judgment, we are in agreement with the submission,
of Mr. Sharawat, that the obtaining of "advance opinions" from the
concerned States and Union Territories, for the commencement of the
two new ITEPs, before inviting applications under Regulation 5, and,
on the basis thereof, restricting the field of applications, in the
impugned Public Notice dated 20th May, 2019, violated Regulations 5
and 7 of the 2014 Regulations and could not, therefore, sustain the
scrutiny of law. It was not permissible to, by an executive decision,
violate the statutory mandamus enshrined in Regulations 5 and 7 of
the 2014 Regulations, and render the provisions of sub-regulation (4)
to (7) of the latter Regulation, otiose.
Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya3
71. In conjunction with the judgment in Thirumuruga
Kirupananda Variyar Thavathiru Sundara Swamigal Medical
Education and Charitable Trust15, the decision in Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya3 also assumes significance.
72. The appellant, in Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya3, applied to the NCTE, on 31st December, 2003, for
grant of permission to start a B.Ed. College for women, in accordance
with the provisions of the NCTE Act and the National Council for
Teacher Education (Norms and Conditions for Recognition of
Bachelor of Elementary Education) Regulations, 1995 (hereinafter
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referred to as "the 1995 Regulations"). The Expert Committee of the
NCTE visited the appellant‟s campus on 6th June, 2005, and verified
the adequacy of infrastructure, staff and other norms. A report,
accordingly, was submitted by the Inspection Committee to the NCTE
which approved, and granted recognition, for conducting of the B.Ed.
course by the appellant, with an intake capacity of 100 students, from
the 2005-2006 academic session. The appellant, thereafter, applied, to
the Government of Maharashtra, on 4th July, 2005, for grant of
permission to start the College, as was required by the Maharashtra
Universities Act, 1994 (hereinafter referred to as "the University
Act"). No response being forthcoming, to the said application, from
the Government of Maharashtra, the appellant approached the High
Court, by way of a writ petition.
73. The SNDT Women‟s University, in its capacity as affiliating
University, submitted, before the High Court, that it did not
recommend the case of the appellant to the State as, in the prospective
plan for 2002-2007, only one college was allocated to the Pune
district. The Government of Maharashtra, in its affidavit, contended
that it had an important role to play, in the matter of grant of
permission by the NCTE, which stood recognised by the Supreme
Court in St John's Teachers Training Institute v. Regional Director,
NCTE26. It was emphasised, by the Government of Maharashtra, that
it was a vital stakeholder in the establishment of professional courses
within the State, and was in the best position to correctly assess and
know the extent of requirement of trained manpower and supply of
26
(2003) 3 SCC 321
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trained teachers. Thus, it was contended, the input of the State of
Maharashtra, by way of grant of NOC, was vital for enabling the
NCTE to exercise its powers, and the NCTE could not grant
permission, therefor, in the absence of such NOC. On the ground that
there were sufficient colleges, conferring the B.Ed. qualification, in
the State, it was contended that a policy decision had been taken, by
the Cabinet Sub-Committee in the State, not to grant approval, or
issue NOC, for starting any new institution, imparting the said
qualification. The NCTE contended, per contra, that it was the final
authority for granting permission to start the B.Ed. course, and its
decision, to do so, was required to be respected by the affiliating
University as well as by the State Government. The issue that arose
for consideration, before the High Court, was thus delineated by the
Supreme Court, in para 13 of the report:
"The High Court, therefore, was called upon to consider the
role played by the State Government in the process of
consideration of application by the institutions seeking
recommendation of opening B.Ed. colleges by NCTE in the
light of the provisions of the Act in juxtaposition to the extent
of trained manpower required by the State and to take policy
decision on the basis of output of teachers by such colleges.
The Court was also called upon to consider whether in the
absence of any material being made available by the State
Government to NCTE the latter can process the application
and take a decision contrary to the decision of the State
Government. A question had also arisen as to whether the
State Government can refuse permission to an institution
which had been granted permission to start B.Ed. college by
NCTE under the Act and whether policy decision of the State
Government not to grant NOC would bind NCTE in the light
of the provisions of the Act."
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74. In contrast to the statutory position that obtains in the present
case, sub-regulations (e) and (f), of Regulation 5 of the 1995
Regulations, which applied in Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya3, specifically required every institution, intending to
offer a course or training in teacher education, which was not
functioning before 17th August, 1995, to submit an application for
recognition with an NOC from the State or Union territory in which it
was located.
75. The validity of these clauses had been sought to be called into
question, in St John's Teachers Training Institute26. It was sought to
be contended, in the said case, that the provision for submitting an
application for recognition, with the NOC issued by the State
Government or Union Territory, in which the institution was located,
was invalid and ultra vires, and that the State Government/Union
Territory was an alien, insofar as recognition of the institution was
concerned. By insisting on NOC from the State Government/Union
Territory, it was contended, the NCTE had created a parallel body
unknown to the law. For these reasons, it was submitted that clauses
(e) and (f) of Regulation 5 of the 1997 Regulations were liable to be
struck down. The Supreme Court, however, repelled the challenge,
holding that the power conferred on the State Government, or Union
Territory, while considering an application for grant of NOC, was not
arbitrary or uncanalized, and had to be restricted by the guidelines
issued by the NCTE in that regard. Further, it was observed, the grant,
or refusal of NOC, by the State Government or Union Territory was
not conclusive or binding, and was only required to be taken into
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consideration by the Regional Committee of the NCTE, while taking a
decision on the application, of the institution, for grant of recognition.
In that view of the matter, the Supreme Court was, in St John's
Teachers Training Institute26, of the view that no occasion, for
striking down clauses (e) and (f) of Regulation 5 of the 1997
Regulations, arose. We may observe, here, that, unlike the statutory
position which obtained in St John's Teachers Training Institute26,
we do not have, before us, any provision, either in the NCTE Act or in
the 2014 Regulations, or elsewhere in any other statutory instrument
brought to our notice, requiring institutions, applying for permission
to run any teacher education course, to furnish, with the application
submitted in that regard, a formal recommendation of the State
Government. This requirement figures, for the first time, in para 3 of
the impugned Public Notice, dated 20th May, 2019. The decision in St
John's Teachers Training Institute26, therefore, does not apply to the
facts of the case before us.
76. Having noticed the decision in St John's Teachers Training
Institute26, the Supreme Court, in Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya3, held that, the field relating to regulation and
proper maintenance of norms and standards in the teacher education
system, and matters connected therewith, was fully and completely
occupied by the NCTE Act, which was relatable to Entry 66 of List I
of the VIIth Schedule to the Constitution of India and that the State
was, therefore, proscribed from refusing permission, on any
consideration of policy. This position of law, it was noted, had already
been enunciated, by the Supreme Court, earlier, in Thirumuruga
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Kirupananda Variyar Thavathiru Sundara Swamigal Medical
Education and Charitable Trust15and Jaya Gokul Educational Trust
v. Commissioner and Secretary to Government Higher Education
Department27. Para 75 of the report is particularly significant,
especially when viewed in the backdrop of the law enunciated in
Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal
Medical Education and Charitable Trust15:
"The decision relied on by Vidharbha Sikshan
Vyawasthapak Mahasangh v. State of Maharashtra28 has no
application to the facts of the case. In that case, the power was
with the State Government to grant or refuse permission to
open BEd college. Considering the fact that if permission
would be granted, there would be large-scale unemployment,
it was decided by the State Government not to allow new BEd
colleges to be opened. It was held by this Court that such
policy decision could not be said to be arbitrary or otherwise
unreasonable. The Court in that case was not concerned with
the power or authority of the State Government vis-à-vis the
Central Government and the Act of Parliament. In the present
case, as the field was fully occupied by Entry 66 of List I of
Schedule VII to the Constitution and Parliament has enacted
the 1993 Act, it was not open to the State Legislature to
exercise power by making an enactment. Such enactment, as
per the decisions of this Court, would be void and
inoperative. It would be unthinkable that if the State
Legislature could not have encroached upon a field occupied
by Parliament, it could still exercise power by executive fiat
by refusing permission under the "policy consideration". The
contention of the State Government, therefore, has to be
negatived."
(Emphasis supplied)
77. The italicised words from the above-extracted passage from
Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya3 are
27
(2000) 5 SCC 231
28
(1986) 4 SCC 361
W.P. (C) 7666/2019 & other connected matters Page 79 of 84
significant , as they hold, categorically, that it is impermissible, even
by executive fiat, to incorporate, as a condition for application, for
permission to start a teacher education course, any requirement which
is alien to the Regulations framed under the NCTE Act .
78. Considerable reliance was placed, by the learned ASG, on the
judgment in Adarsh Shiksha Mahavidyalaya19, to justify the decision
of the NCTE to seek, in advance of invitation of applications by the
impugned Public Notice dated 20th May, 2019, the views of the
concerned States and Union Territories, regarding the introduction of
the two new ITEPs. Having carefully read the said decision, we are of
the view that it does not advance the case propounded by the learned
ASJ, to any appreciable extent. The Supreme Court, in the said case,
does not, even indirectly, approve limiting the areas from which
applications could be submitted, on the basis of advance
correspondence with the States and Union Territories. The Supreme
Court was concerned with the exercise of power, by the State, or
Union Territory, after submission of applications, under clauses (2)
and (3) of the applicable Regulations in that case - which, more or
less, were similar to clauses (4) and (5) of Regulation 7 of the 2014
regulations. We have yet to reach that stage, and are concerned with
the issue of whether the NCTE was justified in excluding certain
States/Union Territories, and certain tehsils in the State of Rajasthan,
on the basis of advance correspondence, entered into, with the said
States and Union Territories. Adarsh Shiksha Mahavidyalaya19 does
not address this issue and is, therefore, of no help to the NCTE.
W.P. (C) 7666/2019 & other connected matters Page 80 of 84
79. The decisions in LBS B.Ed. College14 and Chintpurni Medical
College and Hospital18 deal with the power of the State Government,
after submission of application, and with admission to Medical and
Dental Colleges, respectively, and we do not deem it necessary,
therefore, to allude, in any detail, to these decisions. Similarly, the
recent decision in Jawaharlal Nehru Technological University
Registrar18, deals with the obligation, or the affiliating University, to
grant NOC for opening an educational institution, irrespective of the
educational needs of the locality, and does not, therefore, impact the
controversy in the present case.
80. Mr. Sharawat has also referred us to judgments of various High
Courts, including this Court. In our view, the legal position that
obtains, from the decisions cited and digested hereinabove, is clear
and unequivocal. We do not, therefore, desire to burden this judgment
by referring to the said decisions, though the reliance, by Mr.
Sharawat, thereon, has been noted hereinbefore.
A clarificatory caveat
81. We may enter, here, a word of clarification. We are not holding,
and do not intend to hold, that the scheme of things, as contained in
sub-Regulations (4) to (6) of Regulation 7 of the 2014 Regulations,
proscribed, absolutely, the NCTE from corresponding with any State,
or Union territory, before inviting applications from institutions
interested in conducting the two new ITEPs. There can, quite
obviously, be no embargo on one governmental authority writing to
another, or even eliciting the views of the second authority. Inter
W.P. (C) 7666/2019 & other connected matters Page 81 of 84
governmental communication cannot be interdicted by a Court. It
cannot, therefore, be held that the 2014 Regulations completely
prohibited all correspondence, between the NCTE and the States and
Union Territories, prior to inviting of applications for the two new
ITEPs. Where the NCTE fell in error was in "excluding" certain
States, and Union Territories, from the impugned Public Notice, dated
20th May, 2019,on the basis of the "advance correspondence" entered
into, by it, with the States and Union Territories. Neither in
Appendices 16 and 17 to the 2014 Regulations (as introduced vide the
2019 Amendment Regulations), nor elsewhere in the 2014
Regulations, is there to be found any justification for restricting, on
the basis of its geographical location, any institution, from applying
for conducting a Teacher Education Course, among those enumerated
in Regulation 9. By eliminating certain institutions, from the
opportunity even to apply for the two new ITEPs, merely because they
happened to be located, geographically, outside the States, or Union
Territories mentioned in the impugned Public Notice, the NCTE
introduced, artificially, an additional restriction, based on the
geographical location of the institution, which is not to be found either
in Appendices 16 and 17, or elsewhere in the 2014 Regulations. We
cannot subscribe to the extreme submission, advanced by Mr.
Sharawat, that the NCTE was entirely incompetent to issue a Public
Notice, and we agree with the learned ASG, to the extent of his
submission that issuance of a Public Notice does not require any
enabling statutory provision. Having said that, however, it was
certainly not open to the NCTE to, by such Public Notice, introduce
an additional "handicap", not to be found in the 2014 Regulations,
W.P. (C) 7666/2019 & other connected matters Page 82 of 84
which would disentitle certain institutions from applying for
conducting the two new ITEPs. This amounts to amendment of the
statutory Regulations by executive fiat, for which no sanction is
available, either in the NCTE Act, or in any Rule or Regulation
framed thereunder, including the 2014 Regulations.
Conclusion
82. These writ petitions are, therefore, disposed of, in the following
terms:
(i) The challenge, by the petitioners, to Clause 1.2 in
Appendices 16 and 17 to the 2014 Regulations, as introduced
by the 2019 Amendment Regulations, is without merit, and
fails. The validity of the impugned Clauses 1.2 in Appendices
16 and 17 is, consequently, upheld.
(ii) Consequently, all institutions and colleges, which
conform to Clause 1.2 of Appendices 16 and 17 to the 2014
Regulations, would be entitled to apply for grant of
recognition/permission for starting the two new ITEPs. Clause
4 of the impugned Public Notice, dated 20 th May, 2019, shall
stand modified accordingly.
(iii) Clause 3 of the impugned Public Notice, dated 20th May,
2019, which requires that the applications, submitted by
applicant institutions/Universities, pursuant to the Public
Notice, have to be accompanied by a formal recommendation
W.P. (C) 7666/2019 & other connected matters Page 83 of 84
from the concerned State Governments/UT Administration, is
quashed and set aside.
(iv) Para 2 of the impugned Public Notice, dated 20th May,
2019, is also declared to be illegal, and is accordingly quashed
and set aside, to the extent it limits the States, Union Territories
and tehsils, from which applications may be submitted, to those
specified in the table contained therein. Institutions, located in
all States and Union Territories, which conform to the norms
and standards contained in Appendices 16 and 17 to the 2014
Regulations would, therefore, be entitled to apply, pursuant to
the impugned Public Notice dated 20th May, 2019.
83. We are sanguine that, in directing thus, we are not violating any
stipulated cut-off date as the Supreme Court has, vide order dated 15th
May, 2019, passed in Maa Vaishno Devi Mahila Mahavidyalaya v.
State of U.P.29, permitted the admission process to be completed by
30th April, 2020.
84. The writ petitions stand disposed of, in the above terms, with no
orders as to costs.
C. HARI SHANKAR, J.
CHIEF JUSTICE OCTOBER 01, 2019 HJ 29 MA 982/2019 with IA 75288/2019 in WP (C) 276/2012 W.P. (C) 7666/2019 & other connected matters Page 84 of 84