Rajasthan High Court - Jodhpur
State Of Rajasthan vs Central Modern Teachers Training ... on 30 August, 2022
Bench: Manindra Mohan Shrivastava, Madan Gopal Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D. B. Civil Special Appeal (Writ) No. 244/2022
In
S. B. Civil Writ Petition No. 15553/2021
State of Rajasthan, through Director, Elementary Education,
Education Directorate, Bikaner.
----Appellant/Respondent
Versus
1. Central Modern Teachers Training College, K.no. 208/1,
Gujrawas, Main Banad Road, Tehsil and District Jodhpur
Run and Managed by Central Modern and Educational
Society, 190 Laxmi Nagar, Paota C Road, Jodhpur (Raj.)
through its Secretary Smt. Sneh Tomar W/o Col. (Retd.)
Narendra Singh Tomar, Aged About 66 years, R/o 190,
Laxmi Nagar, Jodhpur (Raj.).
Respondent/Petitioner
2. The Western Regional Committee, National Council For
Teachers Education, through its Under Secretary, Plot
No. G7, Sector 10, Near National Highway Authority,
Dwarka, New Delhi.
----Respondent
Connected with
(2) D. B. Civil Special Appeal (Writ) No. 257/2022
In
S. B. Civil Writ Petition No. 17217/2021
State of Rajasthan, through Director, Elementary Education,
Education Directorate, Bikaner.
----Appellant/Respondent
Versus
1. Chandigram Teacher Training Institute, Bairasar
Chhota, Rajgarh, Churu, Managed by Chandigram
Memorial Welfare Society, Bairasar Chhota, Rajgarh,
Churu (Raj.) through its Secretary Ashish Kumar S/o
Megha Ram Singh, Aged 46 years, R/o 102, Bus Stand,
Kheri, Lambor Beri, Churu (Rajasthan)
Respondent/Petitioner
2. The Western Regional Committee, National Council For
Teachers Education, through its Under Secretary, Plot
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No. G7, Sector 10, Near National Highway Authority,
Dwarka, New Delhi.
----Respondent
(3) D. B. Civil Special Appeal (Writ) No. 141/2022
In
S. B. Civil Writ Petition No. 9461/2021
State of Rajasthan, through Director, Elementary Education,
Education Directorate, Bikaner
----Appellant/Respondent
Versus
1. Shri Hari Shikshak Prashikshan School, Sardarsahar,
District Churu (Raj.) Running by Society of Shri Hari
Shikshak Prashikshan Sansthan Sardarsahar, District
Churu (Raj.) through its Secretary Pawan Kumar Sharma
S/o Mangilal Sharma, aged about 42 years, Resident of
Ward No.23, Near Kisan Hostel, Sardar Shahar, District
Churu (Raj.).
Respondent/Petitioner
2. The Western Regional Committee, National Council For
Teachers Education, through its Under Secretary, Plot No.
G7, Sector 10, Near National Highway Authority, Dwarka,
New Delhi.
----Respondent
(4) D. B. Civil Special Appeal (Writ) No. 142/2022
In
S. B. Civil Writ Petition No. 9462/2021
State of Rajasthan, through Director, Elementary Education,
Education Directorate, Bikaner.
----Appellant/Respondent
Versus
1. Savitri Devi Prashikshan Sansthan, Udairamsar, Bikaner
Running by Society of Murli Singh Yadav Memorial
Prashikshan Sansthan, Udairamsar, Bikaner (Raj.)
through its Secretary Kuldeep Yadav S/o Manmohan
Singh Yadav, Aged 43 years, Resident of Karni Coach,
Udairamsar, District Bikaner (Rajasthan).
Respondent/Petitioner
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2. The Western Regional Committee, National Council For
Teachers Education, through its Under Secretary Plot No.
G7, Sector 10, Near National Highway Authority, Dwarka,
New Delhi.
----Respondent
(5) D. B. Civil Special Appeal (Writ) No. 143/2022
In
S.B. Civil Writ Petition No. 9640/2021
State of Rajasthan, through Director, Elementary Education,
Education Directorate, Bikaner.
----Appellant/Respondent
Versus
1. Murli Singh Yadav Memorial Prashikshan Sansthan,
Udairamsar, Bikaner Running by Society of Murli Singh
Yadav Memorial Prashikshan Sansthan, Udairamsar,
Bikaner (Raj.) through its Secretary, Shri Kuldeep Yadav
S/o Manmohan Singh Yadav, Aged 43 years, Resident of
Karni Coach, Udairamsar, District Bikaner (Raj.).
Respondent/Petitioner
2. The Western Regional Committee, National Council For
Teachers Education through its Under Secretary, Plot No.
G7, Sector 10, Near National Highway Authority, Dwarka,
New Delhi.
----Respondent
(6) D. B. Civil Special Appeal (Writ) No. 147/2022
In
S.B. Civil Writ Petition No. 9586/2021
State of Rajasthan, through Director, Elementary
Education, Education Directorate, Bikaner.
----Appellant/Respondent
Versus
1. Vivekanand Vidya Ashram Teacher Training School, Katar
Chhoti, Tehsil Bidasar, Churu (Raj.) Running by Society of
Vivekanand Vidya Ashram Sansthan, Katar Chhoti, Tehsil Bidasar,
Churu (Raj.) through its Secretary Shri Ram Chandra Legha S/o
Shri Laxmanram Aged About 45 years, R/o Katar Chhoti, Tehsil
Bidasar, Chruru (Raj.)
Respondent/Petitioner
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2. The Western Regional Committee, National Council For
Teachers Education through its Under Secretary, Plot No. G7,
Sector 10, Near National Highway Authority, Dwarka, New Delhi.
----Respondent
(7) D. B. Civil Special Appeal (Writ) No. 152/2022
In
S. B. Civil Writ Petition No. 9523/2021
State of Rajasthan, through Director, Elementary Education,
Education Directorate, Bikaner.
----Appellant/Respondent
Versus
1. Balaji Bstc College, Hanumangarh Junction, Running by
Society of Baby Happy Modern Shiksha Samiti,
Hanumangarh Junction (Raj.) through its Secretary, Shri
Ashish Vijay S/o Shri Bhagwan Das Gupta, Aged 35
years, R/o Ward No. 12, Hanumangarh Junction (Raj.).
Respondent/Petitioner
2. The Western Regional Committee, National Council For
Teachers Education, through its Under Secretary, Plot No.
G7, Sector 10, Near National Highway Authority, Dwarka,
New Delhi.
----Respondent
(8) D. B. Civil Special Appeal (Writ) No. 158/2022
In
S. B. Civil Writ Petition No. 9788/2021
State of Rajasthan, through Director, Elementary Education,
Education Directorate, Bikaner
----Appellant/Respondent
Versus
1. Swami Dayanand Shikshan Avam Vikas Sansthan, Plot
No. 101/40 Rawla Road, Village Khajuwala, District
Bikaner through its Secretary Dalip Kumar S/o Shri
Bhoop Ram, Aged 45 years, R/o Village Khajuwala, Tehsil
Khajuwala, District Bikaner (Rajasthan).
Respondent/Petitioner
2. The Western Regional Committee, National Council For
Teachers Education through its Under Secretary, Plot No.
G7, Sector 10, Near National Highway Authority, Dwarka,
New Delhi.
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----Respondents
(9) D. B. Civil Special Appeal (Writ) No. 200/2022
In
S.B. Civil Writ Petition No. 453/2022
State of Rajasthan, through Director, Elementary Education,
Education Directorate, Bikaner.
----Appellant/Respondent
Versus
1. Om College of Education, Plot No. 1147, 1147/1325,
Village Milakpur, Post Manchal, Behror, District Alwar Run
and Managed by Om Shiksha Samiti, Milakpur, Post
Manchal, Behror, District Alwar through its Secretary
Avinash Yadav S/o Omprakash Yadav, aged 53 years,
Resident of Ward No. 01, Behror, District Alwar.
Respondent/Petitioner
2. The Western Regional Committee, National Council For
Teachers Education, through its Secretary, Plot No. G7
Sector 10, Near National Highway Authority, Dwarka,
New Delhi.
----Respondent
(10) D. B. Civil Special Appeal (Writ) No. 201/2022
In
S. B. Civil Writ Petition No. 10528/2021
State of Rajasthan, through Director, Elementary Education,
Education Directorate, Bikaner.
----Appellant/Respondent
Versus
1. Shri Krishna Shikshak Prashikshan Mahavidhyalaya, Plot
No 50, Laxmangarh, Jalooki, Bharatpur Running by
Society of Pd. Late Nannuram Jankalyan Sanstha, Nagar,
Bharatpur (Raj.) through its Secretary Shanti Swaroop
Sharma S/o Nannuram Sharma, Aged 61 years, R/o
Behind Bus Stand, Nagar, District Bharatpur (Rajasthan).
Respondent/Petitioner
2. The Western Regional Committee, National Council For
Teachers Education, through its Under Secretary, Plot No.
G7, Sector 10, Near National Highway Authority, Dwarka,
New Delhi.
----Respondent
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(11) D. B. Civil Special Appeal (Writ) No. 205/2022
In
S. B. Civil Writ Petition No. 505/2022
State of Rajasthan, Through Director, Elementary Education,
Education Directorate, Bikaner.
----Appellant/Respondent
Versus
1. Choudhary Teacher Training College, Sangteda, Kotputli,
District Jaipur Run and Managed by Choudhary
Educational Institute, Sangteda, Kotputli, District Jaipur
through its Secretary Santosh W/o Satveer Singh, Aged
36 years, Resident of Village Sangteda, Kotputli, District
Jaipur.
Respondent/Petitioner
2. The Western Regional Committee, National Council For
Teachers Education, through its Under Secretary, Plot
No.G7, Sector 10, Near National Highway Authority,
Dwarka, New Delhi.
----Respondent
(12) D. B. Civil Special Appeal (Writ) No. 206/2022
In
S. B. Civil Writ Petition No. 503/2022
State of Rajasthan, through Director, Elementary Education,
Education Directorate, Bikaner.
----Appellant/Respondent
Versus
1. Ashtha College of Education, Kanwarpura, Kotputli,
District Jaipur Run and Managed by Nav Bharti Seva
Samiti, Kanwarpura, Kotputli, District Jaipur through its
Secretary Mehar Singh Yadav S/o Bhagwan Singh Yadav,
Aged 47 years, Resident of Village Kanwarpura, Tehsil
Kotputli, District Jaipur.
Respondent/Petitioner
2. The Western Regional Committee, National Council For
Teacher Education, through its Under Secretary, Plot No.
G7, Sector 10, Near National Highway Authority, Dwarka,
New Delhi.
----Respondent
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For Appellants : Mr. Pankaj Sharma, Additional
Advocate General assisted by Mr.
Rishi Soni, AAAG.
Mr. Deepak Chandak, AGC.
For Respondents : Mr. C.S. Kotwani Advocate.
Mr. Vivek Shrimali Advocate for NCTE.
Mr. T.C. Sharma Advocate assisted by
mr. Ram chandra Singh Advocate and
Mr. Ashish Gehlot Advocate.
Mr. B.S. Sandhu Advocate with Mr.
Kanishk Singhvi Advocate.
HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE MADAN GOPAL VYAS
Judgment
REPORTABLE
30/08/2022
By the Court:(Per Manindra Mohan Shrivastava, Acting CJ.)
This Judgment shall govern disposal of all the appeals, which have been filed by the State and were heard analogously.
2. These appeals, preferred by the State, arise out of a common order passed by the learned Single Judge in Surender Kaur Memorial College of Higher Education Vs. State of Rajasthan and Others (S.B. Civil Writ Petition No. 2359/2021 and batch of writ petitions decided on 23.10.2021) raising common issues and ventilating grievance against the State. Some of the appeals filed by the State are those where learned Single Judge, relying upon it's lead common order passed in the case of Surender Kaur Memorial College of Higher Education (supra) has disposed off individual petitions granting relief. Since, in all the appeals, common issue arises for consideration, therefore, they are being disposed off by this common judgment.
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(8 of 36) [SAW-244/2022] 3. The respondents-writ petitioners in this batch of appeals set up infrastructure to commence/continue B.Ed./D.El.Ed./STC Course in their respective institutions. As
grant of recognition to such institutions is admittedly governed and regulated by the National Council for Teacher Education Act, 1993 (for short 'the NCTE Act of 1993') and regulations framed thereunder namely, the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2014 (for short 'the NCTE Regulations of 2014'), the respondents-writ petitioners moved applications for grant of recognition before the competent authority under the provisions of the NCTE Act of 1993 and the NCTE Regulations of 2014. Their applications were processed and finally, National Council for Teacher Education (for short 'the NCTE'), after scrutinising eligibility criteria, issued Letters of Intent (LoI) to respective respondents-writ petitioners.
4. However, when the respective respondents-writ petitioners approached the State and the concerned University for granting staff approval, as required under the NCTE Regulations of 2014, the State/University concerned did not accord necessary approval. The respondents-writ petitioners approached this Court by filing writ petitions seeking issuance of appropriate directions in the nature of Mandamus to the affiliating bodies to conduct inspection and grant staff approval.
5. Learned Single Judge vide common order, as stated above as also the orders passed in individual cases relying upon common order passed in the case of Surender Kaur Memorial College of Higher Education (supra), allowed the writ petitions with direction to the affiliating authority, namely, the State of (Downloaded on 31/08/2022 at 09:48:26 PM) (9 of 36) [SAW-244/2022] Rajasthan or the University, as the case may be, to carry out the exercise of granting staff approval in a time bound manner, though after being satisfied about the norms set by the NCTE/competent authority in that regard with a further direction to communicate acceptance or rejection to all concerned. The State, being aggrieved by the said directions of the learned Single Judge, has filed these appeals assailing the correctness and validity of such directions issued by the learned Single Judge in all the cases.
6. Learned Additional Advocate General appearing on behalf of the appellant-State would argue that even though the learned Single Judge did not interfere with the policy (guidelines) dated 20.07.2021, by which School Education Department of the State Government has decided not to grant NOC, yet proceeded to hold that once No Objection Certificate (NOC)/LoI to an institution has been issued by the NCTE/Regional Committee, the policy decision, which has been taken on 20.07.2021, cannot be made applicable to the cases of the respondents-writ petitioners whose applications for grant of recognition have reached at the final or advanced stage. He would argue that finding of the learned Single Judge that the guidelines could not be applied retrospectively is erroneous in law. Learned Additional Advocate General would contend that the policy dated 20.07.2021, in clear terms, stated that as there are adequate number of institutions already existing and operating in the State for granting Diploma in Elementary Education and Diploma in Physical Education for the Session 2020- 21 and subsequent Sessions, it would no longer recommend or grant No Objection Certificate for opening of new courses. For the same reason, the State also took a policy decision that no (Downloaded on 31/08/2022 at 09:48:26 PM) (10 of 36) [SAW-244/2022] recognition would be granted, nor any No Objection Certificate would be issued to private educational institutions, who have submitted their applications earlier.
It is the submission of learned Additional Advocate General that the State has an important role, which is clearly recognised under the scheme of the NCTE Act of 1993 as also the NCTE Regulations of 2014 whereunder the State has all the authority to take policy decision to grant or not to grant NOC to proposal for establishing new institutions whether such applications have been made earlier, including those applications which have been submitted after issuance of policy dated 20.07.2021. Learned Additional Advocate General highlighted that the State is in the best position to judge whether or not adequate number of educational institutions are available in the State for providing Diploma in Elementary Education and Diploma in Physical Education. The State, based on its own data and information collected through its agencies, has taken a conscious decision that as there are sufficient number of educational institutions running courses in D.El.Ed. and D.Ph.Ed. in the State, looking to availability of such degree holders, employment opportunities, it found that it is no longer necessary, at this stage, to keep on granting NOCs for establishing new institutions whether they have been granted LoIs on the basis of applications filed prior to policy decision or after the policy decision.
7. Learned Additional Advocate General reiterated appellants' stand taken before the learned Single Judge and referring to policy dated 20.07.2021, submitted that the State had already communicated its policy decision to the NCTE. Even (Downloaded on 31/08/2022 at 09:48:26 PM) (11 of 36) [SAW-244/2022] thereafter, the NCTE has been issuing Letters of Intent and recognition letters in favour of private educational institutions. Consistent with its policy decision, therefore, the State Government has decided not to grant staff approval/new recognition/proposal for enhancement of intake capacity and on that basis, it decided not to allow all such private educational institutions to participate in the counseling for admission in D.El.Ed. Courses, which had been proposed by the respondents- private institutions. He would further highlight that the State had earlier granted NOCs to the respective institutions-writ petitioners for particular year of 2019-20 only when the State had opened the windows for the institutions. However, by the time, the NCTE processed those applications, issued LoIs and when an occasion reached to grant staff approval, the State has now taken a policy decision on 20.07.2021 for the reasons stated in the policy decision itself. He would further submit that once, on the basis of information collected by the State, it is found that sufficient number of institutions are already in operation, there is no scope or requirement of any other private institution. On such relevant and valid considerations, the decision of the State could not be faulted. It is within the authority of the State to regulate number of institutions with a view to ensure that quality education imparted by the institutions situated in the State is not compromised. He would further submit that the respondents-writ petitioners have failed to satisfy the Court by placing appropriate document that the State had granted NOCs in terms of Regulation 5(3) of the NCTE Regulations of 2014, yet relief has been granted to all the writ petitioners on such assumption of State having (Downloaded on 31/08/2022 at 09:48:26 PM) (12 of 36) [SAW-244/2022] granted NOCs. He would further submit that the Hon'ble Supreme Court in various decisions has discussed the role of the State to keep check on mushrooming growth of educational institutions and it has been succinctly held that the State has a definite role to play in the matter of establishment of new educational institutions even though the NCTE is the competent authority to grant recognition for opening of new courses/training and/or to grant permission for increase in intake capacity. In support of his contentions, learned Additional Advocate General has relied upon the judgments of the Hon'ble Supreme Court in the cases of St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education and Another, (2003) 3 SCC 321; Government of A.P. and Another Vs. J.B. Educational Society and Another, (2005) 3 SCC 212; National Council for Teacher Education and Others Vs. Shri Shyam Shiksha Prashikshan Sansthan and Others, (2011) 3 SCC 238 and A.P.J. Abdul Kalam Technological University and Another Vs. Jai Bharath College of Management and Engineering Technology and Others, (2021) 2 SCC 564.
8. Per contra, learned counsel appearing for the respective respondents-writ petitioners made almost common submissions in reply to the contentions raised by learned Additional Advocate General and supporting the orders passed by the learned Single Judge and argued that in the case of all the respondents-writ petitioners, Letters of Intent (LoIs) have already been issued to them after scrutiny of their eligibility criteria, infrastructure availability and other required conditions on each and every aspect, entitling them for grant of recognition by the NCTE. The (Downloaded on 31/08/2022 at 09:48:26 PM) (13 of 36) [SAW-244/2022] respondents-writ petitioners, towards fulfillment of various eligibility criteria, have altered their position. It was common submission of learned counsel for respective respondents-writ petitioners that the finding of the learned Single Judge that the policy decision dated 20.07.2021 could not be made a basis to refuse to grant NOC even in those cases where Letters of Intent had already been issued by the NCTE, is in accordance with law, as the effect of applying the policy decision not only to those, who intend to move application for grant of recognition to the NCTE after 20.07.2021, but to the respondents-writ petitioners, in whose cases when the ban was not operative by the State itself, NOCs were granted at earlier stages of processing of the applications followed by issuance of Letters of Intent by the NCTE, would amount to application of the policy decision retrospectively. It is only at a later stage, when the State was required to grant approval for staff, the State has sought to apply its policy to all pending cases where Letters of Intent had been issued by the NCTE and, therefore, in essence, the policy is sought to be made effective retrospectively.
9. On a larger canvass, learned counsel for the respondents would argue that even otherwise, in view of the series of decisions rendered by the Hon'ble Supreme Court, it has been very well settled that the State has a limited role to play and the entire field in the matter of grant of recognition is occupied by central legislation, i.e., the NCTE Act of 1993 and the regulations framed thereunder from time to time. The State, it is contended, can only send its views recommending/rejecting of applications to the NCTE under the statutory scheme, which is not binding on the (Downloaded on 31/08/2022 at 09:48:26 PM) (14 of 36) [SAW-244/2022] NCTE. Present is not a case where the NCTE having accepted the State's recommendations, has either refused to grant LoIs or subsequently withdrawn LoIs issued in favour of the respective institutions. Therefore, the State could not withhold staff approval in the garb of policy decision dated 20.07.2021, much less apply it retrospectively. It has also been contended that Letters of Intent were issued by the NCTE prior to policy decision dated 20.07.2021. It is also submitted that the provisions of the NCTE Regulations of 2014 clearly show that the applications are processed at the NCTE level and LoI is granted only when at initial stage, NOC is granted by the State. Therefore, it is not within the authority of the State to withhold staff approval as such power is not reserved in favour of the State either under the scheme of the NCTE Act of 1993 or under the NCTE Regulations of 2014. To buttress this submission, learned counsel for the respondents have referred to the various provisions of the NCTE Regulations of 2014. None of the provisions contained in the NCTE Regulations of 2014 anywhere contemplate that the applications would be treated as rejected after the cut off date but on the other hand, as held by the Hon'ble Supreme Court in the case of Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of Uttar Pradesh and Others, (2013) 2 SCC 617, recognition could always be granted in the next academic year. Further relying upon the judgment of the Hon'ble Supreme Court in the case of National Council for Teacher Education and Others Vs. Shri Shyam Shiksha Prashikshan Sansthan and Others (supra), it has been contended that even after refusal by the State, it is within the authority of the NCTE to grant recognition as the NCTE is not (Downloaded on 31/08/2022 at 09:48:26 PM) (15 of 36) [SAW-244/2022] bound by the recommendations of the State. Reliance has also been placed on the decisions of the Hon'ble Supreme Court in the cases of Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of Uttar Pradesh and Others (supra) as also State of Rajasthan Vs. LBS B.Ed. College and Others, (2016) 16 SCC
110. Reliance has also been placed on the decision of Single Bench of this Court at Principal Seat Jodhpur in the case of Smt. Dhapubai BSTC College Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No. 13291/2020 and batch of petitions decided on 23.10.2021). Heavy reliance has been placed on the decisions of the Hon'ble Supreme Court in the cases of State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Others, (2006) 9 SCC 1 and St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education and Another (supra), wherein the Hon'ble Supreme has settled the legal position with regard to the role of the State in the matter of recognition of teachers training and education courses governed by the NCTE Act of 1993 and the regulations framed thereunder. Therefore, State's action of withholding of staff approval, that too in respect of those to whom LoIs had already been granted prior to policy decision dated 20.07.2021, has been rightly held illegal by the learned Single Judge.
Learned counsel for the respondents relied upon decisions of Single Bench of this Court in the cases of Sanskar T.T. College Vs. State of Rajasthan & Others (S. B. Civil Misc. Writ Petition No. 679/2017 and batch of petitions decided on 07.02.2017) and B.D.M.L. Shikshan Sansthan Vs. (Downloaded on 31/08/2022 at 09:48:26 PM) (16 of 36) [SAW-244/2022] The State of Rajasthan & Others (S. B. Civil Writ Petition No. 1712/2021 and batch of petitions decided on 06.10.2021) as also decisions of Delhi High Court in the cases of Om College of Education Vs. National Council for Teacher Education & Others (W.P.(C) No. 2069/2021 along with one another writ petition decided on 16.07.2021) and Shri Ram College of Education Vs. National Council for Teacher Education & Others (W.P.(C) No. 6392/2021 and batch of petitions decided on 12.08.2021).
10. We have heard learned counsel for the respective parties, perused the record as also decisions cited at the bar by learned counsel for the respective parties and the common judgment and individual orders passed by the learned Single Judge in respect of writ petitions, which have given rise to these appeals at the instance of the State.
11. Learned Single Judge, though did not decide the issue of validity of the policy decision, leaving it open, proceeded to decide the cases on the aspect as to whether the policy decision dated 20.07.2021 could be applied to the cases before it. Indisputably, all the respondents-writ petitioners are those, who had applied for grant of recognition and after processing of their applications, the NCTE issued Letters of Intent prior to policy decision dated 20.07.2021. In this regard it was held by the learned Single Judge in common order dated 23.10.2021 passed in the case of Surender Kaur Memorial College of Higher Education (supra) as under:
"25. Indisputably, the decision has been taken by the state on 20.07.2021, whereas applications of all the institutions involving present batch of cases, (Downloaded on 31/08/2022 at 09:48:26 PM) (17 of 36) [SAW-244/2022] were not only filed prior thereto but even the letters of intent have been issued by the NCTE and their applications for recognition have reached the stage of grant of staff approval under Regulation No.7(13) of the Regulations of 2014."
12. Learned Single Judge was of the view that once an application has been field by an institution with NOC, the NCTE Regulations of 2014 do not envisage any further NOC and the role of the State is limited. Learned Single Jude went on holding that if LoI has been issued in favour of an institution, the State has to ensure that staff or faculty appointed by an institution is as per norms, relying upon Regulation 7 (13) of the NCTE Regulations of 2014 that the institution is required to submit a list of faculty duly approved by the affiliating body, to the Regional Committee.
In para 26 of the aforesaid order, learned Single Judge also held that it is not within the authority of the State or University or the affiliating body to refuse to conduct staff approval on account of the fact that there are sufficient number of institutions/colleges operating in the State, at least when Letter of Intent has been issued to an institution by the NCTE.
13. Learned Single Judge also examined the State's contention whether it has the power to restrict the number of institutions coming up in the State and if yes, what is the stage. Referring to the provisions contained in Regulation 5(e) and 5(f) of the Regulations in force prior to coming into force the NCTE Regulations of 2014 as also Regulation 5, sub-clause (3) of the NCTE Regulations of 2014, it has been held that neither earlier Regulations, nor Regulations of 2014 give such a power to the State to restrict the number of institutions. Learned Single Judge also referred to judgment of the Hon'ble Supreme Court in the (Downloaded on 31/08/2022 at 09:48:26 PM) (18 of 36) [SAW-244/2022] case of St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education and Another (supra), particularly the observations with reference to guidelines dated 02.02.1996 issued by the NCTE regarding grant of NOC and held that the State could raise an objection and recommend to restrict the number of private colleges/institutions if the circumstances so warrant at the stage of issuing NOC as required under Regulation 5(3) of the NCTE Regulations of 2014, but once NOC to an institution has been issued, it is at a later stage when the policy decision, which has been taken subsequently on 20.07.2021, cannot be made applicable to the cases of the respondents-writ petitioners whose applications for recognition have reached at final or advanced stage of issuance of Letters of Intent by the NCTE/Regional Committee.
It has also been held that institutions, which have created infrastructure for establishing the colleges and more particularly, the institutions in whose favour Letters of Intent have been issued by the NCTE, cannot be deprived of their rights of running a teacher education programme and admit students, if they otherwise fulfill requisite eligibility criteria, of course, once recognition has been granted.
14. The National Council for Teacher Education Act, 1993 (Act No. 73 of 1993) was enacted by the Parliament and amended from time to time to provide for the establishment of a National Council for Teacher Education with a view to achieve 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 including (Downloaded on 31/08/2022 at 09:48:26 PM) (19 of 36) [SAW-244/2022] qualifications of school teachers and for matters connected therewith. Section 3 thereof provides for establishment of the Council. Chapter III of the NCTE Act of 1993 makes provisions regarding functions of the Council. Section 12 of the NCTE Act of 1993 provides that it shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co- ordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purpose of performing its functions under the NCTE Act of 1993, the Council may:
"(a) undertake surveys and studies relating to various aspects of teacher education and publish the result thereof;
(b) make recommendations to the Central and State Government, Universities, University Grants Commission and recognised institutions in the matter of preparation of suitable plans and programmes in the field of teacher education;
(c) co-ordinate and monitor teacher education and its development in the country;
(d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher *** in recognised institutions; (e) lay down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum;
(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;
(g) lay down standards in respect of examinations leading to teacher education qualifications, criteria for admission to such examinations and schemes of courses or training;
(h) lay down guidelines regarding tuition fees and other fees chargeable by recognised institutions;
(i) promote and conduct innovation and research in various areas of teacher education and disseminate the results thereof;
(j) examine and review periodically the implementation of the norms, guidelines and (Downloaded on 31/08/2022 at 09:48:26 PM) (20 of 36) [SAW-244/2022] standards laid down by the Council, and to suitably advise the recognised institutions;
(k) evolve suitable performance appraisal system, norms and mechanisms for enforcing accountability on recognised institutions;
(l) formulate schemes for various levels of teacher education and identify recognised institutions and set up new institutions for teacher development programmes;
(m) take all necessary steps to prevent commercialisation of teacher education; and
(n) perform such other functions as may be entrusted to it by the Central Government."
15. Clause (f) of Section 12 of the NCTE Act of 1993 makes it clear that it is the Council, which is empowered under the law to lay down the guidelines for compliance by recognised institutions, for starting new courses or training and for providing physical and instructional facilities, staffing patter and staff qualification. Section 12A of the NCTE Act of 1993 confers power on the Council to determine minimum standards of education of school teachers. Section 13 of the NCTE Act of 1993 provides for inspection.
16. Chapter IV of the NCTE Act of 1993 makes provisions with regard to recognition of teacher education institutions. While Section 14 of the NCTE Act of 1993 makes elaborate provision with regard to power of recognition of institution offering courses of training in teacher education, Section 15 of the NCTE Act of 1993 provides for permission for a new course or training by recognised institution.
17. Chapter VII of the NCTE Act of 1993 contains miscellaneous provisions. Section 27 of the NCTE Act of 1993 provides for delegation of powers and functions. Section 29 of the NCTE Act of 1993 provides that the Council shall, in the discharge of its functions and duties under the Act, be bound by such directions on questions of policy as the Central Government may (Downloaded on 31/08/2022 at 09:48:26 PM) (21 of 36) [SAW-244/2022] give in writing to it from time to time and that the decision of the Central Government as to whether the question is one of policy or not shall be final.
18. Section 31 of the NCTE Act of 1993 confers power on the Central Government to make rules to carry out the provisions of the Act. Section 32 of the NCTE Act of 1993 confers power on the Council to make regulations not inconsistent with the provisions of the Act and the rules made thereunder, generally to carry out the provisions of the Act.
19. In exercise of powers under Section 32 of the NCTE Act of 1993, the Council earlier framed the regulations known as National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2009, which were subsequently repealed and substituted by new regulations vide notification dated 28.11.2014, called the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2014. Elaborate provisions have been made in the NCTE Regulations of 2014 with regard to applicability, eligibility, manner of making application and time limit, facilities, process of application, conditions for grant of recognition, norms and standards, financial management, academic calendars as also the power to relax.
20. Regulation 7 of the NCTE Regulations of 2014, which deals with processing of applications, provides as below:
"7. Processing of applications.-- (1) In case an application is not complete, or requisite documents are not attached with the application, the application shall be treated : incomplete and rejected, and application fees paid shall be forfeited.
(2) The application shall be summarily rejected under one or more of the following circumstance--(Downloaded on 31/08/2022 at 09:48:26 PM)
(22 of 36) [SAW-244/2022]
(a) failure to furnish the application fee, as prescribed under rule 9 of the National Council for Teacher Education Rules, 1997 on or before the date of submission of online application;
(b) failure to submit print out of the applications made online alongwith the land documents as required under sub-regulation (4) of Regulation 5 within fifteen days of the submission of the online application (3) Furnishing any false information or concealment of facts in the application, which may have bearing on the decision making process or the decision pertaining to grant of recognition, shall result in refusal of recognition of the institution besides other legal action against its management. The order of refusal of recognition shall be passed after giving reasonable opportunity through a show cause notice to the institution.
(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. (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) lf 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 thirty 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.(Downloaded on 31/08/2022 at 09:48:26 PM)
(23 of 36) [SAW-244/2022] (7) After consideration of the recommendation of the State Government or on its own merits, the Regional Committee concerned shall decide that institution shall be inspected by a team of experts called visiting team with a view to assess the level of preparedness of the institution to commence the course. In case of open and distance learning programmes, sampled study centres shall be inspected. Inspection shall not be subject to the consent of the institution, rather the decision of the Regional Committee to cause the inspection shall be communicated to the institution with the direction that the inspection shall be caused on any day after ten days from the date of communication by the Regional Office. The Regional Committee shall ensure that inspection is conducted ordinarily within thirty days from the date of its communication to the institution. The institution shall be required to provide details about the infrastructure and other preparedness on the specified proforma available on the website of the Council to the visiting team at the time of inspection along with building completion certificate issued by the competent civil authority, if not submitted earlier:
Provided that the Regional Committee shall organise such inspections strictly in chronological order of the receipt of application for the cases to be approved by it:
Provided further that the members of the visiting team for inspection shall be decided by the Regional Committee out of the panel of experts approved by the Council and in accordance with the visiting team policy of the Council. (8) At the time of the visit of the team of experts to an institution, the institution concerned shall arrange for the inspection to be videographed in a manner that all important infrastructural and instructional facilities are videographed along with interaction with the management and the faculty, if available at the time of such visit. The visiting teams, as far as possible, shall finalise and courier their reports alongwith the video recordings on the same day:
Provided that the videography should clearly establish the outer view of the building, its surroundings, access road and important infrastructure including classrooms, labs, resource rooms, multipurpose hall, library and others. The visiting team shall ensure that the videography is done in a continuous manner, the final unedited copy of the videography is handed over to them immediately after its recording and its conversion to a CD should be done in the presence of visiting team members:(Downloaded on 31/08/2022 at 09:48:26 PM)
(24 of 36) [SAW-244/2022] Provided further that at the time of inspection for new courses or enhancement of intake of the existing course, the visiting team shall verify the facilities for existing recognized teacher education courses and ascertain the fulfillment and maintenance of regulations and norms and standards for the existing courses as well. (9) The application and the report alongwith the video recordings or CDs of the visiting team shall be placed before the Regional Committee concerned for consideration and appropriate decision. (10) The Regional Committee shall decide grant of recognition or permission to an institution only after satisfying itself that the institution fulfills all the conditions prescribed by the National Council under the Act, rules or regulations, including, the norms and standards laid down for the relevant teacher education programmes, (11) ln the matter of grant of recognition, the Regional Committees shall strictly act within the ambit of the Act, the regulations made thereunder including the norms and standards for various teacher education programmes, and shall not make any relaxation thereto.
(12) The Regional Director, who is the convener of the Regional Committee, while putting up the proposals to the Regional Committee, shall ensure that the correct provisions in the Act, rules or regulations including norms and standards for various teacher education programmes are brought to the notice of the Regional Committee so as to enable the Committee to take appropriate decisions.
(13) The institution concerned shall 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. The letter of intent issued under this clause shall not be notified in the Gazette but 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 shall submit the list of the faculty, as approved by the affiliating body, to the Regional Committee. (14) (i) All the applicant institutions shall launch their own website with hyperlink to the Council and corresponding Regional Office websites soon after the receipt of the letter of intent from the Regional Committee, covering, inter alia, the details of the institution, its location, name of the programme (Downloaded on 31/08/2022 at 09:48:26 PM) (25 of 36) [SAW-244/2022] applied for with intake; availability of physical infrastructure, such as land, building, office, classrooms, and other facilities or amenities;
instructional facilities, such as laboratory and library and the particulars of their proposed teaching faculty and non-teaching staff with photographs, for information of all concerned. The information with regard to the following shall also be made available on the website, namely:-
(a) sanctioned programmes along with annual intake in the institution;
(b) name of faculty and staff in full as mentioned in school certificate along with their qualifications, scale of pay and photograph;
(c) name of faculty members who left or joined during the last quarter;
(d) names of students admitted during the current session along with qualification, percentage of marks in the qualifying examination and in the entrance test, if any, date of admission and such other information;
(e) fee charged from students;
(f) available infrastructural facilities;
(g) facilities added during the last quarter;
(h) number of books in the library, refereed journals subscribed to, and additions, if any, in the last quarter.
(ii) The institution shall be free to post additional relevant information, if it so desires.
(iii) Any false or incomplete information on its website shall render the institution liable for withdrawal of recognition.
(15) The institution concerned, after appointing the requisite faculty or staff as per the provisions of norms and standards of respective programmes, and after fulfilling the conditions under regulation 8, shall formally inform about such appointments to the Regional Committee concerned.
(16) The letter granting approval for the selection or appointment of faculty shall also be provided by the institution to the Regional Committee with the document establishing that the Fixed Deposit Receipts of Endowment Fund and Reserve Fund have been converted into a joint account and after receipt of the said details, the Regional Committee concerned shall issue a formal order of recognition which shall be notified as provided under the Act. (17) In cases, where the Regional Committee, after consideration of the report of the visiting team and other facts on record, is of the opinion that the institution does not fulfill the requirements for starting or conducting the course or for enhancement of intake, after giving an opportunity of being heard to the institution pass an order refusing to allow any further opportunity for (Downloaded on 31/08/2022 at 09:48:26 PM) (26 of 36) [SAW-244/2022] removal of deficiencies or inspection for reasons to be recorded in writing: provided that against the order passed by the Regional Committee, an appeal to the Council may be preferred as provided under section 18 of the Act.
(18) The reports of inspection of the institutions along with the names of the visiting team experts shall be made available on the official website of the Regional Committee concerned after the same have been considered by the Regional Committee. (19) The Regional Committee shall process the application for closure in the manner prescribed for the processing of applications for new programmes or additional programmes or additional intake."
From various provisions contained in the aforesaid regulation, it is clear that after submission of application to the concerned Regional Committee for recognition in the prescribed form along with processing fees and requisite documents in the manner prescribed therein, if it is found that the application is not complete or requisite documents are not attached with the application, the application shall be treated incomplete and rejected and the application fees paid shall be forfeited. It also provides for summary rejection in one or more circumstances, as provided in sub-regulation (2).
Sub-regulation (4) of Regulation 7 of the NCTE Regulations of 2014 provides for written communication along with copy of application form submitted by the institution to the State Government or the Union Territory administration and the affiliating body concerned within 30 days from the receipt of application, in chronological order of the receipt of the application in the Regional Committee.
Sub-regulation (5) of Regulation 7 of the NCTE Regulations of 2014 provides that on receipt of communication, the State Government or the Union Territory administration (Downloaded on 31/08/2022 at 09:48:26 PM) (27 of 36) [SAW-244/2022] concerned shall furnish its recommendation or comments to the Regional Committee concerned within 45 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 the recognition, it shall provide detailed reasons or grounds thereof with necessary statistics, which shall be taken into consideration by Regional Committee concerned while disposing of the application.
Sub-regulation (6) of Regulation 7 of the NCTE Regulations of 2014 provides for consequences where recommendation of the State Government is not received within the stipulated period or within the extended period. Similarly, sub-regulation (7) of Regulation 7 of the NCTE Regulations of 2014 provides that after consideration of the recommendation of the State or on its own merits, the Regional Committee concerned shall decide that institution shall be inspected by the team of experts or a visiting team and every steps to be taken towards consideration in the matter of grant of recognition.
21. After completion of various stages of processing of application as envisaged in sub-regulations (8) to (12), sub- regulation (13) of Regulation 7 of the NCTE Regulations of 2014 provides that the institution concerned shall be informed, through a letter of intent, regarding decision for grant of recognition or permission subject to appointment of qualified faculty members before the commencement of academic session. It further provides that the letter of intent issued shall not be notified in the Gazette but would be sent to the institution and the affiliating body with the request that the process of appointment of qualified (Downloaded on 31/08/2022 at 09:48:26 PM) (28 of 36) [SAW-244/2022] 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 staff or faculty is appointed as per the norms of the NCTE within two months. It further provides that the institution shall submit the list of the faculty, as approved by the affiliating body, to the Regional Committee.
22. A perusal of the aforesaid provisions would clearly show that at the initial stages of processing of application, as provided under sub-regulation (4) of Regulation 7 of the NCTE Regulations of 2014, the State concerned shall furnish its recommendations or comments to the Regional Committee concerned.
At a later stage, as contemplated under sub-regulation (13) of Regulation 7 of the NCTE Regulations of 2014, the affiliating body whether it be the State or the University may approve the list of faculty so that the institution may submit the approved list of faculty to the Regional Committee.
23. Thus, the scheme of the NCTE Act of 1993 and the NCTE Regulations of 2014, which completely keep the entire field occupied in the matter of grant of recognition for opening of institutions covered under the aforesaid provisions, provide for a limited role to be played by the State. Importantly, at the initial stages of process of the application, the State is entitled to sent its recommendations or comments to the Regional Committee concerned within stipulated or extended period. However, the scheme of the NCTE Act of 1993 and the NCTE Regulations of 2014 nowhere provides that any such recommendations or comments of the State shall be binding on the Regional Committee though the Regional Committee is required to take the (Downloaded on 31/08/2022 at 09:48:26 PM) (29 of 36) [SAW-244/2022] same into consideration. The power to grant or not to grant recognition ultimately vests with the Regional Committee of the NCTE as provided in sub-regulation (10) of Regulation 7 of the NCTE Regulations of 2014.
24. It is not the case of the State in these appeals that at the initial stage of processing of the applications, the State had objected to grant of recognition to respondents-institutions. The stage where the State Government has now come out with new policy dated 20.07.2021 is when after due process of application and issuance of LoIs, the State was required to consider approval of the list of faculty as submitted to it by the respondents- institutions, in terms of the provisions contained in sub-regulation (13) of Regulation 7 of the Regulations of 2014.
25. Letter dated 20.07.2021, which is said to be policy decision of the State, states that the State has already communicated its negative recommendations to the NCTE for not granting recognition to new institutions or for increase in intake capacity of existing institutions. However, there is nothing on record to show that acting on such recommendations made by the State Government, a decision has been taken to reject the applications for grant of recognition for opening of private teacher training institutions for conducting courses of Diploma in Elementary Education and Diploma in Physical Education as applied for by the respondents-institutions.
26. It being not in dispute that the policy decision was taken on 20.07.2021, i.e., after Letters of Intent had already been issued in favour of the respondents by the Regional Committee of the NCTE and there being no material on record to show that (Downloaded on 31/08/2022 at 09:48:26 PM) (30 of 36) [SAW-244/2022] because of the recommendations of the State Government in the form of policy dated 20.07.2021, having not been accepted by the NCTE or Regional Committee of the NCTE, the policy of the State at least to the extent of those cases where applications were already filed, obviously processed by following procedure laid down in Regulation 7 including the stage where the State could have made recommendations not to allow opening up new institutions, up to the stage of issuance of Letters of Intent in terms of the provisions contained in the NCTE Regulations of 2014, now, at this stage, the State could not refuse to consider prayer for approval of list of faculty as envisaged in sub-regulation (13) of Regulation 7 of the NCTE Regulations of 2014.
27. Learned Additional Advocate General for the State has placed heavy reliance on the judgment of the Hon'ble Supreme Court in the case of St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education and Another (supra), Government of A.P. and Another Vs. J.B. Educational Society and Another (supra) and National Council for Teacher Education and Others Vs. Shri Shyam Shiksha Prashikshan Sansthan and Others (supra) in respect of stand of the State that the State possesses the power to refuse NOC or to reject the application for grant of said approval.
28. The role of the State Government in the matters of granting recognition under the scheme of the NCTE Act of 1993 framed thereunder was considered by the Hon'ble Supreme Court in the case of State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Others (supra) in the light of constitutional scheme as well as statutory scheme of the (Downloaded on 31/08/2022 at 09:48:26 PM) (31 of 36) [SAW-244/2022] NCTE Act of 1993. The regulations in force at that point of time called the National Council for Teacher Education (Form of Application for Recognition, the Time-limit of Submission of Application, Determination of Norms and Standards for Recognition of Teacher Education Programmes and Permission to Start New Course or Training) Regulations, 1995. Relying upon its earlier decision in the case of St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education and Another (supra) as also Jaya Gokul Educational Trust Vs. Commissioner and Secretary to Government Higher Education Department, (2000) 5 SCC 231; Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust Vs. State of T.N. (1996) 3 SCC 15, State of T.N. Vs. Adhiyaman Educational and Research Institute (1995) 4 SCC 104 and Vidharbha Sikshan Vyawasthapak Mahasangh Vs. State of Maharashtra (1986) 4 SCC 361, it was held as below:
"62. From the above decisions, in our judgment, the law appears to be very well settled. So far as coordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and the State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as the State Legislatures and appropriate Act can be made by the State Legislature subject to limitations and restrictions under the Constitution.
63. In the instant case, admittedly, Parliament has enacted the 1993 Act, which is in force. The Preamble of the Act provides for establishment of National Council for Teacher Education (NCTE) with a view to achieving planned and coordinated development of the teacher-education system (Downloaded on 31/08/2022 at 09:48:26 PM) (32 of 36) [SAW-244/2022] throughout the country, the regulation and proper maintenance of norms and standards in the teacher-education system and for matters connected therewith. With a view to achieving that object, the National Council for Teacher Education has been established at four places by the Central Government. It is thus clear that the field is fully and completely occupied by an Act of Parliament and covered by Entry 66 of List I of Schedule VII. It is, therefore, not open to the State Legislature to encroach upon the said field. Parliament alone could have exercised the power by making appropriate law. In the circumstances, it is not open to State Government to refuse permission relying on a State Act or on "policy consideration".
64. Even otherwise, in our opinion, the High Court was fully justified in negativing the argument of the State Government that permission could be refused by the State Government on "policy consideration". As already observed earlier, policy consideration was negatived by this Court in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust Vs. State of T.N. (1996) 3 SCC 15, as also in Jaya Gokul Educational Trust Vs. Commissioner and Secretary to Government Higher Education Department, (2000) 5 SCC 231.
65. xxxxx
66. xxxxx
67. xxxxx
68. In view of the fact, however, that according to us, the final authority lies with NCTE and we are supported in taking that view by various decisions of this Court, NCTE cannot be deprived of its authority or power in taking an appropriate decision under the Act irrespective of absence of no objection certificate by the State Government/Union Territory. Absence or non-production of NOC by the institution, therefore, was immaterial and irrelevant so far as the power of NCTE is concerned.
74. It is thus clear that the Central Government has considered the subject of secondary education and higher education at the national level. The Act of 1993 also requires Parliament to consider teacher-education system "throughout the country". NCTE, therefore, in our opinion, is expected to deal with applications for establishing new BEd colleges or allowing increase in intake capacity, keeping in view the 1993 Act and planned and coordinated development of teacher-education system in the country. It is neither open to the State Government nor to a university to consider the local conditions or apply "State policy" to refuse such permission. In fact, as held by this Court in cases referred to hereinabove, the State Government has no power (Downloaded on 31/08/2022 at 09:48:26 PM) (33 of 36) [SAW-244/2022] to reject the prayer of an institution or to overrule the decision of NCTE. The action of the State Government, therefore, was contrary to law and has rightly been set aside by the High Court.
75. The decision relied on by Vidharbha Sikshan Vyawasthapak Mahasangh Vs. State of Maharashtra (1986) 4 SCC 361, 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 a 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.
76. xxxxxxxxxx. We may, however, observe that the learned counsel for NCTE, Mr. Raju Ramachandran is right in submitting that the guidelines permitted the State Government to collect necessary data and materials and make them available to NCTE so as to enable NCTE to take an appropriate decision. In accordance with the provisions of the 1993 Act, final decision can be taken only by NCTE and once a decision is taken by NCTE, it has to be implemented by all authorities in the light of the provisions of the Act and the law declared by this Court. It has been so held in St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education and Another, (2003) 3 SCC 321."
29. In the case of National Council for Teacher Education and Others Vs. Shri Shyam Shiksha Prashikshan Sansthan and Others (supra) also, relying upon the decision in the case of State of Maharashtra Vs. Sant Dnyaneshwar (Downloaded on 31/08/2022 at 09:48:26 PM) (34 of 36) [SAW-244/2022] Shikshan Shastra Mahavidyalaya and Others (supra), it was held by the Hon'ble Supreme Court as below:
"40. In State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Others (2006) 9 SCC 1, this Court considered the question whether, after grant of recognition by NCTE, the State Government can refuse to issue no-objection certificate for starting BEd colleges on the premise that a policy decision in that regard had been taken. After adverting to the relevant provisions of the Constitution, the Act and the Regulations and the judgment in St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education and Another, (2003) 3 SCC 321, the Court held that final authority to take decision on the issue of grant of recognition vests with the NCTE and it cannot be denuded of that authority on the ground that the State Government/Union Territory Administration has refused to issue NOC."
In the aforesaid judgment, the Hon'ble Supreme Court has also taken into consideration its earlier decision in the case of Government of A.P. and Another Vs. J.B. Educational Society and Another (supra).
30. Reliance placed by the learned Additional Advocate General on various decisions to buttress his submission that the State has a voice in the matter of grant of recognition even under the scheme of the NCTE Act of 1993 and the regulations framed thereunder from time to time is clearly recognised but at the initial stage of processing of applications as envisaged in sub-regulation (4) of Regulation 7 of the Regulations of 2014. However, in view of the decisions referred to above, it is crystal clear that such recommendations are not binding and the NCTE is empowered under the law to take its own decision in a given case or in cases whether or not State's recommendations should be acted upon.
31. In the present case, policy dated 20.07.2021 has been applied retrospectively denying list of approved staff at a later (Downloaded on 31/08/2022 at 09:48:26 PM) (35 of 36) [SAW-244/2022] stage of processing of applications for grant of recognition without there being any acceptance of recommendations of the State by the NCTE/ its Regional Committee.
32. Reliance placed on the judgment of the Hon'ble Supreme Court in the case of A.P.J. Abdul Kalam Technological University and Another Vs. Jai Bharath College of Management and Engineering Technology and Others (supra) is misplaced in law as in that case, the issue arising for determination by the Hon'ble Supreme Court was whether power of Syndicate to lay down the norms for grant of affiliation when there is absence of statutes of University is ultra vires the 2015 University Act and whether the University can go beyond the AICTE Regulations. It was held that the University/State Government concerned has the power to fix higher eligibility criteria than the minimum prescribed by Central Governing Body/Affiliating Body to achieve the excellence in education.
33. In view of the authoritative pronouncements of the Hon'ble Supreme Court, which have been referred to hereinabove, particularly the decision in the case of State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Others (supra), we do not consider it necessary to burden our decision with other judgments rendered by this Court and other High Courts.
34. Though learned Single Judge has not decided the validity of policy decision dated 20.07.2021, but only decided retrospective applicability aspect, we have referred to various decisions as above, which deal with limited power of the State in the matter of grant of recognition and that a unilateral policy (Downloaded on 31/08/2022 at 09:48:26 PM) (36 of 36) [SAW-244/2022] decision could not be applied retrospectively by the State in the cases of the respondents, leaving open other issues, as observed by learned Single Judge.
35. In view of above considerations and reasons in addition to those, which have been assigned by learned Single Judge to allow the writ petitions, in our considered opinion, the appeals filed by the State are devoid of substance and are, therefore, liable to be dismissed.
36. The appeals are, accordingly, dismissed.
37. The office is directed to place a copy of this judgment on record of each connected appeal.
(MADAN GOPAL VYAS),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ Manoj Narwani/** (Downloaded on 31/08/2022 at 09:48:26 PM) Powered by TCPDF (www.tcpdf.org)