STATE OF MAHARASHTRA v. SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA AND ORS

Citation: [2006] 3 S.C.R. 638

Court: Supreme Court of India

Bench: Y.K. SABHARWAL, C.K. THAKKER, P.K. BALASUBRAMANYAN

Case summary

STATE OF MAHARASHTRA v. SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA AND ORS.pdf

Judgment text

STATE OF MAHARASHTRA v. SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA AND ORS. MARCH 31, 2006 [Y. K. SABHARWAL, CJ. , C. K. THAKKER AND P. K. BALASUBRAMANYAN, JJ. ] • National Council for Teacher Education Act, 1993; Section 14-lnstitution intending to offer a course or training in teacher education-recognition, grant of-State Government taking a policy decision not to grant 'No objection certificate' to any such intending institution--· Held. the subject of planned and coordinated development of the teachereducation system throughout the country, the regulation and proper maintenance of norms and standards in the teacher-education system and matters connected therewith , fullv covered by Entry 66 of List I ofSchedule VII-not .

open to the State legislature to encroach upon the said field as Parliament alone could have exercised the power by making appropriate law and, thus not open to State Government to refuse permission relying on State Act or on 'policy consideration-Entry 66 of List I of Schedule VII of the Constitution of India. Constitution of India 1950; Article 19(1) Clause (g)-Right to practise any profession, or to carry on any occupation, trade or business subject to reasonable restrictions under Article 19(6)-Applications made by colleges to NCTE under 1993 Act and after complying with the provisions ofthe Act-Permission granted by NCTE- State Government ciling a policy decision refi1sed to grant 'No obiection certificate'-Held, the State thereafter could not have interfered with the said decision. Article 21A--Held, would cover primary as well as secondary education.

Maharashatra University Act 1994; STATEOFMAHARASHTRA" SANTDNYANESHWARSHIKSHANSHASTRA MAHAVIDYALAYA 639 Sections 82 and 83-applicability-grant of affiliation to an institution-Held, once recognition has been granted by NCTE under Section 14(6) of the Act, every University ('examining body') is obliged to and sections 82 and 83 ofthe University Act do not apply to such cases-Section 14(6) of the National Council for Teacher Education Act, 1993. The petitioner, a public trust, desired to impart education for B. ED. course. To meet the requirement of infrastructure, library, staffetc. , it spent more than rupees one crore. The petitioner then made an application to SNDT Women's University, Mumbai on October 30, 2004 by paying the requisite affiliation fees. Acopy of the said application was forwarded to the Principal Secretary, Higher and Technical Education, Mantralaya, Mumbai.

An application was also made by the petitioner to NCTE, Western Region Office, Bhopal on December 30, 2003 in the prescribed format for grant ofpermission to start B. ED. college for women in accordance with the provisions of the National Council for Teacher Eduction Act, 1993 (hereinafter referred to as 'the Act') and the National Council for Teacher Education (Norms & Conditions for recognition ofBachelor ofElementary Education) Regulations, 1995 (hereinafter referred to as 'the Regulations'). The Expert Committee of NCTE visited the petitioner's campus on June 6, 2005 and verified the adequacy of infrastructure, staff and other norms. The report was submitted by the Committee to NCTE which approved and granted recognition for B. Ed. College to be opened by the petitioner from academic year 2005-06 with an intake capacity of 100 students.

After receipt of the said letter, the petitioner applied to the Government ofMaharashtra on July 4,2005 for grant ofpermission to start the college and\or inclusion of the name of the college in the Central Admission Process for the year 2005-06. The State Government neither acted on the said letter nor even replied. Under the Maharashtra Universities Act, 1994 (hereinafter referred to as 'the University Act') only after permission from the Government, B. Ed. College can be opened. Since the admission process was to be delayed and the petitioner had undertaken every exercise by getting necessary permission from NCTE and had invested huge amount of more than one crore on development, infrastructure and appointment of staffetc. , it was constrained to approach the High Court by filing a petition for appropriate relief.

An affidavit was filed by the State authorities asserting that the petitioner had to obtain NOC from the State Government The State Government had an important role to play in the process of grant of permission by NCTE. It was stated that the State Government had been assigned an important task ofdevelopment and improvement ofteacher's education and thus it was vitally interested in education and specially in professional courses in the State. Itwas only the State Government which could correctly assess and know the extent of requrirment of trained manpower and 640 SCPREME COURT REPORTS [2006] 3 S. C. R. supply oftrained teachers keeping in view the requirements, change ofoccupation and demand ofsuch teachers.

The input from the State Government through NOC was thus vital for enabling NCTE to exercise its powers and discharge its functions properly and without involvement of the State Government and availability of necessary input by the State Government, NCTE could not grant permission. Being ofthe view that there were sufficient B. Ed. colleges and intake capacity taking into account the need for teachers. A conscious decision was, therefore, taken by the Cabinet Sub-Committee on December 28, 2004 not to grant approval or issue NOC for starting any new institution or to increase intake capacity of existing institutions imparting B. Ed. course for the year 2005-06. In spite of the above decision, NCTE forwarded the recommendation for grant of permission in favour ofcertain institutions. But, as policy decision had been taken by the State Government, the proposal of the petitioner institution for grant of NOC was not forwarded to NCTE.

The State also made a complainy in the affidavit that NCET had not clarified in what circumstances it has issued permissions to the petitioner and other institutions without NOC from the State Government It was, therefore, prayed by the respondent State that its decision was a policy decision which was in consonance with law and the petition was liable to be dismissed. The State had also challenged, by liling Writ Petition No. 6172 of2005, the action of NCTE of granting permission to open new B. Ed. college ignoring the policy decision of the State dated December 28, 2004 praying that the action of NCTE was illegal and unlawful and was liable to be set aside. The NCET also filed a counter before the High Court Relying on various provisions of the Act, NCTE stated that necessary sanction had been granted any i'ICTE and the said decision was legal, valid and in consonance with law.

It was stated that since the final authority for granting such permission was only NCTE under the Act, SNOT University as well as the State Government ought to have respected the order passed by the NCTE by taking consequential actions and that the decision ofthe State Government was not binding upon NCTE and accordingly NCTE had decided to grant permission to open 16 new B. Ed. colleges. 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 ofthe provisions ofthe Act in juxtaposition to the extent oftrained 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 absence of any material being made available by the State Government to NCTE whether 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 -- ' STATEOFMAH:\RASHTRA 1•. SANTDNYANtSHWARSHIKSHANSHASTRAMAHA. VIDYALAYA 64 J 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 The High Court allowed the writ petition filed by the Institutions and dismissed the writ petition of the State Government Hence, these appeals by the state. The appellant\state contended that the policy decision taken by the State Government was in consonance with law and could not have been ignored by NCTE.

It was also submitted that it was within the power and authority of the State to take into account relevant and germane considerations. On a serious consideration, the Cabinet Sub-Committee took a conscious decision that for the year 2005-06, no NOC would be granted to open new B. Ed. colleges. It was also submitted that the Regulations framed and Guidelines issued by NCTE under the Act empowered the State Government to consider certain matters. The legality thereof came to be challenged before this Court in St John Teachers Training Institute and they were held valid. When in exercise of the power conferred by NCTE on the State Government, an action was taken and decision has been arrived at, it is neither open to NCTE nor to a college to question the legality thereof, particularly when the State has taken into consideration planned and combined development of teacher education in the State.

It was also contended that the provisions of the University Act and in particular Sections 82 and 83 would apply when the State grants NOC and NCTE permits new B. Ed. college to be opened or allows increase in intake capacity and the university will act in accordance with the decision of the State and NCTE. In the absence of grant of NOC, a college cannot insist on implementation of provisions of Sections 82 and 83 of the University Act merely on the basis that NCTE had granted permission under the Act. It was finally submitted that even if this Court is of the view that all the submissions made by the State are ill-founded and the decision ofthe High Court does not deserve interference, no permission may be granted to the colleges at least for the year 2005-06 since minimum requirement is presence of 180 days which would be impossible to comply with since B. Ed. Examination is scheduled to be held in March - April 2006.

It was stated that the course is ofone year only after graduation and as such there is no supplementary additional examination for B. Ed. It was contended by the NCTE that it is the final authority and has primary voice in establishing technical educational institutions. The Act has been enacted by Parliament in exercise of power under Entry 66 ofList I ofSchedule VII to the Constitution and the State has no power in such matters. It was also submitted that like the State, University has also no power, authority or jurisdiction to ignore the decision taken by NCET or refuse to take action in pursuance of permission granted by NCTE. Sub-section (6) ofSection 14 of the Act expressly requires university to act in accordance with the decision of NCTE and State Government cannot direct the university nor can university overlook the statutory scheme. It was also submitted that the policy decision of the State Government dated 28th December, 2004 was not legal and valid.

Several aspects and relevant considerations were not kept in mind while taking the said decision. In the circumstances, NCTE was constrained to take an action in consonance with law. A decision was taken by NCTE to grant permission to new B. Ed. colleges which was legal and valid. Regarding Regulations and Guidelines framed by NCTE and the role to be played by the State Government in such cases, it was submitted that it is merely in the nature of supply of necessary data\ materials and is 'consultative' in character. As it may be difficult for NCTE to get necessary information before power is exercised by NCTE one way or the other the State is requested to furnish requisite details. That, however, does not mean that the State can refuse NOC after a decision has been taken by NCTE. Once the State is consulted and it supplied and made available necessary particulars to NCTE as required by it, the function ofthe State comes to an end.

Thereafter it is only for NCTE to take an appropriate decision in accordance with law. On behalf of the various colleges it was contended that the State has no locus standi to challenge the decision of NCTE. The State cannot be said to be "person aggrieved" or "aggrieved party" so as to challenge the decision ofNCT. E. Ifthe decision is against the college, it is only the college which has. 'standing' to impugn the said decision. It was also submitted that under the scheme of'the Constitution, particularly Articles 245, 246, 248 and 254 read with Schedule VII thereof, only Parliament has power ofco-ordination and determination of standards in institutions for higher education or research, scientific and technical institutions. State Legislatures have no authority to enact any law in the field covered by Entry 66 of List I of Schedule VII.

Obviously, therefore, State Government has no authority to take a policy decision in respect ofthe subjects covered by Entry 66 of List I ofSchedule VII for which a specific enactment has been made by Parliament and under the said Act authority has been granted to NCTE to take an action. As to Regulations and Guidelines, it was submitted that under the Act power has been conferred on NCTE. It is, therefore, only NCTE, which can consider the question and take appropriate decision under the Act and it is not open to NCTE to make Regulations or frame Guidelines empowering the State Government to undertake such exercise: The Regulations framed or .... STATEOFMAHARASHTRA11. SANTDNYANESHWARSHIKSHAN SHAS1RA MAHAVIDYALAYA 643 Guidelines made, therefore are not in consonance with the Act and there i5 abdication of power by NCTE in favour ofState Government which is hit by the doctrine of impermissible and excessive delegation.

Regulations permitting such excessive impermissible delegation must be declared inconsistent with the parent Act as also ultra vires and unconstitutional. It was also submitted that so-called policy decision of the State Government is arbitrary and unreasonabl~and would be hit by Clause (g) of Article 19(1) of the Constitution which allows all citizens to have the right to practise any profession, or to carry on any occupation, trade or business, otherwise legal and lawful. Article 19 (6) cannot be invoked by the State as total prohibition to open B. Ed. college can never be said to be in the interest of general public and would not fall within "reasonable restriction" permissible under the said provision. It is also violative of Article 21A as inserted by the Constitution (Eighty-sixth Amendment) Act, 2002.

Over and above constitutional inhibitions, the order dated 28th December, 2004 is arbitrary and unreasonable inasmuch as considerations which weighed with the State Government relating to employment ofB,Ed. teachers were totally irrelevant and extraneous. Taking education and getting employment are two different things. The colleges are not claiming any grant for financial aid from the State, nor do they give any assurance or guarantee to students admitted to B. Ed. college that the State will give them employment. It is therefore not open to the State Government to refuse to grant NOC because the State is not able to give employment to teachers after they get B. Ed. degree. Thus the so-called policy decision of the State Government not to grant NOC to B. Ed colleges is totally irrational. It was also submitted by the respondents that they had made huge investments and ifat this stage they will be refused permission, irreparable injury and loss would be caused to them.

Finally it was submitted that the decision of NCTE is legal, lawful and in consonance with the provisions of the Act as also consistent with the law laid down by this Court in several judgments. Once the action of NCTE is found to be lawful and the decision of the State Government bad, no prejudice should be caused to the institutions. Dismissing the appeals the Court HELD: 1. 1. So far as co-ordination 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 ofList I ofSchedule VU to the Constitution and State has no power to encroach upon the legislative power ofParliament It is only when the subject is covered by Entry 25 of List III ofSchedule VU to the Constitution that there is a concurrent power ofParliament as well as state Legislatures and appropriate Act can be by the State Legislature subject to limitations and restrictions under the Constitution.

The National Council ofTeacher Education Act 1993 enacted by Parliament, provides for establishment ofNational Council for Teacher Education (NCTE) with a view to achieving planned and coordinated development ofthe 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. It is thus clear that the field is fuUy and completely occupied by an Act ofParliament and covered by Entry 66 ofList 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'. [677-C-G] St. John Teachers Training Institute v. Regional Director, NC'TE & Anr. , [2003] 3 SCC 321 : JT (2003) 2 SC 35; State ofTamilnadu & Anr. v.

Adhiyaman Educational & Research Institute & Ors. , [1995] 4 SCC 104: JT (1995) 3 SC 136, Jaya Gokul Educational Trust v. Commissioner & Secretary, Higher Education Department, Thiruvananthapuram, Kera/a State & Anr. , [2000] 5 SCC 231: JT (2000) 5 SC 188 and UP. Stuart v. B. K. RoyChaudhwy, AIR (1939) Cal 628: 43 Cal W. N 913, relied upon. Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v. State of Tamil Nadu & Ors. , [1996] 3 SCC 15: JT (1996) 2 SC 692, referred to. 1. 2. In the case of every institution seeking recognition to start a course or training in teacher education or an existing institution seeking permission to start a new course or training and/or increase in intake, the final authority lies with NCTE and 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 ofNCTE is concerned. Therefore, 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. [678-F-G; 684-B[ Vidharbha Sikshan Vyawasthapak Mahasangh v. State ofMaharashtra & Ors. , (198614 SCC 361, distinguished. 2. 1. It is not necessary to enter into the larger question that it was open to STATEOFMAHARASHTRA •·. SANTDNYANESHWARSHIKSHANSHASTRAMAHAVIDYALAYA 645 the respondents to challenge, for the first time, the constitutional validity of the regulations framed by NCTE, not challenged before the High Court, since they succeeded before the High Court on other points, it was not necessary for them to challenge the vires of Regulations but when the.

State had approached this Court, they can support the judgment on any ground available to them including unconstitutionality of Regulations and Guidelines. [685-A-B] 3. 1. Under clause (g) ofarticle 19 (1), all citizens have the right to practise any profession or to carry on any occupation trade or business, unless they are restrained by imposing reasonable restrictions under Article 19(6). In the instant case, applications had been made by colleges to NCTE under 1993 Act and after complying with the provisions of the Act, permission was granted by NCTE. The C. State thereafter could not have interfered with the said decision. It is also clear that Article 2IA would cover primary as well as secondary education and petitioners could claim benefit of Part III of the Constitution as well. 1685-E, F] 4. 1.

Since the order passed and action taken by NCTE cannot be termed illegal or unlawful, it is not necessary to delve further into the contention of the respondents that they have spent huge amount and incurred substantial expenditure on infrastructure, library, staff, etc. and after satisfying about the necessary requirements oflaw, permission had been granted by NCTE, however if the said action is set aside on the basis of the decision of the State Government, irreparable loss will be caused to them. 1685-G; 686-AI 5. 1. The observations of the High Court that the provisions of Sections 82 and 83 of the Maharashtra University Act are "null and void" could not be said to be correct It appears that what the High Court.

wanted to convey was that the provisions ofSections 82 and 83 would not apply to an institution covered by 1993 Act As per the scheme of the Act, once recognition has been granted by NCTE under Section 14(6) of the Act, every university 'examining body' is obliged to grant affiliation to such institution and sections 82 and 83 of the University Act do not apply to such cases. [686-D; 687-A] 6. 1. Preliminary objection raised by the colleges that the State cannot be said to be 'person aggrieved' and therefore, has no locus standi to challenge the decision ofNCTE, not dealt with, since the matter was decided on merits. 7. 1. It is not possible to grant the prayer of respondent-colleges to allow them to admit students for the year 2005-06 as the academic year 2005-06 is almost over and as such the order passed by NCTE would operate from the next academic year, i. e. from the year 2006-07. 1688-AJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1859 of2006.

- From the Judgment and Order of High Court of Bombay dated 28. 9. 2005 in W. P. No. 6172/2005. WITH Civil Appeal No. 1860 of2006. T. R. Andhyarujina, Raju Ramachandran, Jaideep Gupta, Mukul Rohtagi, R. Venkataramani. Ravindra Keshavrao Adsure, Ms. Aprajita Singh, T. Mahipal, Anantbhushan Kanade, Dharam Bir Raj Vohra, V. K. Rao, Ms. Madhu Sikri, Sanjay Sen, Rana S. Biswas, M. P. S. Chauhan, Nitin Lalwani, Vishal Anand, Ms. Diya D. Disuza, Ms. Sarla Chandra, Shivaji M. Jadhav, Himanshu Gupta, Brij Kishor Sah. Mansih Pitale, Chander Shekhar Ashri, Dhruv Mehta, Ms. Jayashree Wad, Ashish Wad, Neeraj Kumar, Arvind Gupta for M/s. J. S. Wad · & Co. , Sushi! Karanjkar, K. N. Rai, Vinay Navare. Naresh Kumar, M. D. Adkar, Vijay Kumar, Vishwajit Singh, Nitin S. Tambwerkar, B. S. Sai, K. Rajeev, S. U. K. Sagar, Ms. Bina Madhavan, Ms. Pooja N. Gupta for Mis Lawyers Knit & Co. , C. K. Thomas and Ms. Asha G. Nair for the appearing parties. The Judgment of the Court was delivered by C. K. THAKKER, J.

Leave granted. The present appeals are directed against the judgment and order passed by the High Court of judicature at Bombay, on September 28, 2005 in Writ Petition Nos. 6172 of2005, 4769 of2005 and cognate matters. Writ Petition No. 4769 of 2005 was filed by Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya for an appropriate writ, direction or order, quashing and setting aside the order dated December 28, 2004 passed by the State of Maharashtra by which the petitioner was informed that the State of Maharashtra had taken a policy decision not to grant 'No Objection Certificate' ('NOC' for short) to any institution for starting new B. Ed. college for the academic year 2005-06. It was also decided to communicate the said policy decision to the Maharashtra University stating that if necessity will arise in the next year, applications for the institutions would be considered at that time.

A decision was also taken to bring it to the notice of National Council for Teacher Education, Bhopal ('NCTE' for short) that in the State of Maharashtra, there was no need for new B. Ed. trained manpower and hence NCTE should not directly consider any application for grant of permission to start B. Ed. college. In spite of the aforesaid policy decision by the State of Maharashtra, NCTE STATEOFMAHARASHTRA' SANTONYANESKWARSHIKSHANSHASTRAMAHAVIDYALAYA[lllAKKERJ] 647 granted permission to the petitioner institute. The State hence challenged the said action by filing Writ Petition No. 6172 of 2005 contending that the decision of NCTE ignoring the policy decision of the State Government dated December 28, 2004 was not in consonance with law and was liable to be set aside. Both the petitions were heard together by a Division Bench of the High Court.

By a common judgment, the High Court allowed the petition filed by the institution, set aside the order passed by the State Government on December 28, 2004 and issued direction to the State of Maharashtra as well as Maharashtra University to take appropriate consequential actions in accordance with law in the light of the decision taken by NCTE in favour of the institution permitting opening of a new B. Ed. college. Similar directions were issued in favour of other colleges also. To appreciate the contentions raised by the parties to the proceedings, few relevant facts in Writ Petition No. 4769 of 2005 may now be stated. The petitioner is a public trust registered under the Bombay Public Trusts Act, 1950 as also society registered under the Societies Registration Act, 1860. It was the case of the petitioner that it was running a secondary school at village Kondhapuri, Taluk Shirur, District Pune, having a strength of about 150 students.

The petitioner desired to impart education for B. Ed. course. To meet with the requirement of infrastructure, library, staff etc. , it spent more than rupees one crore. The petitioner then made an application to SNOT Women's University, Mumbai on October 30, 2004 by paying the requisite affiliation fees. A copy of the said application was forwarded to the Principal Secretary, Higher and Technical Education, Mantralaya, Mumbai. An application was also made by the petitioner to NCTE, Western Region Office, Bhopal on December 31, 2003 in the prescribed fonnat for grant of permission to start B. Ed. college for women in accordance with the provisions of the National Council for Teacher Education Act, 1993 (hereinafter referred to as 'the Act') ar. d the National Council for Teacher Education (Norn1s & Conditions for recognition of Bachelor of Elementary Education) Regulations, 1995 (hereinafter referred to as 'the Regulations').

The petitioner also deposited the original Fixed Deposit Receipt (FDR) of Rs. 5 lacs towards Endowment Fund. According to the petitioner, the University processed the application of the petitioner for affiliation and forwarded it to the State Government. It was averred in the petition that the application was recommended for the establishment of the proposed B. Ed. college to be opened by the petitioner. 648 SUPRkME COURT REPORTS [2006J 3 S. C. R. NCTE, vide its letter dated February 24, 2005 asked the petitioner whether it was ready for inspection as per the nonns prescribed by the NCTE. Since the petitioner was ready for such inspection by the NCTE, the Expert Committee of NCTE visited the petitioner's campus on June 6, 2005 and verified the adequacy of infrastructure, staff and other norms. The report was submitted by the Committee to NCTE which approved and granted recognition for B. Ed.

college to be opened by the petitioner from academic year 2005-06 with an intake capacity of I00 students. After receipt of the said letter, the petitioner applied to the Government of Maharashtra on July 4, 2005 for grant of pennission to start the college and/or inclusion of the name of the college in the Central Admission Process for the year 2005-06. According to the petitioner, the State Government neither acted on the said letter nor even replied. Under the Maharashtra Universities Act, 1994 (hereinafter referred to as 'the University Act'), only after pennission from the Government, B. Ed. college can be opened. Since the admission process was to be delayed and the petitioner had undertaken every exercise by getting necessary pennission from NCTE and had invested huge amount of more than one crore on development, infrastructure and appointment of staff etc. , it was constrained to approach the High Court by filing a petition for appropriate relief.

An affidavit was filed on behalf of SNDT Women's University stating therein that it did not recommend the case of the petitioner to the State as in tenns of the Prospective Plan for 2002-07, the district-wise allocation for Pune was only one college. It was, therefore, not possible to recommend opening of a new B. Ed. college by the petitioner. An affidavit was also filed by the State authorities, asserting that the petitioner had to obtain NOC from the State Government. According to the respondents 3 and 4, the State Government had an important role to play in the process ofgrant of pennission by NCTE and such role has been recognized by this Court in St. John Teachers Training Institute v. Regional Director, NCTE & Anr. , [2003] 3 SCC 321 : JT (2003) 2 SC 35 .

It was stated that the State Government had been assigned an important task of development and improvement of teacher's education and thus it was vitally interested in education and specially in professional courses in the State. It was only the State Government which could correctly assess and know the extent of requirement of trained manpower and supply of trained teachers keeping in view the requirements, change of occupation and demand of such teachers. The input from the State Government through NOC was thus vital for enabling NCTE to exercise its powers and discharge its functions properly and without STATEOFMAHARASHTRA ,. SANTDNYANESHWARSfl! KSHANSHASTRAMAHAVIDYALAYA [THAKKER,J. ) 649 involvement of the State Government and availability of necessary input by the State Government, NCTE could not grant pennission. It was then stated that there were 216 B. Ed. colleges with an intake capacity ofmore than 20,000 students. Additionally, NCTE had sanctioned 40 new B. Ed.

colleges on the basis of NOC issued by the State Government prior to 2005-06. The State Government had issued NOC to nearly 80 new institutions upto 2004-05. There was, thus, sufficient B. Ed. colleges and intake capacity taking into account the need for teachers. A conscious decision was, therefore, taken by the Cabinet Sub-Committee on December 28, 2004 not to grant approval or issue NOC for starting any new institution or to increase intake capacity of existing institutions imparting B. Ed. course for the year 2005-06. The said decision of the Government was communicated to all the Universities on February 4, 2005 and the Universities were directed to communicate the decision of the Government to institutions concerned. In spite of the above decision, NCTE forwarded the recommendation for grant of penni;;sion in favour of certain institutions.

But, as policy decision had been taken by the State Government, the proposal of the petitioner institution for grant of NOC was not forwarded to NCTE. The State had also made a complaint in th~ affidavit that NCTE had not clarified in what circumstances it has issued pennissions to the petitioner and other institutions without NOC· from the State Government. An additional affidavit was also filed reiterating the decision of the Cabinet Sub-Committee dated December 28, 2004. It was stated that it was also decided to withdraw/cancel NOC which had been issued by the State Government in favour of some institutions. Those institutions, therefore, filed writ petitions and the Division Bench set aside the decision of the State Government by granting liberty to the State to take appropriate action in accordance with law after giving an opportunity of hearing to the petitioners.

The State Government, thereafter, afforded hearing to the institutions, but again it was decided to withdraw/cancel NOC in view of the policy decision of the Government. It was, therefore, prayed by the respondent State that its decision was a policy decision which was in consonance with law and the petition was liable to be dismissed. By filing Writ Petition No. 6172 of 2005, the State had challenged the action of NCTE of granting permission to open new B. Ed. college ignoring the policy decision of the State dated December 28, 2004, praying that the action of NCTE was illegal and unlawful and was liable to be set aside. The NCTE also filed a counter before the High Court. Relying on various provisions of the Act, NCTE stated that necessary sanction had been granted by NCTE and the said decision was legal, valid and in consonance with law.

It was stated that since the final authority for granting such permission was only NCTE under the Act, SNOT University as well as the State Government ought to have respected the order passed by the NCTE by taking consequential actions. It was stated that the State Government never informed NCTE about its general policy not to issue any NOC to new B. Ed. institution for academic year 2005-06 in view of output of existing B. Ed. colleges. It was further stated that NCTE considered the question but decided not to accept the decision ofthe State Government for the reason that the State while taking such decision, did not consider the education policy of the Government of India under Sarv Shikshu Abhiyan which required opening of large number of primary schools and thereafter secondary schools. It also did not take into account preferential needs of hilly and remote areas, requirement of teachers for Science.

Mathematics and English, need of non-formal education of adults, disabled, tribals etc. and did not consider the need of trained teachers who do not seek employment in other institutions but wish to use the training in self employment such as opening of coaching classes, etc. In an additional affidavit. NCTE stated that in the 73rd meeting, the agenda included consideration of letter of the State of Maharashtra dated May 7, 2005 in which it was stated that Government had decided not to issue any NOC for starting new B. Ed. college for the academic year 2005-06. The meeting was held between June 3 & 5, 2005 which was attended by the State representative but as the agenda could not be completed, the meeting continued on June 16 and 17 when State representative was not present.

After considering the policy and views of the Government, the Committee decided that the decision of the State Government was not binding upon NCTE and accordingly NCTE had decided to grant permission to open 16 new B. Ed. colleges. 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 whether the latter can process the application and STATEOFMAHARASHlllA' SANTDNYANESHWARSHIKSHANSHASTRAMAHAVIDYALAYA [THAKKER,J] 65 J ·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 ofthe State Government not to grant NOC would bind NCTE in the light of the provisions of the Act. The High Court considered the material provisions of the Act and the Regulations and the relevant decisions of this Court, particularly in State of Tamilnadu & Anr. v. Adhiyaman Educational & Research Institute & Ors. , [1995] 4 SCC 104: JT (1995) 3 SC 136, Jaya Gokul Educational Trust v. Commissioner & Secretary, Higher Education Department, Thiruvananthapuram, Kera/a State & Anr. , [2000] 5 SCC 231 : JT (2000) 5 SC l 18 and St. John's Teacher's Training Institute, referred to above.

The High Court held that in the light of the relevant provisions of the Act as interpreted by this Court in various decisions, the appropriate authority to take decision regarding opening of new colleges was NCTE and neither the State Government nor the University can act contrary to the decision of NCTE. According to the High Court, under the Act, the only authority which could take a decision regarding opening of new B. Ed. college or increase in intake capacity was NCTE and such decision cannot be ignored either by the State authorities or by the University. So far as the function of the State Government was concerned, the High Court observed that it was in the nature of supply of necessary data and materials so as to enable NCTE to undertake the process of coming to an appropriate decision but the State had no power to decide that it had taken a policy decision not to grant permission to open new B. Ed. college for a particular period.

Such decision was not in accordance with the provisions of the Act nor in consonance with law laid down by this Court. Regarding role of the University, the High Court held that it was p incumbent on the University to take an appropriate decision and consequential action on the basis of decision ofNCTE and the provisions of the University Act required the University to implement such decision. It was, therefore, not open to the University to take any action overlooking the decision of NCTE and relying on a decision of the State Government. In the light of the above findings the High Court allowed the petition filed by the institutions and dismissed the writ petition of the State Government. The High Court, in the operative part, observed as under: "For the reasons stated in the judgment, we direct the Director of Higher Education, Government of Maharashtra to forthwith include the name of the petitioner institute in the list of Central Admission process for the year 2005-2006 B. Ed.

Course consequent to the petitioner being allowed to start B. Ed. college. The University considering Section 14(6) of the National Council for Teaching Education Act, 1993 to grant first time affiliation to the petitioner college to enable the College to admit students. That affiliation would be subject to the petitioner college fulfilling the requirements as required by the University to grant first time affiliation in terms ofthe University Act, Rules and Statute to the extent that has to be complied with. It is made clear that those who have been admitted pursuant to the Central Admission Process are not eligible to apply against the seats now available and admissions already done will not be interfered with and the new seats will be filled in from amongst the candidates still on the merit list, by conducting a special round of admission. Rule made absolute to that extent in Writ Petition No. 4769 of 2005. Rule discharged in Writ Petition No.

6172 of2005 subject to what we have set out in the body of the judgment. " As already stated, NOC had been granted earlier in favour of other colleges by the State Government on the basis of permission granted by NCTE. But it was subsequently withdrawn/cancelled in the light of the policy decision dated December 28. 2004 not to permit any new B. Ed. College to be opened. Those colleges filed petitions which also came to be allowed by the High Court. The State has now approached this Court by filing the p~esent appeals. The matters were placed for admission-hearing before this Court and on October 5, 2005 notice was issued. Stay was also granted against the judgment of the High Court as also the recommendation order passed by NCTE, Bhopal. In the order dated January 6, 2006 it was observed by this Court that the matters require elaborate submissions. The Registry was, therefore, directed to list them on ·a non-miscellaneous day' in the last week of January, 2006.

That is how the matters had been placed before us. We have heard the learned counsel for the parties. Mr. T. R. Andhyarujina, Senior Advocate, appearing for the State contended that the policy decision taken by the State Government was in consonance with law and could not have been ignored by NCTE. It was also STATEOFMAHARASlflRA '· SANTDNYANESHWARSHIKSHANSHASTRAMAHAVIDYALAYA[THAKKER,l] 653 submitted that it was within the power and authority of the State to take into account relevant and germane considerations that as against the demand of about 7,500 teachers per year, at present more than 25,000 teachers are available. The resultant effect is that every year there is excess of teachers to the extent of 18,000. There are more than 250 B. Ed. colleges in the State and if more colleges will be allowed to be opened, there will be unemployment of many more teachers.

The said aspect was seriously considered by the Cabinet Sub Committee and a conscious decision was taken on the basis of demand of teachers in future and it was resolved that for the year 2005-06, no NOC would be granted to open new B. Ed. colleges. Such a decision, submitted Mr. Andhyarujina, by no means can be described as arbitrary, irrational or otherwise unreasonable. It was also submitted that the Regulations framed and Guidelines issued by NCTE under the Act empowered the State Government to consider certain matters. The legality thereof came to be challenged before this Court in St. John Teachers Training Institute and they were held valid. When in exercise of the power conferred by NCTE on the State Government, an action was taken and decision has been arrived at, it is neither open to NCTE nor to a college to question the legality thereof, particularly when the State has taken into consideration planned and combined development of teacher education in the State.

It was also urged that the State kept in mind Prospective Plan for the period 2003-07 and was of the opinion that there should not be imbalance or excess of teachers so as to increase unemployment and unrest. According to Mr. Andhyarujina, the High Court ought to have considered the provisions of the University Act and in particular Sections 82 and 83 thereof in their proper perspective. It is only when the State grants NOC and NCTE permits new B. Ed. college to be opened or allows increase in intake capacity that the above sections will apply and the university will act in accordance with the decision of the State and NCTE. In the absence of grant of NOC, a college cannot insist on implementation of provisions of Sections 82 and 83 of the University Act merely on the basis that NCTE had granted permission under the Act.

It was finally submitted that even if this Court is of the view that all the submissions made by the State are ill-founded and the decision of the High Court does not deserve interference, no permission may be granted to the colleges at least for the year 2005-06 since minimum requirement is presence of 180 days which would be impossible to comply with since B. Ed. Examination is scheduled to be held in March-April, 2006. It was stated that the course is of one year only after graduation and as such there is no supplementary/additional examination for B. Ed. Mr. Raju Ramachandran, learned counsel for NCTE supported the order passed by the High Court. He submitted that NCTE is the final authority and has primary voice in establishing technical educational institutions. According to him, the Act has been enacted by Parliament in exercise of power under Entry 66 of List I of Schedule VII to the Constitution and the State has no power in such matters.

He also submitted that the point is finally concluded by this Court in several cases referred to above. The High Court considered the respective contentions of the parties in the light of the law laid down by this Court and held that it is only NCTE which has final voice and once a decision is taken by that body, neither the State Act nor any authority of State can interfere with such decision. The counsel also submitted that like the State, University has also no power, authority or jurisdiction to ignore the decision taken by NCTE or refuse to take action in pursuance of permission granted by NCTE. Sub-section (6) of Section 14 ofthe Act expressly requires university to act in accordance with the decision ofNCTE and State Government cannot direct the university nor university can overlook the statutory scheme. It was also submitted that the policy decision of the State Government dated 28th December, 2004 was not legal and valid.

Several aspects and relevant considerations were not kept in mind while taking the said decision. In the circumstances, NCTE was constrained to take an action in consonance with law. The matter was discussed in various meetings of NCTE. In the final meeting, the representative of the State was not present. A decision was taken by NCTE to grant permission to new B. Ed. colleges which was legal and valid. Regarding Regulations and Guidelines framed by NCTE and the role to be played by the State Government in such cases, it was submitted that it is merely in the nature of supply of necessary data/materials and is 'consultative' in character. As it may be difficult for NCTE to get necessary information before power is exercised by NCTE one way or the other, the State is requested to furnish requisite details. That, however, does not mean that the State can -refuse NOC after a decision has been taken by NCTE.

Once the State is consulted and it supplied and made available necessary particulars to NCTE as required by it, the function of the State comes to an end. Thereafter it is only for NCTE to take an appropriate decision in accordance with law. Ifsuch decision is otherwise objectionable, the party aggrieved may challenge the same but so far as State is concerned, its role is over as soon as the consultation is over. Mr. Raju, therefore, submitted that the High Court was wholly justified in allowing the petition filed by colleges and in dismissing the writ petition of the State. The learned counsel for various colleges supported Mr. Raju Ramachandran on interpretation and application of the provisions of the Act STATEOFMAHARASHTRA '·SANT DNYANESHWAR SHJKSHAN SHASTRAMAHAVlDYALAYA[THAKKER. J] 655 and final decision of the High Court. They, however, had taken other contentions as well. According to them, the State has no locus standi to challenge the decision of NCTE.

The State cannot be said to be "person aggrieved" or "ag_grieved party" so as to challenge the decision of NCTE. If the decision is against the college, it is only the college which has 'standing' to impugn the said decision. The High Court, therefore, in the submission of the learned counsel for colleges, ought to have dismissed the petition filed by the State as not maintainable without entering into the merits of the matter. It was also submitted that under the scheme of the Constitution, particularly Articles 245, 246, 248 and 254 read with Schedule VII thereof, only Parliament has power of co-ordination and determination of standards in institutions for higher education or research, scientific and technical institutions. State Legislatures have no authority to enact any law in the field covered by Entry 66 of List I of Schedule VII.

Obviously, therefore, State Government has no authority to take a policy decision in respect of the subjects covered by Entry 66 of List I of Schedule VII for which a specific enactment has been made by Parliament and under the said Act authority has been granted to NCTE to take an action. As to. Regulations and Guidelines, it was submitted that under the Act power has been conferred on NCTE. It is, therefore, only NCTE, which can consider the question and take appropriate decision under the Act and it is not open to NCTE to make Regulations or frame Guidelines empowering the State Government to undertake such exercise. According to the counsel, therefore, even if Regulations are framed or Guidelines made, they are not in consonance with the Act and there is abdication of power by NCTE in favour ofState Government which is hit by the doctrine of impermissible and excessive delegation.

Regulations permitting such excessive I impermissible delegation must be declared inconsistent ·with the parent Act as also ultra vires and unconstitutional. The counsel also submitted that so-called policy decision of the State Government is arbitrary and unreasonable and would be hit by Clause (g) of Article 19(1) of the Constitution which allows all citizens to have the right to practise any profession, or to carry on any occupation, trade or business, otherwise legal and lawful. Article 19(6) cannot be invoked by the State as total prohibition to open B. Ed. college can never be said to be in the interest of general public and would not fall within "reasonable restriction" permissible under the said provision. It is also violative of Article 21 A as inserted by the Constitution (Eighty-sixth Amendment) Act; 2002.

Over and above constitutional inhibitions, the order dated 28th December, 2004 is arbitrary and unreasonable inasmuch as considerations which weighed with the State Government relating to employment of B. Ed. teachers were totally irrelevant and extraneous. Taking education and getting employment are two different things. The colleges are not claiming any grant or financial aid from the State, nor do they give any assurance or guarantee to students admitted to B. Ed. colleges that the State will give them employment. It is, therefore, not open to the State Government to refuse to grant NOC because the State is not able to give employment to teachers after they get B. Ed. degree. There are several Arts, Commerce and Science colleges in the State in which students take education and get degrees of B. A. , B. Com. or B. Sc. It is not even the case of the State that all those students got employment at one or the other place.

Thus, the so-called policy decision of the State Government not to grant NOC to B. Ed. colleges is totally irrational. It was also submitted by the respondents that they had made huge investments and if at this stage they will be refused permission, irreparable injury and loss woul_d be caused to them. Finally, it was submitted that since the decision ofNCTE is legal, lawful and in consonance with the provisions of the Act as also consistent with the law laid down by th;s Court in several judgments, the order passed by the High Court deserves to be upheld by allowing the institutions to open B. Ed. colleges from the year 2005-06 as has been done by NCTE. If this Court considers it appropriate, specific direction may be issued to the respondents to conduct extra classes/lectures and to hold supplementary/additional examination. Once the action ofNCTE is found to be lawful and the decision of the State Government bad, no prejudice should be caused to the institutions.

Before we deal with the contentions of the parties, it would be appropriate if we refer to the relevant provisions of law. Part XI of the Constitution deals with relations between Union and States. Chapter I thereof relates to legislative relations and distribution of legislative powers. Article 245 enables Parliament to make laws for the _whole or any part of territory of India. Similarly, a Legislature of a State has power to make laws for the whole or any part of the State. Article 246 provides for distribution of legislative power between Parliament and Legislatures of States and reads thus: ''246. Subject-matter of laws by Parliament and by the legislatures of States:-(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").

(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (I), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the STATE OFMAHARASH1RA ,. SA1''TDNYANESHWARSHJKSHAN SHASTRAMAHAVJDYALAYA[TilAKKERl) 657 Seventh Schedule(in this Constitution referred to as the "Concurrent List"). (3) Subject to clauses (I) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List ll in the Seventh Schedule (in this Constitution referred to as the 'State List'). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List.

" Whereas Article 248 provides for residuary power of Legislature, Article 254 covers cases of inconsistency between laws made by Parliament and by Legislatures of States. Schedule Vll to the Constitution comprises ofthree Lists: (i) Union List, (ii) State List and (iii) Concurrent List. While exclusive power to enact laws lies with Parliament under List I, the power to enact laws under List II is with the State Legislatures. In respect of subjects falling under List 111, it is open to Parliament as well as State Legislatures to enact laws subject to the provisions of Articles 254. Entries 63 to 66 of List I of Schedule VII relate to higher education. Entry 66 which is relevant reads thus: "66. Co-ordination with determination of standards in institutions for higher education or research and scientific and technical intuitions" Entry 11 of List II inter alia included university education.

It was omitted by the Constitution (42nd Amendment) Act, 1976 and became part of Entry 25 of List III (Concurrent List). Entry 25, as originally stood read as under: "25. The vocational and technical training of labour. " After the amendment of 1976, the Entry as it stands now reads thus: "25. Education, including technical education medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour. " - _ ..... The National Council for Teacher Training Act, 1993 has been enacted by Parliament and deals with teacher's education. It came into force with effect from July 1, 1995.

The Preamble of the Act is relevant and reads thus: "An Act to provide for the 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. " Section 2 is definition clause wherein various terms have been defined. "Council" is defined as the National Council for Teacher's Education established under sub-section (1) of Section 3 of the Act. "Institution" has been defined as "an institution which offers courses for training in teacher's ~ducation". "Teacher education" is defined thus: "Teacher education means programmes of education, research or training of persons for equipping them to teach at pre-primary, primary, secondary and senior secondary stages in schools.

and includes nonform al education, part-time education, adult education and correspondence education. " Under that section. "University" means "University defined under clause (f) of Section 2 of the University Grants Commission Act, 1956 and includes an institution deemed to be a University under Section 3 ofthat Act. " Chapter II provides for establishment of Council and Chapter III deals with functions to be performed by the Council. Section 12 imposes duty on the Council to take necessary steps for ensuring planned and co-ordinated development of teacher education and for determination and maintenance of standards for teacher education. The said section is relevant and may be quoted in extenso: "12.

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 detenn ination and maintenance of standards for teacher education and for the purposes of perfom1ing its functions under this Act, 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 Governments, Universities, University Grants Commission and recognized STATEOF MAHARASHTRA , SANTDNYANESHWARSlflKSHANSHASTRAMAHAVIDYALAYA[THAKKER,J] 659 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 schools or 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; (I) Jay down guidelines for compliance by recognised institutions, for starting new courses or training, and for providing physical and instructional facilities, staffing pattern and staff qualifications; (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 ofthe norms, guidelines and standards laid down by the Council, and to suitably advise the recognised institutions; (k) evolve suitable performance appraisal systems, norms and mechanisms for enforcing accountability on recognized institutions; (I) formulate schemes for various levels of teacher education and identify recognized institutions and set up new institutions for teacher development programmes; (m) take all necessary steps to prevent commercialization ofteacher education; and (n) perform such other functions as may be entrusted to it by the Central Government.

" 660 SUPREME GOURT REPORTS [2006] 3 S. C. R. Chapter IV is material and provides for '"Recognition of teacher education institutions. " While Section 14 deals with recognition of intuitions offering course or training in teacher education, Section 15 relates to permission of new courses or training by a recognized institution and they read thus: ·' 14 (I) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations; Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee.

(2) The fee to be paid along with the application under sub-section (I) shall be such as may be prescribed.

(3) On receipt of an application by the Regional Committee from any institution under sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall,- (a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or (b) if it is of the opinion that such institution does not fulfil the requirements laid down in sub-clause (a), pass an order refusing recognition to such institution for reasons to be recorded in writing; Provided that before passing an order under sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a written representation.

(4) Every order granting or refusing recognition to an institution for STATEOFMAHARASHlllA "· SANTDNYANESHWARSIIlKSHAN SHASTRAMAHAYIDYALAYA[TI ection 82. except the second proviso tu sub-section (5) thereof. shall mutatis-mutandis, apply for the permission to open new courses and additional Faculties. The procedure for permission for starting new subjects and additional divisions in the existing colleges and institutions shall be such as may be prescribed by the State Government. from time to time. 6. No student shall be admitted by the college or institution unless the first time affiliation has been granted by the university to the college or institution. 7. The procedure referred to in sub-sections (I) to (4) shall apply. mutatis-mutandis. for the consideration of continuation of affiliation. from time to time.