REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 276 OF 2012
Maa Vaishno Devi Mahila
Mahavidyalaya … Appellant
Versus
State of U.P. & Ors. … Respondents
WITH
Writ Petition (Civil) No. 296 of 2012
Writ Petition (Civil) No. 306 of 2012
Writ Petition (Civil) No. 307 of 2012
Writ Petition (Civil) No. 329 of 2012
Civil Appeal No. 9062 of 2012
(Arising out of SLP (C) No. 24976 of 2012)
Writ Petition (Civil) No. 354 of 2012
Civil Appeal No. 9063 of 2012
(Arising out of SLP(C) No. 25666 of 2012)
Writ Petition (Civil) No. 345 of 2012
Writ Petition (Civil) No. 346 of 2012
Writ Petition (Civil) No. 347 of 2012
Writ Petition (Civil) No. 350 of 2012
Writ Petition (Civil) No. 349 of 2012
Civil Appeal No. 9064 of 2012
(Arising out of SLP(C) No. 21527 of 2012)
Civil Appeal No. 9065 of 2012
(Arising out of SLP(C) No. 21643 of 2012)
Civil Appeal No. 9066 of 2012
(Arising out of SLP(C) No. 21671 of 2012)
Civil Appeal No. 9067 of 2012
(Arising out of SLP(C) No. 21695 of 2012)
Civil Appeal No. 9068 of 2012
(Arising out of SLP(C) No. 21720 of 2012)
Civil Appeal No. 9069 of 2012
(Arising out of SLP(C) No. 21873 of 2012)
Civil Appeal No. 9070 of 2012
(Arising out of SLP(C) No. 21874 of 2012)
Civil Appeal No. 9071 of 2012
(Arising out of SLP(C) No. 21876 of 2012)
Civil Appeal No. 9072 of 2012
(Arising out of SLP(C) 10No. 21877 of 2012)
Civil Appeal No. 9073 of 2012
(Arising out of SLP(C) No. 21878 of 2012)
Civil Appeal No. 9074 of 2012
(Arising out of SLP(C) No. 21881 of 2012)
Civil Appeal No. 9075 of 2012
(Arising out of SLP(C) No. 21882 of 2012)
Civil Appeal No. 9076 of 2012
(Arising out of SLP(C) No. 21890 of 2012)
Civil Appeal No. 9077 of 2012
(Arising out of SLP(C) No. 24959 of 2012)
10Civil Appeal No. 9078 of 2012
(Arising out of SLP(C) No. 22351 of 2012)
Writ Petition (Civil) No. 395 of 2012
Writ Petition (Civil) No. 389 of 2012
Writ Petition (Civil) No. 397 of 2012
J U D G M E N T
Swatanter Kumar, J.
1. Leave granted in all the Special Leave Petitions.
2. In the case of College of Professional Education and Others Vs. State
of Uttar Pradesh [Civil Appeal No.5914 of 2011 decided on 22nd July, 2011],
this Court recorded that
for the academic year 2012-2013 and subsequent
academic years, the institutions and the State Government have arrived at a
broad consensus regarding the procedure and terms and conditions of
admission, recognition and affiliation.
The terms and conditions which
have been agreed and had received the approval of the court were noticed in
great detail in that judgment.
For the academic year 2012-2013 and
subsequent years, the following schedule for admission was provided :
|1. |Publication of Advertisement |01.02.2011 |
|2. |Sale of Application Forms and their |10.02.2012 to |
| |submission |10.03.2012 |
|3. |Date of Entrance Examination |20.04.2012 to |
| | |25.04.2012 |
|4. |Declaration of Result |25.05.2012 to |
| | |30.05.2012 |
|5. |Commencement and completion of counseling|01.06.2012 to |
| | |25.06.2012 |
|6. |Last Date of Admissions after counseling |28.06.2012 |
|7. |Commencement of Academic Session |01.07.2012 |
3. The Court further directed that for the academic year, there would be
only one counseling.
It was to continue for a period of 25 days and was to
be conducted as per the directions contained in the judgment.
Having
provided for the various facets in relation to the manner, procedure and
methodology to be adopted for admissions, the court also provided for the
time by which affiliation should be granted to the colleges for the
relevant academic year.
Clause VI(b) of the judgment which has bearing
upon the matters in issue before us reads as under:-
“(b) After the counseling is over, the concerned University will
continue to allot the candidates from the above mentioned waiting
list against the vacant seats till all the seats in the colleges
are filled up. It is further submitted that the organizing
university will provide students only to the existing B.Ed. College
and all those B.Ed. Colleges which will get affiliation upto dated
07.07.2011 will not be considered for counseling to the year 2011-
12 and for the next consecutive years and onward the colleges which
will be get affiliated on or before 10th of May of that year, would
be considered for counseling.”
4. As is clear, the Court had fixed a cut-off date for affiliation.
The colleges which were affiliated upto 7th July, 2011 only were permitted
to participate in the counseling for the academic year 2011-2012.
For the
next consecutive academic years, the colleges which were permitted to
participate in the counseling were the ones’ which received affiliation on
or before 10th May of that year. In other words, the colleges which did
not receive affiliation by the said cut-off date were not to be included in
the counseling.
5. Some of the colleges in the State of Uttar Pradesh which had not
received affiliation filed writ petitions challenging the order of the
universities declining grant of affiliation to them.
These writ
petitions came to be dismissed by different judgments of the High Court of
Judicature at Allahabad, Lucknow Bench, inter alia, but primarily on the
ground that the court had no jurisdiction to extend the cut-off date as
provided in the judgment of this Court in the case of College of
Professional Education (supra).
6. In 17 special leave petitions, different petitioners have challenged
the judgments of the concerned High Court before this Court.
The
petitioners in 15 writ petitions have approached this Court under Article
32 of the Constitution of India challenging the order of the
university/authorities declining to grant affiliation again in view of the
cut-off date fixed by this Court.
7. These writ petitions and appeals have raised common questions of law
on somewhat different facts. Thus, we propose to dispose of these writ
petitions and appeals by this common judgment. Before we dwell upon the
real controversy arising for consideration of the Court in the present
case, it will be necessary for the court to refer to the facts in some of
the writ petitions/appeals.
Facts
Writ Petition (Civil) No. 276 of 2012
8. It is the case of the petitioner that Maa Vaishno Devi Shiksha
Samiti, a society registered under the provisions of the Societies
Registration Act, 1860 had been imparting education in various disciplines
as main object. In furtherance to its stated objects, the society opened
Maa Vaishno Devi Mahila Mahavidyalaya (for short, the “College”) to conduct
courses in education (B.A., B.Ed.) in the year 2007.
Initially, the
college started with B.A. course and was granted affiliation by Dr. Ram
Manohar Lohia Avadh University (for short, the ‘University’) in accordance
with law. Thereafter, the college intended to conduct B.Ed course for
which it applied for grant of affiliation and recognition to the respective
authorities.
On 24th September, 2010, the National Council for Teacher
Education (for short “NCTE”) granted recognition to the petitioner college
for conducting B.Ed. courses of secondary level of one year with annual
intake for 100 students from the academic session 2010-2011.
9. In furtherance to the request of the College, the University
conducted inspection of the College and thereupon recommended its case to
the State Government.
On 6th July, 2011 the State Government granted
permission to accord temporary affiliation to the petitioner to run B.Ed
classes for one year on self-finance basis for the academic year 2011-2012.
Subsequently,
on 22nd July, 2011, as already noticed, the judgment of this
Court came to be passed in the case of College of Professional Education
and Ors. (supra) fixing the time schedule for grant of affiliation. A
strict timeline was laid down for application, examination, counseling and
admissions with the academic session to begin on 1st July, 2012.
10. Para VI of the judgment dated 22nd July, 2011 does have an element of
ambiguity.
While noticing the submissions and passing appropriate
directions, the court noticed
“it is further submitted that the organizing
university will provide students only to the existing B.Ed. College and all
those B.Ed. colleges which will get affiliation dated 7th July, 2011 will
not be considered for counseling to the year 2011-12 and for the next
consecutive year and onward, the colleges which will get affiliated on or
before 10th of May of that year would be considered for counseling…..”.
It is obvious that there is something amiss prior to the words ‘will not’
appearing immediately after the date of 7th July, 2011.
Obviously, what
the court meant was that the colleges which are affiliated or which will
get affiliation upto 7th July, 2011 are the colleges to which the
organizing university will provide students,
but other colleges which get
affiliation after 7th July, 2011 will not be considered for counseling for
the year 2011-2012.
Furthermore, for subsequent academic years, the
colleges to which the students will be provided would be the colleges which
attain affiliation by 10th May of that year.
That is the spirit of the
directions. Thus, we must read and construe the judgment in that fashion.
11. Reverting to the facts of the present case, the University granted
temporary affiliation to the college for the academic year 2011-12 on 27th
August, 2011 with intake capacity of 100 seats.
The petitioner college
claims that it had got permanent recognition from NCTE for B.Ed. courses.
In face of this, the name of the petitioner college was inducted in the
list of colleges for which the counselling was held by the organizing
university for the academic year 2011-12.
Since the petitioner college
had received temporary affiliation for B.Ed. classes only for one year, it
again approached the University and the State Government for grant of
permanent affiliation for the subsequent academic years and completed all
the formalities as well as requested the authorities to constitute an
Inspection Team as required under the law.
In the meanwhile, the
Department of Higher Education, State of Uttar Pradesh, issued an office
order dated 11th January, 2012 vide which the time schedule for seeking
affiliation as directed by the court was fixed.
The last date for
submission of proposal to the concerned university was 10th March, 2012.
The proposal received was to be forwarded to the Government by the
University latest by 25th March, 2012 and the State Government was required
to grant approval by 10th April, 2012.
This date of 10th April, 2012, in
fact, stood extended upto 10th May, 2012, the date fixed by this Court.
The University constituted a three member team to inspect the college which
submitted its report on 26th February, 2012. The Report is stated to have
been submitted finding that the petitioner was possessed of adequate
building, infrastructure and funds for running the B.Ed. course and
recommended permanent affiliation.
It is the case of the petitioner that
all relevant documents and fees for grant of permanent affiliation were
submitted to the University on 5th March, 2012, i.e., five days prior to
the last date for submission of proposal.
The University took lot of time
and finally on 10th April, 2012, it informed the petitioner that some more
documents were required to be submitted. The petitioner submitted the
required documents on 11th April, 2012. This application was forwarded by
the University to the State Government only on 20th April, 2012 along with
approval in Form ‘A’.
For the academic year 2012-13, the organizing
university had held the Joint Entrance Test for all UP colleges on 23rd
April, 2012. The result of the same was declared and admission and
counseling sessions were scheduled to be held between 7th June, 2012 to
22nd June, 2012.
The petitioner college seriously apprehended that it may
not be able to participate in the counseling for the academic year 2012-
2013 because of the delay caused by the University and the State
Government, particularly keeping in view the cut-off date of 10th May,
fixed by the Court.
Consequently, the petitioner along with others filed
writ petition being Writ Petition (Civil) No. 2417(M/S) of 2012 in the High
Court of Judicature at Allahabad, Lucknow Bench.
This Writ Petition came
to be disposed of by the order of the Court dated 9th May, 2012. The
Court, while noticing the directions of this Court as contained in its
order dated 22nd July, 2011, directed the respondents to consider
petitioner’s case on the basis of their eligibility as required for
affiliation and take decision while expressing the hope that the State
would do its best in the matter.
The petitioner has contended that though
a number of deficiencies were noticed in the other colleges, yet most of
the colleges were granted conditional permission for affiliation giving
time to remove the deficiencies pointed out in the order. Unlike other
colleges, the State Government vide its Order dated 10th May, 2012, had
rejected the application of the petitioner and pointed out various
deficiencies.
The relevant part of the order reads as under:-
“(3) In the sequence of the said orders of the Hon’ble High
Court, Lucknow Bench, Lucknow, after the last date i.e.
25.03.2012 prescribed by the Government, the proposals for
affiliation for B.Ed. course of the referred university were
considered. After due consideration, in the impugned
affiliation proposal the following discrepancies have been
found:-
1. For granting of affiliation, on the University level
the certificate of the committee organized has not been
received.
2. The inspection report of the inspection board and the
details of the area of classes in the letter of the
University have not been mentioned.
3. The boundary walls of the university are not
plastered and the photograph of the boundary walls of only
one side has been received and on the second floor of the
university construction work is partly going on. In front
of the rooms of the second floor railings have not been
constructed due to which a serious accident is possible.
4. The result of B.Ed. has not been received. The
University with the deficiency of the result of examination
has made conditional recommendation on the Format-A.
5. In relation to not being charged with group
cheating/copying the educational session in the report of
the controller of examination is not clear.
6. The fire extinguishing certificate has been issued on
15.02.2009. The certificate till date has not been
received.
7. The NBC has been signed by the Additional
Engineer/Superintending Engineer but the letter umber and
date is not mentioned.
8. The details of payment of monthly salary from the
bank to the teachers are not received. The record of the
months of December 2011 and January and February 2012 has
been made available.
(4) Therefore, in view of the abovementioned discrepancies the
State Government under section 37(2) of the U.P. State
University Act, 1973 (as amended by the U.P. State University
Amendment Act, 2007) at Graduation level has for Maa Vaishno
Devi Women University, Siyaram Nagar, Devrakot, Faizabad under
the Education system has not found it eligible for a prior
permission of affiliation for B.Ed. course with a capacity of
100 seats since under the autonomous scheme from educational
session 2012-2013. In sequence of it the writ petition no.
2417(M/S)/2012 and in others also which are in question, in
compliance to the order dated 09.05.2012 of the Hon’ble High
Court the application of Sh. Chedi Lal Verma, Manager, Maa
Vaishno Devi Women University, Siyaram Nagar, Devrakot, Faizabad
dated 09.05.2012 is accordingly dismissed.”
12. The petitioner has submitted that it removed the objections as
pointed out in the said letter and informed the authorities on 18th May,
2012. On the same very date, the petitioner made a representation to the
State Government stating that objections had been removed and the case of
the petitioner may be considered for affiliation.
No response was
received to the said representation. Being left with no other option, the
petitioner filed another writ petition being WP (M/S) No.3499 of 2011
before the same court praying inter alia that the order dated 10th May,
2012 passed by the State Government be quashed, for issuance of a direction
requiring respondent No. 2 to include the petitioner college in the
counseling for B.Ed. course for the academic year 2012-13 and for direction
that the petitioner college be deemed to have received affiliation,
temporarily at least. This writ petition was finally disposed of by a
Bench of that Court vide its order dated 13th June, 2012. The relevant
part of the order reads as under:-
“The arguments of the learned counsel for the petitioner in view
of the recommendations of the University appears to be correct.
Accordingly, the order dated 10.5.2012 contained in Annexure-1
to the writ petition is hereby set aside. The matter is
remitted back to the State Government to decide it afresh in the
light of the recommendations of the University and the letter of
the institution contained at page 50 subject to their
information available on record and the State Government shall
take a decision, expeditiously, say within a period of ten days’
from the date a certified copy of this order is produced before
it.
Subject to above, the writ petition is finally disposed of.”
13. As is clear from the above direction, the matter was remitted to the
State Government. The order dated 10th May, 2012 was set aside and the
State Government was directed to consider the case afresh. This was
primarily on the basis that according to the petitioner, the University had
recommended the case and had forwarded its approval in Form A showing no
deficiencies. The State Government, without any inspection, had rejected
the request for affiliation and other colleges had been given temporary
affiliation.
14. On the very next day i.e. on 14th June, 2012, the petitioner again
made a representation to the State Government to consider its case in
accordance with the directions of the Court in the order dated 13th June,
2012. Again, vide order dated 21st June, 2012, the State Government
rejected the application of the petitioner. The State Government referred
to the schedule for counseling as well as for grant of affiliation in terms
of the order of this Court dated 22nd July, 2011. The State Government
referred to the Schedule for counseling as well as for grant of affiliation
in terms of order dated 22nd November, 2011. It rejected the application
being beyond the cut-off date of 10th May. It also mentioned in paragraphs
VI of the said order that certain compliances had not been done till that
date by the college and again eight defects of non-compliance were pointed
out in the said order.
15. The petitioner claims to have been seriously prejudiced by the order
dated 21st June, 2012 as it was denied the chance to participate in the
counseling process for the academic year 2012-2013 onwards.
16. To the averred facts there is not much controversy. Primarily, the
respondents have raised two pleas (i) firstly that the deficiencies had not
been removed in their entirety and secondly that the cut-off date fixed by
this Court by its order dated 22nd July, 2011 does not permit the State to
grant affiliation to the petitioner college for the current academic year.
SLP (C) No.21695 of 2012
17. The petitioner is a private unaided institution run by a registered
society namely Aman Educational and Welfare Society. The Society started
the Aman Institution of Education and Management (for short the “College”)
and had applied for grant of recognition for running the B.Ed. course.
The college was inspected and recognition was granted by the NCTE on 30th
September, 2008. The State Government had granted affiliation subject to
fulfillment of conditions stated therein, which amongst others contained a
stipulation that admission of the students shall be made only after
affiliation by the examining body before the commencement of the academic
session and admission shall be completed well before the cut-off date.
For the academic year 2009-2010, the University conducted the inspection on
12th March, 2011 and forwarded its recommendation for grant of permanent
affiliation. Similar recommendations were also made on 7th July, 2011 for
the academic year 2011-2012. The State Government, in view of these
recommendations granted permission for temporary affiliation for one year
with effect from 1st July, 2011 for the academic year 2011-2012. The
students were also provided to the college against the sanctioned 100 seats
for that academic year. The petitioner college had applied for extension
of affiliation for the academic session 2012-2013 and the University had
sent its recommendations to the State Government vide its letter dated 3rd
December, 2011. Vide letter dated 9th April, 2012, respondent No. 1 had
brought out certain deficiencies. On 13th April, 2012, the petitioner
submitted necessary documents. However, again certain deficiencies were
pointed out by the State Government vide its letter dated 18th April, 2012.
The petitioner claims to have removed these deficiencies and intimated
respondent No. 1 vide its letter dated 20th April, 2012. Thereafter the
University had sent its recommendations vide letter dated 9th May, 2012.
According to the petitioner, thereafter the State Government did not point
out any substantive deficiencies and, in fact, no deficiencies. According
to them, though there were no deficiencies, the State Government vide its
letter dated 9th May, 2012 refused to grant affiliation to the petitioner
and pointed out certain deficiencies and informed that the institution was
not found fit for grant of affiliation for 100 seats. The petitioner had
challenged this order of the State Government before the High Court. It
was the case of the petitioner that there were no shortcomings or
deficiencies in the Institute. Furthermore, number of other similarly
placed institutions had been granted permission/affiliation and had been
given time to remove the deficiencies. Thus, the order of the respondent
was arbitrary.
18. It may be noticed that apprehending its exclusion from the
counseling, the petitioner had filed a writ petition being Writ Petition
(M/S) No.2572 of 2012 before the High Court of Judicature at Allahabad,
Lucknow Bench in which vide its order dated 28th May, 2012, the Court had
directed the respondent authorities to consider the case of the petitioner
college afresh. In this order, the court had also noticed “the court
finds that all shortcomings as pointed out by the State Government stand
removed. Therefore, in these circumstances, it is provided that the State
Government may take a fresh decision in light of the present facts and
additional evidence which had been brought on record by the petitioner and
pass fresh orders in accordance with law, within a period of ten days.”
In furtherance to the order of the High Court, the State Government still
persisted with the fact that there were deficiencies in the infrastructure
and other requirements of the petitioner college and while noticing the
deficiencies which were still persisting, the State Government vide letter
dated 11th June, 2012 rejected the application for grant of affiliation.
The following deficiencies were noticed:-
| |Lasted inspection report | |Deficiency is still exists |
|“1.|was not found | |there. |
|2. |Certificate from the Bank | | |
| |for the payment to teachers| | |
| |and details of payment to | | |
| |the remaining teachers | | |
| | | |Certificate of payment of |
| | | |was not provided with the |
| | | |representation |
| | | |Deficiency is still exists.|
|3. |Affidavits and Agreement of| | |
| |the proposed teachers for | | |
| |the year 2008-2009 not | | |
| |provided and for the years | | |
| |2012-2013 | | |
| | | |Deficiency is still exists.|
| | | |Balance sheet of CA is |
| | | |provided |
| | | |Deficiency is still exists |
| | | |Deficiency is still exists |
|4. |Appointment letters of | | |
| |proposal teachers are not | | |
| |provided | | |
| | | |Deficiency is still exists |
|5. |C.A. Balance Sheet for one | | |
| |Year only | | |
|6. |Fire fighting certificate | | |
| |is not mentioned | | |
|7. |Certificate from NCB or | | |
| |equivalent officer | | |
| |(Executive Engineer) | | |
|8. |Affidavit of manager on | | |
| |stamp paper of Rs. 50/- is | | |
| |not mentioned | | |
xxxxx xxxx xxxx xxxx
10. In respect B.Ed. Education course in the Special Leave Petition
bearing no. 13040/2010, titled College of professional Education and
ors vs. UP State and others, Vide order dt. 22.7.2011 passed by the
Hon’ble High Court in the said petition for fixing the time table to
the concerned and fixed last date for permission 10.5.2012, and after
expiry of the aforesaid all the deficiency have to be fulfilled,
otherwise it shall be contempt of the Court.
Therefore in the precept the petitioner Institute, there is no occasion
to provide a chance, if the proposal of the petitioner university
proposed for the year 2013-14 the same can be considered accordingly,
therefore the representation of the petitioner dt. 30.5.2012.
Therefore, the orders in the Writ Petition no. 2972 (MS) 2012 of the
petitioner, Aman Institute of Management and education, Duhai,
Ghaziabad, Vs. UP State, In compliance of order dated 28.5.2012 is
being sent.”
19. The petitioner challenged the legality and correctness of the order
dated 11th June, 2012 before the High Court in Writ Petition (M/S) No. 3607
of 2012. The High Court dismissed the writ petition but made certain
observations which were in favour of the petitioner. The operative part
of the order reads as under:-
“Assuming that the petitioner is qualified to be affiliated,
even then petitioner cannot be granted any indulgence on account
of cut-off date fixed by the apex court i.e. 10.5.2012. This
Court does not have any power to reschedule the time schedule
fixed by the apex court. The petitioner, if is aggrieved by
the said cut-off date, is at liberty to approach the apex court
for clarification and further orders, so that they are able to
convince the apex court regarding their rightful claim.
In the present case, the Court feels that there is no
shortcoming in the petitioner-institution at the moment and the
State Government has acted unmindfully, but it has to be looked
into at this juncture whether the cut-off date can be by-passed.
No such direction is possible at the hands of this 3 Court
and, therefore, any direction in favour of the petitioner will
amount to violating the orders passed by the apex court.
The argument of learned counsel for the petitioner that the
opposite parties themselves have not followed the time schedule
as fixed by the apex court can be looked into and can be gone
into by the apex court. But this Court feels that no such
direction for allocation of students can be issued in favour of
the petitioner at this juncture.
The writ petition is accordingly dismissed.
20. Aggrieved from the said judgment, the college has filed the appeal by
way of special leave.
Writ Petition (Civil) No. 350 of 2012
21. This petition has been filed under Article 32 of the Constitution of
India by three petitioner colleges which are being run and managed by the
Society registered under the Societies Registration Act, 1860. Vide order
dated 24th January, 2007, the NCTE at its 113th Meeting held on 18th/19th
January, 2007 considered the application moved by the first petitioner for
grant of recognition to run B.Ed. courses in the institution and granted
the same. However, in its 141st Meeting, the Northern Regional Committee
(for short “NRC”) refused recognition to the first petitioner vide order
dated 25th January, 2010. This order was subsequently modified upon
appeal by the first petitioner, but without any effective relief. Being
dissatisfied, the first petitioner filed Writ Petition No. 3836 (M/B) of
2010 before the High Court of Judicature at Allahabad. The Court passed
order dated 14th May, 2010, in furtherance to which an inspection was
conducted under Section 17 of the NCTE Act, 1993. Thereafter the first
petitioner filed another Writ Petition No. 7248 of 2010 before the same
court in which vide order dated 20th April, 2011, the Court took note of
the fact that the NCTE had failed to comply with the direction of passing
final order within one month and directed the concerned authorities to
comply with the order dated 14th May, 2010, and required them to explain
their conduct. However, in the meanwhile, this Court passed the order
dated 22nd July, 2011 in the case of the College of Professional Education
(supra) fixing 10th May as the cut-off date for grant of affiliation to
colleges for running of courses for the current academic year. The
petitioner colleges Nos. 1 and 2 got affiliation from the Ram Manohar
Lohiya Avadh University, Faizabad, Uttar Pradesh, in accordance with the
Uttar Pradesh State Universities Act, 1973 (for short, ‘the Universities
Act’). Petitioner No.1 college was accorded affiliation vide order dated
25th August, 2011 for 100 seats in the B.Ed. course for one year. In
furtherance to order of the High Court, the petitioner No.1 was asked to
furnish certain details. The response submitted by Petitioner No.1 was
considered by the NRC of the NCTE in its 190th Meeting and it decided to
restore the recognition for B.Ed. courses with annual intake of 100 seats
in continuation of the previous recognition order dated 24th January, 2007.
Accordingly, the order dated 28th December, 2011, was passed by the NRC of
the NCTE. Thereafter, the respondent-university, vide its letter dated
30th April, 2012 recommended to the State Government for grant of permanent
affiliation to petitioner No. 1 to run the B.Ed. courses. For these
reasons, the petitioner No. 1 claimed that it was entitled to be included
in the Counseling as at that time, they had the recognition as well as the
affiliation. Petitioner Nos.2 and 3 were also placed in similar situation.
However, the State Government on insignificant shortcoming refused the
affiliation to petitioner Nos. 2 and 3 vide order dated 10th May, 2011.
According to the petitioner, certain other colleges similarly placed were
granted affiliation and even included in the list of counseling for the
academic year 2012-2013.
22. The petitioners challenged the non-grant of affiliation by the State
Government to conduct the courses of B.Ed. on account of their non-
inclusion in the Bulletin for Counseling and admission to their colleges.
The petitioners, thus, are aggrieved from non-inclusion in counseling
process as well as non-grant of affiliation on account of the cut-off date
of 10th May of the current academic year.
Writ Petition (Civil) No. 346 of 2012
23. This is also a petition filed under Article 32 of the Constitution of
India. The petitioner is an unaided self-financing institution run by a
registered society named J. Milton Shiksha Samiti. The petitioner college
was granted recognition by the NCTE vide its order dated 14th May, 2008 for
conducting B.Ed. courses for the academic year 2008-2009 whereafter the
petitioner obtained affiliation from Dr. Bhimrao Ambedkar University, U.P.,
Respondent No.2, for that academic year and has been conducting the said
course till the academic year 2011-2012. The respondent No.2-University
granted provisional affiliation to the petitioner for the academic year
2011-2012 vide letter dated 7th July, 2011, subject to fulfillment of
certain conditions. Vide letter dated 21st December, 2011, the petitioner
informed the University (respondent No.2) about fulfillment of the
conditions as required by the letter dated 7th July, 2011 and requested the
University to consider the case of the petitioner for grant of extension of
provisional affiliation or grant of permanent affiliation. For the
academic year 2012-2013, respondent No.3-University conducted Joint
Entrance Test for admission to UP B.Ed. Colleges on 23rd April, 2012.
Counseling was scheduled to be held from 7th June, 2012 to 22nd June, 2012.
As noticed earlier, this Court had passed the order dated 22nd July, 2011
directing the last date for grant of affiliation as 10th May of the
concerned academic year. Vide letter dated 13th June, 2012, respondent
No. 2 University had forwarded the affiliation proposal of the petitioner
to the State Government. Although, the State Government did not pass any
written order rejecting the case of the petitioner, but according to the
petitioner, they were orally informed that their case could not be
processed now for the current academic year in view of the order passed by
this Court.
24. The petitioner filed writ petition being Misc. Single No.4040 of 2012
before the Allahabad High Court. The High Court, vide its order dated
25th July, 2012, directed the respondents to pass fresh order.
25. It is the case of the petitioner that denial of affiliation and
permission to participate in the counseling by the respondent is on account
of the cut-off dates fixed by this Court and, therefore, has approached
this Court under Article 32 of the Constitution of India with the above
prayers.
Writ Petition (Civil) No. 345 of 2012
26. Writ Petition (Civil) No.345/2012 and Writ Petition (Civil) No. 347
of 2012 also has similar facts where the petitioner-college was granted
recognition by the NCTE and had even been granted affiliation for the
academic year 2011-2012. However, its application for extension of
affiliation for the academic year 2012-2013 or grant of permanent
affiliation was not decided and subsequently the petitioner was denied
affiliation and permission to participate in the counseling for the current
academic year 2012-2013 in view of the cut-off date fixed by this Court.
In both these writ petitions, the writ petitioners challenged the action of
the respondents, and their non-inclusion in the list for counseling.
27. It is not necessary for us to note the facts of each case separately
as in all other cases the facts are somewhat similar to either of the writ
petitions, the facts of which we have afore-referred.
28. For regulation and proper maintenance of norms and standards in the
teacher education system and for all matters connected therewith, it was
considered to establish a Central National Council for Teacher Education,
for which purpose the Indian Parliament enacted the National Council for
Teacher Education Act, 1993 (for short, the ‘Act’). The NCTE was to be
established in terms of Section 3 of the Act and was to consist of the
persons specified therein. For the purpose of the present case, we are
required to refer to certain provisions of the Act. The first relevant
provision which can be referred to is Section 12 of the Act which states
the functions that are to be performed by the NCTE. Section 13 places an
obligation upon the NCTE to conduct inspection of the Institute in the
prescribed manner. Other very significant provision is Section 14 that
deals with the recognition of the Institution offering course or training
in teacher education. One of the important powers of the NCTE is the power
of delegated legislation as contained in Section 32 of the Act. We shall
deal with these provisions along with some other relevant provisions in
some detail.
29. Under the Scheme of the Act, in terms of Section 12, it shall be the
duty of the NCTE to take all such steps as it may think fit for ensuring
planned and coordinated development of teacher education, as per the
Preamble of the Act. It has to lay down guidelines for compliance by
recognized institutions for starting new courses of training and for
providing physical and instructional facilities, staffing pattern and staff
qualification amongst others, to examine and review periodically the
implementation of the norms, guidelines and standards laid down by the NCTE
and to suitably advise the recognised institutions and foremost, it must
ensure prevention of commercialization of teacher education. For the
purposes of ascertaining whether the recognised institutions are
functioning in accordance with the provisions of this Act, the Council may
cause inspection of any such institution to be made by such person as it
may direct and in such manner as may be prescribed. A complete procedure
has been provided under Section 13 for conducting inspection of the
institution. After coming into force of the Act, 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 the Act,
make an application to the Regional Committee concerned in such form and in
such manner as may be determined by the Regulations. Section 14(3)(a)
provides the scope and requirement for establishing such institution. The
recognition may be granted to an institution when it has adequate financial
resources, accommodation, library, qualified staff, laboratory and it
fulfills such other conditions required for proper functioning of the
institution for a course or training in teacher education as may be
determined by regulations and upon such conditions as may be imposed. If
an institution does not satisfy the requirements of Section 14(3)(a), the
Council may pass an order refusing recognition to the institution for
reasons to be recorded. Such grant and/or refusal has to be published in
the Official Gazette and communicated in writing to the institution and to
the concerned examining body or the State Government and the Central
Government in accordance with Section 14(4). Section 14(6) will be of some
significance once we deal with the facts of the present case, as it is a
provision providing interlink between recognition of an institution by the
NCTE, on the one hand and affiliation by the examination body, on the
other. Section 14(6) reads as under :
“14(6) Every examining body shall, on receipt of the order
under sub-section (4), -
(a) grant affiliation to the institution, where recognition
has been granted; or
(b) cancel the affiliation of the institution, where
recognition has been refused.”
30. Linked to this very provision is the provision of Section 16 of the
Act that reads as follows :
“16. AFFILIATING BODY TO GRANT AFFILIATION AFTER RECOGNITION OR
PERMISSION BY THE COUNCIL
Notwithstanding anything contained in any other law for the time
being in force, no examining body shall, on or after the
appointed day,--
(a) grant affiliation, whether provisional or otherwise,
to any institution; or
(b) hold examination, whether provisional or otherwise,
for a course or training conducted by a recognized
institution,
Unless the institution concerned has obtained recognition from
the Regional Committee concerned, under Section 14 or permission
for a course or training under Section 15.”
31. The institution which does not comply with the terms and conditions
imposed or contravenes any terms and conditions subject to which the
recognition was granted, any regulation, orders made under the Act and/or
any provision of the Act, the NCTE may withdraw recognition of such
recognized institution for reasons to be recorded in writing under Section
17(1) subject to compliance of the conditions stated therein. Once the
recognition is withdrawn, the following very serious consequences follow in
terms of Section 17(3) of the Act :
1. such institution shall discontinue the course or training in teacher
education;
2. the concerned University or the examining body shall cancel
affiliation of the institution in accordance with the order passed
under sub-section (1) with effect from the end of the academic
session next following the date of communication of the said order.
32. Following the date of communication of such order, an institution
which carries on and offers any course of training in teacher education in
terms of Section 17(4), the degree obtained from such an institution shall
not be treated as valid qualification for employment under any State
Government or the Central Government, Government University or school,
college or any other Government institution.
33. From the reading of the above provisions, it is clear that the NCTE
is expected to perform functions of a very high order and to ensure
maintenance of higher standards of education in teachers training. Default
in compliance of its orders/directions can result in very serious
consequences and, in fact, would render the concerned institute ineffective
and inoperative. Where the recognition by the NCTE gives benefits of wide
magnitude to an institute, there the withdrawal of recognition not only
causes impediments in dispensation of teacher training courses by that
institution but the institution is obliged to discontinue such courses from
the specified time.
34. Section 16 opens with a non obstante language and has an overriding
effect over all other laws for the time being in force. It requires that
unless the institution concerned has obtained recognition from the Regional
Committee concerned, no examining body ‘shall’, on or after the appointed
day, grant affiliation, whether provisional or otherwise, or even hold
examination, whether provisional or otherwise, for the courses in the
teacher training programme. On the other hand, Section 17(3) also uses the
expression ‘shall’ thereby making it mandatory for the University or the
examining body to cancel affiliation of the institution in accordance with
the order passed by the NCTE withdrawing the recognition of the
Institution. These provisions convey the significant, vital and overriding
effect of this Act in comparison to other laws in force.
35. To perform its functions, the NCTE constitutes regional committees
which are divided into four different regions. The purpose of constitution
of these committees is to effectively deal with the aspect of grant,
continuation or refusal of the recognition. It has two objectives to
attain – (1) convenience for all stakeholders; and (2) more effective
implementation of the provisions of the Act. Section 32 empowers the NCTE
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.
The Regulations are to deal with various subjects including providing of
norms, guidelines and standards in respect of minimum qualification for a
person to be employed as a teacher, starting of new courses or training in
recognized institutions, standards in respect of examinations leading to
teacher education, qualifications and other specified matters. The Central
Government, in exercise of the power vested in it under Section 31(1) of
the Act, framed the Rules called the ‘National Council for Teacher
Education Rules, 1997’. These Rules, in detail, deal with the expert
members of the NCTE, powers and duties of the Chair-person, appeals which a
person could make in terms of Rule 10 in relation to the orders passed
under Sections 15, 16 and 17 of the Act. However, these Rules were
subjected to amendment vide notification dated 15th September, 2003.
36. Vide notification dated 13th November, 2002, the ‘NCTE (Form of
application for recognition, the time limit of submissions of application,
determination of norms and standards for recognition of teacher education
programmes and permission to start new course or training) Regulations,
2002’ were notified to deal with the prescribed procedure for making
applications for recognition as well as how it is to be dealt with and
grant and refusal of recognition. Under Regulation 8, it was specified
that the norms and standards for various teacher education courses should
be separately provided for separate courses. Resultantly, under Appendix 3
to Appendix 14, norms and standards in relation to various courses, which
were to be complied with by the applicant, were specified. The object was
to bring greater transparency and specialization into the entire process of
grant of recognition to the institutions. For example, norms and standards
for secondary teacher education programme was provided under Appendix 7.
Similarly, other courses were provided different standards. Appendix 1A
prescribed the form of an application for grant of recognition of teacher
education institutions/permission to start a new course or increase in
intake. This application contained all information that was necessary for
the Regional Committee to entertain an application and know the requisite
details, as contemplated under Section 14(1)(a).
37. Further, to facilitate the operation of the Regulations and for
removal of functional difficulties, after consultation with different
quarters, the NCTE framed regulations under Section 32 of the Act which
were called the ‘National Council for Teachers Education (Recognition,
Norms and Procedure) Regulations, 2005’. Under these Regulations,
different time limits were provided within which the applications were to
be dealt with and responded to by different stakeholders involved in the
process of grant/refusal of recognition. Under these Regulations, the
applications which were complete in all respects had to be processed by the
office of the concerned Regional Committee within 30 days of the receipt of
such application. A written communication along with a copy of the
application form submitted by the institution of the concerned State/Union
Territory shall be sent to the State Government/UT Administration
concerned. On receipt of the application, the State Government/UT
Administration concerned was required to furnish its recommendations to the
office of the Regional Committee concerned within 60 days from the receipt.
If the recommendation was negative, the State Government was required to
provide detailed reasons/grounds thereof in terms of Regulation 7(3) of the
Regulations. Then, the expert team was to be appointed which was to visit
the institution. Video tapes of the visiting team were to be placed before
the Regional Committee along with its recommendations and the Regional
Committee was to decide grant of recommendation or permission to the
institution only after all the conditions prescribed under the Act, Rules,
Regulations and the norms and standards laid down were satisfied. The
institution concerned was required to be informed of the decision for
grant/refusal of recognition or permission. It could impose such
conditions as the NCTE may deem fit and proper.
38. Thereafter, vide notification dated 27th November, 2007, again in
exercise of its powers under sub-section (2) of Section 32, the NCTE
revised the Regulations and these are called the ‘National Council for
Teacher Education (Recognition, Norms and Procedure) Regulations, 2009’.
They deal with the applicability, eligibility, manner of making application
and time limits, processing fee, processing of applications, conditions for
granting recommendation, norms and standards, academic calendar, power to
relax any of the provisions of these Regulations, etc. These Regulations
are quite comprehensive and under Regulation 13, the Regulations of 2007
and 2005 both are repealed and it is stated in Regulation 13(3) that the
repeal of the said earlier Regulations shall not affect previous operation
of any Regulation so repealed or anything duly done thereunder. Under
Regulation 5, the application has to be filed in the manner prescribed and
within the time specified. Under Regulation 5(4), duly completed
application in all respects may be submitted to the Regional Committee
concerned during the period from 1st day of September, till 31st day of
October of the preceding year to the academic session for which recognition
has been sought. Regulation 5(4), however, provided that the condition of
last date for submission of application shall not apply to any innovative
programme of teacher education for which separate guidelines have been
issued by the NCTE. The final decision on all the applications received,
either recognition granted or refused, shall be communicated to the
applicant on or before 15th day of May of the succeeding year. These
Regulations take note of even minute details like that if there is any
omission or deficiency in the documents, the Regional Committee shall point
out the deficiency within 45 days of the receipt of the application which
the applicant shall remove within 60 days from the date of receipt of
communication of such deficiency. In terms of Regulation 7(2), like in the
2007 Regulations, a written communication along with a copy of the
application has to be sent to the State Government or the Union Territory
Administration within 30 days from the date of the receipt of the
application inviting recommendations or comments which are to be submitted
by them within 45 days of the issue of letter to the State or the Union
Territory, as the case may be. After consideration of the recommendations,
the Regional Committee shall decide as regards the inspection of the
institutions and communicate the same to the institution. The Regional
Committee shall ensure that inspection is conducted within 30 days from the
date of this communication to the institution. The experts are to visit
the institution and submit their report. The inspection has to be video-
graphed. Considering the recommendation of the State Government, the
Regional Committee shall grant or refuse the recognition within the
specified date. It is also required under these Regulations [Regulation
8(2)] that, in the first instance, an institution shall be considered for
grant of recognition of only one course for the basic unit as prescribed in
the norms and standards for the particular teacher education programme.
After completion of three academic sessions of the respective course, it
can submit an application for one basic unit only of an additional course
or for an additional unit of the existing recognized course before the cut-
off date prescribed for submission of applications in the year succeeding
the completion of three academic sessions. After the recognition has been
granted in terms of Regulation 11, it is incumbent upon the affiliating
body to regulate the process of admission in teacher education institutions
by prescribing the schedule or academic calendar in respect of each of the
courses listed in Appendix 1 to 13 to the Regulations and this has to be
done at least three months in advance of the commencement of each academic
session and upon due publicity.
39. This is the scheme of grant and/or refusal of the recognition to an
institution dealing with various courses of teacher training programme.
40. Under the scheme of the NCTE Act, there are three principal bodies
involved in processing the applications for grant or refusal of recognition
for running of teacher training courses by various institutions. They are
the NCTE, the State Government, the affiliating body or the University, as
the case may be. Each of these stakeholders has been assigned a definite
role under the provisions of the NCTE Act and even the stage at which such
role is required to be performed. The provisions of the NCTE Act even
identify the scope and extent of power which each of these bodies is
expected to exercise. As already noticed, the NCTE Act has been enacted
with the object of constituting a National Council with a view to achieve
planned and coordinated development of teacher education system throughout
the country and also to ensure maintenance of proper norms and standards in
teacher education system. The NCTE is a specialized body and is expected
to perform varied functions including grant of recognition, ensuring
maintenance of proper norms and standards in relation to teacher education,
inspection of the colleges through experts and to ensure strict adherence
to the time schedule specified under the NCTE Act and rules and regulations
framed therein.
41. The NCTE Act is a special act enacted to cover a particular field,
i.e. teacher training education and, thus, has to receive precedence over
other laws in relation to that field. No institution or body is empowered
to grant recognition to any institution under the NCTE Act or any other law
for the time being in force, except the NCTE itself. Grant of recognition
by the Council is a condition precedent to grant of affiliation by the
examining body to an institute.
42. The non-obstante language of Section 16 requires the affiliating body
to grant affiliation only after recognition or permission has been granted
by the NCTE. The provisions of Section 16 give complete supremacy to the
expert body/NCTE in relation to grant of recognition. In fact, it renders
the role of other bodies consequential upon grant and/or refusal of
recognition. When the NCTE is called upon to consider an application for
grant of recognition, it has to consider all the aspects in terms of
Section 14(1)(a) of the NCTE Act. The amplitude of this provision is very
wide and hardly leaves any matter relatable to an educational institution
outside its ambit. To put it simply, the NCTE is a supreme body and is
vested with wide powers to be exercised with the aid of its expertise, in
granting or refusing to grant recognition to an educational institution.
The NCTE is the paramount body for granting the approval/recognition not
only for commencing of fresh courses but even for increase in intake, etc.
The Council has to ensure maintenance of educational standards as well as
strict adherence to the prescribed parameters for imparting of such
educational courses, including the infrastructure. The provision and
scheme of the NCTE Act is pari materia to that of the Medical Council of
India Act, 1956 and the All India Council for Technical Education Act,
1987 etc.
43. Now, we may examine some of the judgments of this Court which have
dealt with these aspects. In the case of State of Tamil Nadu and Anr.
v. Adhiyaman Educational & Research Institute and Ors. (1995) 4 SCC 104 ,
the Supreme Court while discussing various aspects in regard to
constitutional validity of Tamil Nadu Private College Regulation Act, 1976
and the provisions of the All India Council for Technical Education Act
clearly spelled out the preferential role of the Council as under:
“22. The aforesaid provisions of the Act including its preamble
make it abundantly clear that the Council has been established
under the Act for coordinated and integrated development of the
technical education system at all levels throughout the country
and is enjoined to promote qualitative improvement of such
education in relation to planned quantitative growth. The
Council is also required to regulate and ensure proper
maintenance of norms and standards in the technical education
system. The Council is further to evolve suitable performance
appraisal system incorporating such norms and mechanisms in
enforcing their accountability. It is also required to provide
guidelines for admission of students and has power to withhold
or discontinue grants and to de-recognise the institutions where
norms and standards laid down by it and directions given by it
from time to time are not followed. This duty and responsibility
cast on the Council implies that the norms and standards to be
set should be such as would prevent a lopsided or an isolated
development of technical education in the country.
...It is necessary to bear this aspect of the norms and
standards to be prescribed in mind, for a major debate before us
centered around the right of the States to prescribe standards
higher than the one laid down by the Council. What is further
necessary to remember is that the Council has on it
representatives not only of the States but also of the State
Universities. They have, therefore, a say in the matter of
laying down the norms and standards which may be prescribed by
the Council for such education from time to time. The Council
has further the Regional Committees, at present, at least, in
four major geographical zones and the constitution and functions
of the Committees are to be prescribed by the regulations to be
made by the Council. Since the Council has the representation of
the States and the provisional bodies on it which have also
representation from different States and regions, they have a
say in the constitution and functions of these Committees as
well....”
44. Further, the Court, while noticing the inconsistency between the
Central and State statutes or the State authorities acting contrary to the
Central statute, held as under :
“41. (vi) However, when the situations/seats are available and
the State authorities deny an applicant the same on the ground
that the applicant is not qualified according to its standards
or qualifications, as the case may be, although the applicant
satisfies the standards or qualifications laid down by the
Central law, they act unconstitutionally. So also when the State
authorities de-recognise or disaffiliate an institution for not
satisfying the standards or requirement laid down by them,
although it satisfied the norms and requirements laid down by
the Central authority, the State authorities act illegally.
XXX XXX XXX
43. As a result, as has been pointed out earlier, the provisions
of the Central statute on the one hand and of the State statutes
on the other, being inconsistent and, therefore, repugnant with
each other, the Central statute will prevail and the de-
recognition by the State Government or the disaffiliation by the
State University on grounds which are inconsistent with those
enumerated in the Central statute will be inoperative.”
45. Still, in another case of Jaya Gokul Educational Trust v.
Commissioner & Secretary to Government Higher Education Deptt.,
Thiruvananthapuram, Kerala State and Anr. [2000) 5 SCC 231], the Court
reiterating the above principle, held as under:
“22. As held in the Tamil Nadu case AIR 1995 SCW 2179, the
Central Act of 1987 and; in particular, Section 10(K) occupied
the field relating the `grant of approvals' for establishing
technical institutions and the provisions of the Central Act
alone were to be complied with. So far as the provisions of the
Mahatma Gandhi University Act or its statutes were concerned and
in particular statute 9(7), they merely required the University
to obtain the `views' of the State Government. That could not be
characterised as requiring the "approval" of the State
Government. If, needed, the University statute could be so
interpreted, such a provision requiring approval of the State
Government would be repugnant to the provisions of Section 10(K)
of the AICTE Act, 1987 and would again be void. As pointed out
in the Tamil Nadu case there were enough provisions in the
Central Act for consultation by the Council of the AICTE with
various agencies, including the State Governments and the
Universities concerned. The State Level Committee and the
Central Regional Committees contained various experts and State
representatives. In case of difference of opinion as between the
various consultees, the AICTE would have to go by the views of
the Central Task Force. These were sufficient safeguards for
ascertaining the views of the State Governments and the
Universities. No doubt the question of affiliation was a
different matter and was not covered by the Central Act but in
the Tamil Nadu case, it was held that the University could not
impose any conditions inconsistent with the AICTE Act or its
Regulation or the conditions imposed by the AICTE. Therefore,
the procedure for obtaining the affiliation and any conditions
which could be imposed by the University, could not be
inconsistent with the provisions of the Central Act. The
University could not, therefore, in any event have sought for
`approval' of the State Government.”
46. This view of the Supreme Court was reiterated with approval by a
larger Bench of the Supreme Court in the case of State of Maharashtra
v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Ors. [(2006) 9 SCC
1]. While discussing in detail the various legal issues in relation to
grant of affiliation/ recognition to the institution and permission to
start a new college, the Court held as under:
“53. The Court then considered the argument put forward on
behalf of the State that while it would be open for the Council
to lay down minimum standards and requirements, it did not
preclude the State from prescribing higher standards and
requirements.
54. Negativing the contention, the Court quoted with approval
the following observations of B.N. Rau, J. in G.P. Stewart v.
Brojendra Kishore Roy Chaudhury (AIR 1939 Cal. 628 : 43 Cal.
W.N. 913) :
“It is sometimes said that two laws cannot be said to be
properly repugnant unless there is direct conflict between
them, as when one says `do' and the other 'dont', there is
no true repugnancy, according to this view, if it is
possible to obey both the laws. For reasons which we shall
set forth presently, we think that this is too narrow a
test; there may well be cases of repugnancy where both laws
say `don't' but in different ways. For example, one law may
say `no person shall sell liquor by retail, that is, in
quantities of less than five gallons at a time' and another
law may say, `no person shall sell liquor by retail, that
is, in quantities of less than ten gallons at a time'.
Here, it is obviously possible to obey both laws, by
obeying the more stringent of the two, namely, the second
one; yet it is equally obvious that the two laws are
repugnant, for to the extent to which a citizen is
compelled to obey one of them, the other, though not
actually disobeyed, is nullified.”
XXX XXX XXX
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 and Charitable Trust Vs.
State of Tamil Nadu, 1996 DGLS (soft) 327 : 1996 (3) S.C.C.
15 : JT 1996 (2) S.C. 692 as also in Jaya Gokul Educational
Trust.
XXX XXX XXX
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 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.”
47. The above enunciated principles clearly show that the Council is the
authority constituted under the Central Act with the responsibility of
maintaining education of standards and judging upon the infra-structure and
facilities available for imparting such professional education. Its opinion
is of utmost importance and shall take precedence over the views of the
State as well as that of the University. The concerned Department of the
State and the affiliating University have a role to play but it is limited
in its application. They cannot lay down any guideline or policy which
would be in conflict with the Central statute or the standards laid down by
the Central body. State can frame its policy for admission to such
professional courses but such policy again has to be in conformity with the
directives issued by the Central body. In the present cases, there is not
much conflict on this issue, but it needs to be clarified that while the
State grants its approval, and University its affiliation, for increased
intake of seats or commencement of a new course/college, its directions
should not offend and be repugnant to what has been laid down in the
conditions for approval granted by the Central authority or Council. What
is most important is that all these authorities have to work ad idem as
they all have a common object to achieve i.e. of imparting of education
properly and ensuring maintenance of proper standards of education,
examination and infrastructure for betterment of educational system. Only
if all these authorities work in a coordinated manner and with cooperation,
will they be able to achieve the very object for which all these entities
exist.
48. The NCTE Act has been enacted by the Parliament with reference to
Entry 66 of List I of Schedule VII of the Constitution. There is no such
specific power vested in the State Legislature under List II of the Seventh
Schedule. Entry 25 of List III of the Seventh Schedule is the other Entry
that provides the field for legislation both to the State and the Centre,
in relation to education, including technical education, medical education
and Universities; vocational and technical training and labour. The field
is primarily covered by the Union List and thus, the State can exercise any
legislative power under Entry 25, List III but such law cannot be repugnant
to the Central law. Wherever the State law is irreconcilable with the
Central law, the State Law must give way in favour of the Central law to
the extent of repugnancy. This will show the supremacy of the Central law
in relation to professional education, including the teacher training
programmes. In the case of Medical Council of India v. State of
Karnataka [(1998) 6 SCC 131], the Court had the occasion to discuss this
conflict as follows: -
“27. The State Acts, namely, the Karnataka Universities Act and
the Karnataka Capitation Fee Act must give way to the Central
Act, namely, the Indian Medical Council Act, 1956. The Karnataka
Capitation Fee Act was enacted for the sole purpose of
regulation in collection of capitation fee by colleges and for
that, the State Government is empowered to fix the maximum
number of students that can be admitted but that number cannot
be over and above that fixed by the Medical Council as per the
regulations. Chapter IX of the Karnataka Universities Act, which
contains provision for affiliation of colleges and recognition
of institutions, applies to all types of colleges and not
necessarily to professional colleges like medical colleges. Sub-
section (10) of Section 53, falling in Chapter IX of this Act,
provides for maximum number of students to be admitted to
courses for studies in a college and that number shall not
exceed the intake fixed by the university or the Government. But
this provision has again to be read subject to the intake fixed
by the Medical Council under its regulations. It is the Medical
Council which is primarily responsible for fixing standards of
medical education and overseeing that these standards are
maintained. It is the Medical Council which is the principal
body to lay down conditions for recognition of medical colleges
which would include the fixing of intake for admission to a
medical college. We have already seen in the beginning of this
judgment various provisions of the Medical Council Act. It is,
therefore, the Medical Council which in effect grants
recognition and also withdraws the same. Regulations under
Section 33 of the Medical Council Act, which were made in 1977,
prescribe the accommodation in the college and its associated
teaching hospitals and teaching and technical staff and
equipment in various departments in the college and in the
hospitals. These regulations are in considerable detail. Teacher-
student ratio prescribed is 1 to 10, exclusive of the Professor
or Head of the Department. Regulations further prescribe, apart
from other things, that the number of teaching beds in the
attached hospitals will have to be in the ratio of 7 beds per
student admitted. Regulations of the Medical Council, which were
approved by the Central Government in 1971, provide for the
qualification requirements for appointments of persons to the
posts of teachers and visiting physicians/surgeons of medical
colleges and attached hospitals.
XXX XXX XXX
29. A medical student requires gruelling study and that can be
done only if proper facilities are available in a medical
college and the hospital attached to it has to be well equipped
and the teaching faculty and doctors have to be competent enough
that when a medical student comes out, he is perfect in the
science of treatment of human beings and is not found wanting in
any way. The country does not want half-baked medical
professionals coming out of medical colleges when they did not
have full facilities of teaching and were not exposed to the
patients and their ailments during the course of their study.
The Medical Council, in all fairness, does not wish to
invalidate the admissions made in excess of that fixed by it and
does not wish to take any action of withdrawing recognition of
the medical colleges violating the regulation. Henceforth,
however, these medical colleges must restrict the number of
admissions fixed by the Medical Council. After the insertion of
Sections 10-A, 10-B and 10-C in the Medical Council Act, the
Medical Council has framed regulations with the previous
approval of the Central Government which were published in the
Gazette of India dated 29-9-1993 (though the notification is
dated 20-9-1993). Any medical college or institution which
wishes to increase the admission capacity in MBBS/higher courses
(including diploma/degree/higher specialities), has to apply to
the Central Government for permission along with the permission
of the State Government and that of the university with which it
is affiliated and in conformity with the regulations framed by
the Medical Council. Only the medical college or institution
which is recognised by the Medical Council can so apply.”
49. A Constitution Bench of this Court in the case of Dr. Preeti
Srivastava & Anr. v. State of Madhya Pradesh & Ors. [(1999) 7 SCC 120],
while dealing with the provisions of the Medial Council of India Act and
referring to Entry 25 of List III and Entry 66 of List I with reference to
the Articles 245, 246, 254 and 15(4) of the Constitution, spelled out the
supremacy of the Council and the provisions of the Central Act,
particularly in relation to the control and regulation of higher education.
It also discussed providing of the eligibility conditions and
qualifications and determining the standards to be maintained by the
Institutions. The Court in paragraph 36 of the judgment held as under: -
“36. It would not be correct to say that the norms for admission
have no connection with the standard of education, or that the
rules for admission are covered only by Entry 25 of List III.
Norms of admission can have a direct impact on the standards of
education. Of course, there can be rules for admission which are
consistent with or do not affect adversely the standards of
education prescribed by the Union in exercise of powers under
Entry 66 of List I. For example, a State may, for admission to
the postgraduate medical courses, lay down qualifications in
addition to those prescribed under Entry 66 of List I. This
would be consistent with promoting higher standards for
admission to the higher educational courses. But any lowering of
the norms laid down can and does have an adverse effect on the
standards of education in the institutes of higher education.
Standards of education in an institution or college depend on
various factors. Some of these are:
(1) the calibre of the teaching staff;
(2) a proper syllabus designed to achieve a high level of
education in the given span of time;
(3) the student-teacher ratio;
(4) the ratio between the students and the hospital beds
available to each student;
(5) the calibre of the students admitted to the institution;
(6) equipment and laboratory facilities, or hospital
facilities for training in the case of medical colleges;
(7) adequate accommodation for the college and the attached
hospital; and
(8) the standard of examinations held including the manner in
which the papers are set and examined and the clinical
performance is judged.”
50. The principle of repugnancy and its effects were discussed by this
Court in the case of S. Satyapal Reddy v. Government of A.P. (1994) 4 SCC
391, wherein it held as under:
“7. It is thus settled law that Parliament has exclusive power
to make law with respect to any of the matters enumerated in
List I or concurrent power with the State Legislature in List
III of the VIIth Schedule to the Constitution which shall
prevail over the State law made by the State Legislature
exercising the power on any of the entries in List III. If the
said law is inconsistent with or incompatible to occupy the same
field, to that extent the State law stands superseded or becomes
void. It is settled law that when Parliament and the Legislature
derive that power under Article 246(2) and the entry in the
Concurrent List, whether prior or later to the law made by the
State Legislature, Article 246(2) gives power, to legislate upon
any subject enumerated in the Concurrent List, the law made by
Parliament gets paramountcy over the law made by the State
Legislature unless the State law is reserved for consideration
of the President and receives his assent. Whether there is an
apparent repugnance or conflict between Central and State laws
occupying the same field and cannot operate harmoniously in each
case the court has to examine whether the provisions occupy the
same field with respect to one of the matters enumerated in the
Concurrent List and whether there exists repugnancy between the
two laws. Article 254 lays emphasis on the words “with respect
to that matter”. Repugnancy arises when both the laws are fully
inconsistent or are absolutely irreconcilable and when it is
impossible to obey one without disobeying the other. The
repugnancy would arise when conflicting results are produced
when both the statutes covering the same field are applied to a
given set of facts. But the court has to make every attempt to
reconcile the provisions of the apparently conflicting laws and
court would endeavour to give harmonious construction. The
purpose to determine inconsistency is to ascertain the intention
of Parliament which would be gathered from a consideration of
the entire field occupied by the law. The proper test would be
whether effect can be given to the provisions of both the laws
or whether both the laws can stand together. Section 213 itself
made the distinction of the powers exercisable by the State
Government and the Central Government in working the provisions
of the Act. It is the State Government that operates the
provisions of the Act through its officers. Therefore, sub-
section (1) of Section 213 gives power to the State Government
to create Transport Department and to appoint officers, as it
thinks fit. Sub-section (4) thereof also preserves the power. By
necessary implication, it also preserves the power to prescribe
higher qualification for appointment of officers of the State
Government to man the Motor Vehicles Department. What was done
by the Central Government was only the prescription of minimum
qualifications, leaving the field open to the State Government
concerned to prescribe if it finds necessary, higher
qualifications. The Governor has been given power under proviso
to Article 309 of the Constitution, subject to any law made by
the State Legislature, to make rules regulating the recruitment
which includes prescription of qualifications for appointment to
an office or post under the State. Since the Transport
Department under the Act is constituted by the State Government
and the officers appointed to those posts belong to the State
service, while appointing its own officers, the State Government
as a necessary adjunct is entitled to prescribe qualifications
for recruitment or conditions of service. But while so
prescribing, the State Government may accept the qualifications
or prescribe higher qualification but in no case prescribe any
qualification less than the qualifications prescribed by the
Central Government under sub-section (4) of Section 213 of the
Act. In the latter event, i.e., prescribing lesser
qualifications, both the rules cannot operate without colliding
with each other. When the rules made by the Central Government
under Section 213(4) and the statutory rules made under proviso
to Article 309 of the Constitution are construed harmoniously,
there is no incompatibility or inconsistency in the operation of
both the rules to appoint fit persons to the posts or class of
officers of the State Government vis-a-vis the qualifications
prescribed by the Central Government under sub-section (4) of
Section 213 of the Act.”
51. In the case of Jaya Gokul Educational Trust (supra), the Court, while
referring to the case of State of Tamil Nadu v. Adhiyaman Educational and
Research Institute (supra), took the view that where the provisions of the
State Act overlap and are in conflict with the provisions of the Central
Act in various areas, the matters which are specifically covered under the
Central Act cannot be undermined and they shall prevail. The court further
stated that a provision in the Universities Act requiring the University to
obtain merely the views of the State Government could not be characterized
as requiring ‘approval’ of the State Government. If the University Statute
could be so interpreted, such a provision requiring approval of the State
Government would be repugnant to the provisions of Section 10(k) of the
AICTE Act and would, therefore, be void.
52. In the case of Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya
(supra), the Court, while dealing with the provisions of the Act with which
we are concerned in the present case, held that field of teachers’
education and matters connected therewith stood fully and completely
occupied by the Act and hence the State legislature could not encroach upon
that field. In the case of Engineering Kamgar Union v. Electro Steels
Castings Ltd. and Anr. [(2004) 6 SCC 36], the Court was dealing with a
direct conflict between the two provisions of different Acts and stated
that direct conflict arises not only where the provisions of one of the
Acts has to be disobeyed if the other is followed but also where both laws
lead to different results. Extending the doctrine of repugnancy to that
situation, the Court held in paragraph 18 of the judgment that the Central
Law shall prevail. The said paragraph reads as under: -
“18. In terms of clause (2) of Article 254 of the Constitution
of India where a law made by the legislature of a State with
respect to one of the matters enumerated in the Concurrent List
contains any provisions repugnant to the provisions of an
earlier law made by Parliament or an existing law with respect
to the matters, then the law so made by the legislature of such
State shall, if it has been reserved for consideration of the
President and has received its assent, prevail in that State. It
is not in dispute that the 1983 Act has received the assent of
the President of India and, thus, would prevail over any
parliamentary law governing the same field.”
53. From the above consistent view of this Court it is clear that
wherever the field is covered by the Parliamentary law in terms of List I
and List III, the law made by the State Legislature would, to the extent of
repugnancy, be void. Of course, there has to be a direct conflict between
the laws. The direct conflict is not necessarily to be restricted to the
obedience of one resulting in disobedience of other but even where the
result of one would be in conflict with the other. It is difficult to
state any one principle that would uniformly be applicable to all cases of
repugnancy. It will have to be seen in the facts of each case while
keeping in mind the laws which are in conflict with each other. Where the
field is occupied by the Centre, subject to the exceptions stated in
Article 254, the State law would be void.
54. In the present case, we are concerned with the provisions of the NCTE
Act which is a Central legislation referable to Entry 66 of List I of the
Seventh Schedule. Thus, no law enacted by the State, which is in conflict
with the Central Law, can be permitted to be operative.
55. Now, let us examine the conflict that arises in the present cases.
In terms of the provisions of the Act, the Regional Committee is required
to entertain the application, consider State opinion, cause inspection to
be conducted by an expert team and then to grant or refuse recognition in
terms of the provisions of the Act. Once a recognition is granted and
before an Institution can be permitted to commence the course, it is
required to take affiliation from the affiliating body, which is the
University.
56. Thus, grant of recognition or affiliation to an institute is a
condition precedent to running of the courses by the Institute. If either
of them is not granted to the institute, it would not be in a position to
commence the relevant academic courses. There is a possibility of some
conflict between a University Act or Ordinance relating to affiliation with
the provisions of the Central Act. In such cases, the matter is squarely
answered in the case of Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya
(supra) where the Court stated that after coming into operation of the
Central Act, the operation of the University Act would be deemed to have
become unenforceable in case of technical colleges. It also observed that
provision of the Universities Act regarding affiliation of technical
colleges and conditions for grant of continuation of such affiliation by
university would remain operative but the conditions that are prescribed by
the university for grant and continuation of affiliation must be in
conformity with the norms and guidelines prescribed by the NCTE.
57. Under Section 14 and particularly in terms of Section 14(3)(a) of the
Act, the NCTE is required to grant or refuse recognition to an institute.
It has been empowered to impose such conditions as it may consider fit and
proper keeping in view the legislative intent and object in mind. In terms
of Section 14(6) of the Act, the examining body shall grant affiliation to
the institute where recognition has been granted. In other words, granting
recognition is the basic requirement for grant of affiliation. It cannot
be said that affiliation is insignificant or a mere formality on the part
of the examining body. It is the requirement of law that affiliation
should be granted by the affiliating body in accordance with the prescribed
procedure and upon proper application of mind. Recognition and affiliation
are expressions of distinct meaning and consequences. In the case of
Chairman, Bhartia Education Society v. State of Himachal Pradesh & Ors.
[(2011) 4 SCC 527], this Court held that the purpose of recognition and
affiliation is different. In the context of the Act, affiliation enables
and permits an institution to send its students to participate in public
examinations conducted by the examining body and secure the qualification
in the nature of degrees, diploma and certificates. On the other hand,
recognition is the licence to the institution to offer a course or training
in teaching education. The Court also emphasised that the affiliating
body/examining body does not have any discretion to refuse affiliation with
reference to any of the factors which have been considered by the NCTE
while granting recognition.
58. The examining body can impose conditions in relation to its own
requirements. These aspects are (a) eligibility of students for admission;
(b) conduct of examinations; (c) the manner in which the prescribed courses
should be completed; and (d) to see that the conditions imposed by the NCTE
are complied with. Despite the fact that recognition itself covers the
larger precepts of affiliation, still the affiliating body is not to grant
affiliation automatically but must exercise its discretion fairly and
transparently while ensuring that conditions of the law of the university
and the functions of the affiliating body should be complementary to the
recognition of NCTE and ought not to be in derogation thereto.
59. In the case of St. John Teachers Training Institute v. Regional
Director, National Council for Teacher Education [(2003) 3 SCC 321], this
Court attempted to strike a balance between the role played by the NCTE, on
the one hand and affiliating body and State Government, on the other. Once
the affiliating body acts within the fundamentals of Section 14 of the Act,
possibility of a conflict can always be avoided.
60. In these appeals, we are concerned with the colleges which are
affiliated to different universities. Some of them are affiliated to Dr.
Ram Manohar Lohia Avadh University, Faizabad, some to Dr. Bhimarao Ambedkar
University, Agra while others to the University of Meerut. All these
universities have been created by statutes and have their own ordinances.
The Universities Act is the parent statute under which all these
universities have been constituted. Under Section 2(20) of the
Universities Act, ‘University’ means an existing University or a new
University established after the commencement of this Act in terms of
Section 4 of this Act. Section 4 empowers the State Government to
establish a university in the manner prescribed by its notification in the
Official Gazette. The provision provides for establishment of different
universities and which had, in fact, been already established. Chapter VII
of the Universities Act deals with Affiliation and Recognition. Section
37(1) states that the section shall apply to different universities under
which all the universities which are respondent in these appeals are
covered. In terms of Section 37(2), the Executive Council may, with the
previous sanction of the State Government, admit any college which fulfils
such conditions of affiliation as may be prescribed, to the privileges of
affiliation or enlarge the privileges of any college already affiliated or
subject to the provisions of sub-section (8), withdraw or curtail any such
privilege. It has further been provided that a college should
substantially fulfill the conditions of affiliation in the opinion of the
State Government, for it to sanction grant of affiliation to the college.
In terms of Section 37(6), the Executive Council of the university shall
cause every affiliated college to be inspected from time to time at
intervals not exceeding five years. Section 37(8) states that the
privileges of affiliation of a college which fails to comply with any
direction of the Executive Council under sub-section (7) or to fulfill the
condition of affiliation may, after obtaining the report from management of
the college and with previous sanction of the chancellor, be withdrawn or
curtailed by the Executive Council in accordance with the provisions of the
Statutes. In terms of Section 37(10), a college which has been affiliated
is entitled to continue the course of study for which the admissions have
already taken place. To give an example, under the statute of the Meerut
University, affiliation of new colleges is dealt with under statute 13.02
to 13.10 of Chapter XIII. This requires that every application for
affiliation of a college has to be made so as to reach the Registrar in
less than 12 months before the commencement of the course and before an
application is considered by the Executive Council, the Vice-Chancellor
must be satisfied that there is due compliance with the provisions of
statutes 3.05, 13.06 and 13.07. Besides, it requires the conditions like
adequate financial resources, suitable and sufficient building, adequate
library, two hectares of land, facilities for recreation of students, etc.
to be fulfilled. The constitution of the Management of every college has
also been provided.
61. The fields which are sought to be covered under the provisions of
Section 37 of the Universities Act and the Statutes of various universities
are clearly common to the aspects which are squarely covered by the
specific language under the Act. That being so, all State laws in regard
to affiliation in so far as they are covered by the Act must give way to
the operation of the provisions of the Act. To put it simply, the
requirements which have been examined and the conditions which have been
imposed by the NCTE shall prevail and cannot be altered, re-examined or
infringed under the garb of the State Law. The affiliating/examining body
and the State Government must abide by the proficiency and command of the
NCTE’s directions. To give an example, existence of building, library,
qualified staff, financial stability of the institution, accommodation,
etc. are the subjects which are specifically covered under Section 14(3)(b)
of the Act. Thus, they would not be open to re-examination by the State
and the University. If the recognition itself was conditional and those
conditions have not been satisfied, in such circumstances, within the ambit
and scope of Sections 46 and 16 of the Act, the affiliating body may not
give affiliation and inform the NCTE forthwith of the shortcomings and non-
compliance of the conditions. In such situation, both the Central and the
State body should act in tandem and, with due coordination, come to a final
conclusion as to the steps which are required to be taken in regard to both
recognition and affiliation. But certainly, the State Government and the
University cannot act in derogation to the NCTE.
62. Now, we may deal with another aspect of this very facet of the case.
It is a very pertinent issue as to what the role of the State should be
after the affiliation is granted by the affiliating body. We have already
discussed that the State opinion, as contemplated under Section 37 of the
University Act, to the extent it admits to overreach, is reconcilable and
its results are not in its orientation to the directives of the NCTE are
void and inoperative to the extent they can be resolved in which case clear
precedence is to be given to the directives of the NCTE during such
resolution. The opinion of the State, therefore, has to be read and
construed to mean that it would keep the factors determined by the NCTE
intact and then examine the matter for grant of affiliation. The role of
the State Government is minimised at this stage which, in fact, is a second
stage. It should primarily be for the University to determine the grant or
refusal of affiliation and role of the State should be bare, minimum non-
interfering and non-infringing.
63. It is on record and the Regulations framed under the Act clearly show
that upon receiving an application for recommendation, the NCTE shall send
a copy of the application with its letter inviting recommendations/comments
of the State Government on all aspects within a period of 30 days. To
such, application, the State is expected to respond with its complete
comments within a period of 60 days. In other words, the opinion of the
State on all matters that may concern it in any of the specified fields are
called for. This is the stage where the State and its Department should
play a vital role. They must take all precautions to offer proper comments
supported by due reasoning. Once these comments are sent and the State
Government gives its opinion which is considered by the NCTE and examined
in conjunction with the report of the experts, it may grant or refuse
recognition. Once it grants recognition, then such grant attains supremacy
viz-a-viz the State Government as well as the affiliating body. Normally,
these questions cannot be re-agitated at the time of grant of affiliation.
Once the University conducts inspection in terms of its Statutes or Act,
without offending the provisions of the Act and conditions of recognition,
then the opinion of the State Government at the second stage is a mere
formality unless there was a drastic and unacceptable mistake or the entire
process was vitiated by fraud or there was patently eminent danger to life
of the students working in the school because of non-compliance of a
substantive condition imposed by either of the bodies. In the normal
circumstances, the role of the State is a very formal one and the State is
not expected to obstruct the commencement of admission process and academic
courses once recognition is granted and affiliation is found to be
acceptable.
64. In the case of Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya
(supra), the view of this Court was that the State Government has no role
whatsoever. However, in the case of Bhartia Education Society (supra), it
was stated that the role of the State Government was limited to the manner
of admission, eligibility criteria, etc. without interfering with the
conditions of recognition prescribed by the NCTE. The exercise of
discretion by the State Government and affiliating body has to be within
the framework of the Act, the Regulations and conditions of recognition.
Even in St. John Teachers Training Institute (supra), the Court stated that
the State Government or the Union Territory has to necessarily confine
itself to the guidelines issued by the NCTE while considering application
for grant of ‘No Objection Certificate’. Minimization of the role of the
State at the second stage can also be justified on the ground that
affiliation primarily is a subject matter of the University which is
responsible for admission of the students laying down the criteria thereof,
holding of examinations and implementation of the prescribed courses while
maintaining the standards of education as prescribed.
65. Lastly, the question which is required to be discussed in light of
the facts of the present cases is adherence to the Schedule. Once the
relevant Schedules have been prescribed under the Regulations or under the
Judge made law, none, whosoever it be, is entitled to carve out exceptions
to the prescribed Schedule. Adherence to the Schedule is the essence of
granting admission in a fair and transparent manner as well as to maintain
the standards of education. The purpose of providing a time schedule is to
ensure that all concerned authorities act within the stipulated time.
Where, on the one hand, it places an obligation upon the authorities to
act according to the Schedule, there it also provides complete clarity to
other stakeholders as to when their application would either be accepted
and/or rejected and what will be the time duration for it to be processed
at different quarters. It also gives clear understanding to the students
for whose benefit the entire process is set up as to when their
examinations would be held, when results would be declared and when they
are expected to take admission to different colleges in order of merit
obtained by them in the entrance examinations or other processes for the
purposes of subject and college preference.
66. We are constrained to reiterate with emphasis at our command that the
prescribed schedules under the Regulations and the judgments must be
strictly adhered to without exceptions. None in the hierarchy of the State
Government, University, NCTE or any other authority or body involved in
this process can breach the Schedule for any direct or indirect reason.
Anybody who is found to be defaulting in this behalf is bound to render
himself or herself liable for initiation of proceedings under the
provisions of the Contempt of Courts Act, 1971 as well as for a
disciplinary action in accordance with the orders of the Court. In the
case of Parshavanath Charitable Trust & Ors. V. All India Council for
Technical Education & Ors. (Civil Appeal @ SLP(C) 26086 of 2012), decided
on the same date, this Court held as under :
“29… Time schedule is one such condition specifically prescribed
for admission to the colleges. Adherence to admission schedule
is again a subject which requires strict conformity by all
concerned, without exception. Reference in this regard can be
made to Ranjan Purohit and Ors. V. Rajasthan University of
Health Science and Ors. [(2012) 8 SCALE 71] at this stage, in
addition to the judgment of this Court in the case of Medical
Council of India v. Madhu Singh, [(2002) 7 SCC 258].”
67. Undoubtedly, adherence to Schedule achieves the object of the Act and
its various aspects. Disobedience results in unfair admissions, not
commencing the courses within the stipulated time and causing serious
prejudice to the students of higher merit resulting in defeating the rule
of merit.
68. We may very clearly state here that we adopt and reiterate the
Schedule stated by this Court in the case of College of Professional
Education (supra) in relation to admission as well as recognition and
affiliation. This obviously includes the commencement of the courses in
time. However, in order to avoid the possibility of any ambiguity, we
propose to state the schedule for recognition and affiliation in terms of
the NCTE Regulations 2009 and the judgment of this Court in the case of
College of Professional Education (supra) :
69. The process for grant of recognition, affiliation and thereby
sanctioning of commencement of the courses in terms of the Regulations and
the orders of this Court gives an outer period of approximately 270 days,
i.e. 9 months, from 1st September to 10th May of the year immediately
preceding the concerned academic year. Thus, for the entire process to be
within this framework, it must be completed within the afore-stated period.
The process inter alia includes various steps including comments of the
State, inspection of the institution and compliance of the various
conditions afore-noted in the order of recognition and affiliation by the
affiliating body.
70. There appear to be some over-lapping periods and even contradictions
between the dates and periods stated under the regulations inter se and
even with reference to the judgments of this Court prescribing the
Schedule. For example in terms of the judgment of this Court in the case
of College of Professional Education (supra), the last date for grant of
affiliation is 10th May of the concerned year, but as per Regulation 5.5 of
the NCTE Regulations, 2009, the last date for grant of recognition is 15th
May of the relevant year. Similarly, there is an overlap between the period
specified in Regulation 7.1 and that under Regulation 7.2. Such overlapping
is likely to cause some confusion in the mind of the implementing authority
as well as the applicant. Thus, it is necessary for this Court to put to
rest these avoidable events and unnecessary controversies. Compelled with
these circumstances and to ensure that there exists no ambiguity,
uncertainty and confusion, we direct and prescribe the following schedule
upon a cumulative reading of the Regulations and judgments of this Court in
relation to recognition and affiliation.
Schedule
|1. |Submission of applications for |1st September to 1st October |
| |recognition in terms of |of the year immediately |
| |Regulation 5.4 |preceding the relevant |
| | |academic year |
|2. |Communication of deficiencies, |Within 45 days from the date |
| |shortcomings or any other |of receipt of the |
| |discrepancy in the application |applications |
| |submitted by the applicant to | |
| |the applicant in terms of | |
| |Regulation 7.1 | |
|3. |Removal of such deficiencies by |Within 60 days from the date |
| |the applicant |of receipt of communication |
|4. |Forwarding of copy of the |Within 90 days from the date |
| |application to the State |of receipt of the application|
| |Government/UT Administration for| |
| |its recommendations/comments in | |
| |terms of Regulation 7.2 | |
|5. |Recommendations/ comments of the|Within 30 days from the date |
| |State Government/UT |of issue of letter to it. |
| |Administration to be submitted | |
| |to the Regional Committee under | |
| |Regulation 7.3 | |
|6. |If recommendations/ comments are| |
| |not received within 30 days, the|Within seven days from the |
| |Regional Committee shall send to|date of expiry of the period |
| |the State Government/UT |of 30 days. |
| |Administration a reminder letter| |
| |for submission of the | |
| |recommendations/ comments. | |
|7. |State Government/UT |Within 15 days from the date |
| |Administration shall furnish the|of receipt of such reminder |
| |recommendations/ comments |letter |
|8. |Intimation regarding inspection |Within 10 days from final |
| |by the Regional Committee to the|scrutiny of the application. |
| |applicant under Regulation 7(4) | |
|9. |Report by the Inspection |20 days thereafter |
| |Committee under Regulation 7(5) | |
|10. |Letter of intent to the | |
| |institution with respect to |10th of February of the |
| |grant or refusal of recognition |succeeding year/relevant year|
| |in terms of Regulation 7.9 | |
|11. |Time to comply with certain | |
| |specified conditions, in terms |20 days from the date of |
| |of Regulation 7(10) and 7(11) |issuance of letter of intent |
|12. |Issuance of formal order of | |
| |recognition |By 3rd March of each year |
|13. |Last date for submitting | |
| |proposal for affiliation |By 10th March of each year |
|14. |Forwarding of proposal by the | |
| |University to the State |By 10th March of each year |
| |Government/UT Administration | |
| |after inspection by expert team | |
|15. |Comments to be submitted by the | |
| |State Government/UT |By 10th March of each year |
| |Administration, if any | |
|16. |Final date for issuance/grant of| |
| |affiliation for the relevant |By 10th March of each year |
| |academic year | |
• All notices/orders/requirements/letters in terms of the above
schedule or under the provisions of the Act or terms and conditions
of already granted recognition/affiliation shall be sent by the
authority concerned by Speed Post/e-mail on the address given in the
application for correspondence etc. and shall be posted on the
website of the concerned Authority/Committee/Council/ Government.
• The recognition and affiliation granted as per above schedule shall
be applicable for the current academic year. For example
recognition granted upto 3rd March, 2013 and affiliation granted
upto 10th May, 2013 shall be effective for the academic year 2013-
2014 i.e. the courses starting from 1st April, 2013. For the
academic year 2013-2014, no recognition shall be issued after 3rd
March, 2013 and no affiliation shall be granted after 10th May,
2013. Any affiliation or recognition granted after the above cut-
off dates shall only be valid for the academic year 2014-2015.
• We make it clear that no Authority/person/ Council/Committee shall
be entitled to vary the schedule for any reason whatsoever. Any
non-compliance shall amount to violating the orders of the Court.
71. In all the appeals and petitions before us, the basic issue is
whether the university and the State Government were justified in rejecting
the application or not granting application for affiliation on the ground
that there was a cut-off date and/or the conditions of
recommendation/affiliation had not been satisfied. In some cases, serious
disputes have been raised with regard to the fulfillment of the conditions
of recognition and/or affiliation. As far as the reason in relation to cut-
off date is concerned, we cannot find any fault with the view taken by the
authorities concerned. 10th of May has been provided as the cut-off date,
after which no affiliation for the current academic year would be granted.
This, being the law stated by this Court, is binding on all concerned,
including any authority. The authorities have rightly acted in declining
to entertain and/or refusing affiliation to the institutions being beyond
the cut-off date. Adherence to the schedule was the obligation of the
authorities and the institutions cannot raise any grievance in that regard.
The said time schedule must become operative in all respects and nobody
should be permitted to carve exceptions to this mandatory direction.
72. Coming to the cases where the plea has been taken by the respondents
University/State that conditions of affiliation have not been satisfied.
It is not for this Court to examine the compliance or breach of conditions
and their extent in the special leave petitions or writ petitions as the
case may be. In fact, the judgment of the High Court has been brought to
our notice where it has been recorded that conditions in some cases have
been complied with, but still the State has taken the stand that besides
cut-off date, other conditions are also not satisfied. One of the
examples relates to the matter where the State/affiliating body has found
that even the building’s boundary wall was not complete and the fire
equipments have not been installed as prescribed. However, these were
specifically disputed by the petitioners/appellants who contended that all
conditions had been satisfied. Thus, these are disputes of very serious
nature. They will squarely fall beyond the ambit of appellate or writ
jurisdiction by this Court. This is for the specialised bodies to examine
the matters upon physical verification and to proceed with the application
of the institute in accordance with law.
73. We may mention that firstly vide order dated 26th July, 2012 a stay
in regard to counseling and admission was granted by this Court. However,
this order was varied again by order dated 27th September, 2012 which reads
as under:-
“By our interim order dated 26th July, 2012, we had, while
taking note of the fact that counselling for vacant seats in
B.Ed. Course for different private colleges in the State of
Uttar Pradesh was scheduled from 27th July, 2012 to
26th August, 2012, directed that the counselling will not be
held for the time being.
On 25th September, 2012, after hearing writ petition and all
other connected matters, we had called upon the Universities to
file an affidavit on the issue whether the students admitted to
the institution which had already been affiliated will be
able to complete the course during the academic session as
per the Regulations of the NCTE if the interim order is vacated
or modified now.
Pursuant to the aforesaid orders passed on 25th September, 2012,
an affidavit has been filed on behalf of respondent No. 2 - Dr.
Ram Manohar Lohia Awadh University and it is inter alia
stated therein that if the vacancies in the seats in different
private colleges which are affiliated are filled up and students
are admitted, the University will still be in a position to
complete the mandatory requirements of 200 days as per the
NCTE norms and Regulations, since the examinations for the last
academic session 2011-12 have commenced from the second week of
September, 2012 only. Along with the affidavit, a chart has
been annexed to indicate that there were 13,435 vacant seats in
self-financing colleges which are affiliated to the concerned
Universities comprising 2762 vacant seats in the Arts
and Commerce Stream and 10,673 seats in Science and Agriculture.
Considering the aforesaid facts stated in the affidavit filed
on behalf of respondent No. 2, we vacate the interim and permit
the authorities to fill up the vacant seats in B.Ed. Course in
different self-financing colleges which have already been
granted affiliation as well as Government and Government
aided Colleges. But we make it clear that the authorities will
ensure that the students are admitted strictly
as per the procedure that has been already notified on the
basis of merit in the entrance examination and fresh
counselling will take place after a fresh
advertisement in the newspapers having circulation in the State
of Uttar Pradesh and in the internet. The authorities will
also ensure that the students admitted complete the
mandatory period of 200 days' course in the B.Ed. as per norms
of the NCTE.
The matters are reserved for judgment.”
74. In furtherance to the above order, we are informed that the
admissions had been granted in the recognised and affiliated institutes.
In the colleges which were neither recognised nor affiliated, whether or
not included in the list of counseling, no admissions were given to the
students. The petitioner/appellant colleges fall in that category. We do
not propose to grant any relief to them in the present writ petitions and
appeals except issuance of certain directions. Consequently and in view
of our above discussion, we dispose of all these appeals/writ petitions
with the following directions:-
A) The schedule stated in the case of College of Professional
Education (supra) and in this judgment in relation to admissions,
recognition, affiliation and commencement of courses shall be
strictly adhered to by all concerned including the NCTE, the State
Government and the University/examining body.
B) In the event of disobedience of schedule and/or any attempt to
overreach or circumvent the judgment of this Court and the
directions contained herein, the concerned person shall render
himself or herself liable for proceedings under the Contempt of
Courts Act, 1971 and even for departmental disciplinary action in
accordance with law.
C) We hereby direct the NCTE/ State Government/ Examining or
affiliating body to consider the applications and pass appropriate
orders granting or refusing to grant recognition/affiliation to the
petitioner institutions within three months from today.
D) If the institutions are aggrieved from the order passed by the
authorities in terms of clause ‘C’ (supra), they will be at liberty
to challenge the same in accordance with law.
E) The NCTE shall circulate the copy of this judgment to all Regional
Committees, concerned State Governments and all affiliating bodies
and also put the some on its website for information of all
stakeholders and public at large.
F) The interim order dated 27th September, 2012 is made absolute.
75. All the writ petitions and appeals are accordingly disposed of,
however, leaving the parties to bear their own costs.
…….…………................J.
(A.K. Patnaik)
...….…………................J.
(Swatanter Kumar)
New Delhi;
December 13, 2012.
