1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10677-10678 OF 2018
(arising out of SLP(Civil) Nos. 13743-13744 of 2017)
NEHRU GRAM BHARATI UNIVERSITY
.....APPELLANT(S)
VERSUS
STATE OF U.P. & ORS. .....RESPONDENT(S)
W I T H
CIVIL APPEAL NOS. 10679-10680 OF 2018
(arising out of SLP(Civil) Nos. 14259-14260 of 2017)
A N D
CIVIL APPEAL NOS. 10681-10682 OF 2018
(arising out of SLP(Civil) Nos. 3480-3481 of 2018)
J U D G M E N T
A.K. SIKRI, J.
Leave granted.
2) These appeals arise out of impugned common judgment and order
dated March 31, 2017 in Special Appeal No. 1877 of 2012 and Special
Appeal No. 1878 of 2012 passed by the High Court of Judicature at
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Allahabad in Civil Misc. Writ Petition No. 57527 of 2010 (Shashi Kumar
Dwivedi & Ors. v. State of U.P. & Ors.) connected with Civil Misc. Writ
Petition No. 493 of 2012 (Chandra Prakash Kanyakubj & Ors. v. State of
U.P. & Ors.).
3) The first petition i.e. Civil Misc. Writ Petition No. 57527 of 2010 was filed
by the students who were admitted to two years Basic Teachers
Certificate Course (hereinafter referred to as the ‘BTC’ Course) in the
Academic Session 2008-09 in Nehru Gram Bharati University
(hereinafter referred to as the ‘Deemed University’) for quashing of the
order dated July 14, 2010 passed by the Director, State Council of
Educational Research and Training (hereinafter referred to as the
‘SCERT’) and further for a direction upon the SCERT to recognise the
BTC Course and the certificates granted by the Deemed University as
legal and valid for selection and appointments as teachers in
Parishadiya Vidyalayas/Junior Basic Schools.
4) Another petition i.e. Civil Misc. Writ Petition No. 493 of 2012 was filed by
the students who were admitted by the same Deemed University for two
years BTC Course in the Academic Session 2009-10. The relief prayed
for in this petition was more or less identical to the one in Civil Misc. Writ
Petition No. 57527 of 2010.
5) These writ petitions were dismissed by the single Judge of the High
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Court. Thereagainst, intra-court appeals were filed. The Division
Bench, under the impugned judgment dated March 31, 2017, has
dismissed the Special Appeals holding that the Deemed University was
not legally authorised to start the BTC Course for the Academic Session
2008-09 and 2009-10 respectively in the absence of strict compliance of
the letter of recognition dated August 16, 2005 as also in view of it
having itself asked for recognition from the examining body, i.e.
State/SCERT and recognition, in fact, was granted under the letter dated
May 29, 2013 for the Academic Session 2012-13. However, the
Division Bench took into account the plight of the students caused due
to negligence on the part of the Deemed University and, therefore,
directed that each respondent-student be paid Rs.50,000/- by the
Deemed University in addition to refund of the entire fee which was paid
for the two years BTC Course in 2008-09 and 2009-10 respectively.
The Division Bench also directed that the money be paid through
account payee cheque within two months from the date of the judgment.
6) Facts in short relevant for deciding the present appeals are as follows:
Rajiv Gandhi Post Graduate College, Kotwa, Jamunipur, Allahabad
(hereinafter referred to as the ‘Post Graduate College’) was established
by the Society, duly registered under the provisions of the Societies
Registration Act, 1860 in the name and style of Nehru Gram Bharati. It
was a Post Graduate College affiliated to Chhatrapati Shahu Ji Maharaj
4
University, Kanpur (hereinafter referred to as the ‘Kanpur University’).
The Post Graduate College made an application before the NCTE for
grant of recognition for starting two years BTC Course under the
provisions of NCTE Act. The North Regional Committee of NCTE vide
its letter dated August 16, 2005 granted permission to the Post Graduate
College under Section 15(3) of the NCTE Act for starting two years BTC
Course subject to fulfillment of the terms and conditions as contained in
the said letter. It is admitted on record that the Post Graduate College
did not take requisite steps for complying with the terms and conditions
as mentioned in the permission letter dated August 16, 2005 for years
together.
7) It so happened that the Central Government vide notification dated June
27, 2008 declared the Post Graduate College as a Deemed University
with the change of name as Nehru Gram Bharati Deemed University.
The College was deaffiliated from the Kanpur University. The Deemed
University made a request to the North Regional Committee to change
the name of the institution as mentioned in the permission letter dated
August 16, 2005. Such change in name was granted by the North
Regional Committee and communicated to the Deemed University vide
its letter dated December 02, 2008. The Deemed University is stated to
have published an advertisement inviting applications for admission to
two years BTC Course for the Academic Session 2008-09 and similarly
5
issued advertisement for the Academic Session 2009-10.
8) While the Deemed University started its process of admission to BTC
Course, it simultaneously entered into correspondence with SCERT to
grant recognition to said two years BTC Course offered by the Deemed
University as the same was reflected through the letter dated February
10, 2010 forwarded by the Deemed University to SCERT with a request
to approve the two years BTC Course and include the name of the
Deemed University in the list of approved institutions so that the
students with BTC certificate granted by the Deemed University had no
difficulty in employment as Assistant Teachers in Junior Basic Schools.
One of the students is also stated to have sent similar request to
SCERT. He was informed by the Director, SCERT vide letter dated July
14, 2010 that his papers were being returned as they did not concern
SCERT. This led to the filing of two writ petitions mentioned below:
(a) Civil Misc. Writ Petition No. 57527 of 2010 was filed by some of the
candidates who were admitted to the two years BTC Course in the
Academic Session 2008-09 in the Deemed University for quashing the
order dated July 14, 2010 passed by the Director, SCERT and for a
direction upon the SCERT to recognize the BTC Course and the
certificates awarded by the Deemed University.
(b) Civil Misc. Writ Petition No. 493 of 2010 was filed by some of the
candidates who had been granted admission by the Deemed University
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to the BTC Course in the next Academic Session 2009-10 and the relief
claimed was for a direction upon the respondents to recognize the BTC
Certificate awarded by the Deemed University so that the candidates
can be considered eligible for appointment as Assistant Teachers in the
Junior Basic Schools.
9) It is the case of the appellants that once the University acquired the
status of Deemed University, it became an ‘examining body’ under
Section 2(d) of the NCTE Act. Section 2(d) of the NCTE Act defines an
‘examining body’ to mean a University, agency or authority to which an
authority is affiliated for conducting examination in teacher education
qualification. The plea is that since it is a Deemed University and it
conducts its own examination, there was no need to seek affiliation from
any other agency. It is also pointed out that the State had taken a policy
decision dated September 21, 2006 not to permit private institutions to
run the BTC Course. The High Court of Judicature at Allahabad vide
judgment dated July 31, 2009 upheld the single Judge’s decision dated
May 08, 2007 striking down the State Government’s policy, and held that
policy makers are under an obligation to formulate a policy that is in
consonance with the law of the land and that there was no rational basis
for the monopoly of training teachers created by the State Government.
10) It may also be mentioned at this stage that on application by the
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Deemed University, the State Government vide Government order dated
May 29, 2013, granted recognition to the BTC Course offered by the
Deemed University from the Academic Session 2012-13. This order of
recognition was, however, modified vide Government order dated July
07, 2014 and it was provided that in place of Academic Session 2012-13
for the purposes of recognition of BTC Course, the same may be read
as Academic Session 2010-11 onwards. The Government order dated
July 07, 2014 has since been revoked under the Government order
dated September 27, 2016. These Government orders dated May 29,
2013, July 07, 2014 and September 27, 2016 were not subject matter of
challenge before the High Court.
11) On behalf of the students, the basic contention raised before the
Court was that once permission was granted under Section 15(3) of the
NCTE Act in favour of the Post Graduate College which was
subsequently converted into a Deemed University for starting of the two
years BTC Course, the issue of seeking affiliation/recognition from the
examining body became redundant after issuance of the notification
dated June 27, 2008 whereby the Post Graduate College was declared
as a Deemed University. It was contended that the Deemed University
has a right to conduct its own examination, therefore, no approval is
required from any authority for conduct the examinations in respect of
two years BTC Course offered by the Deemed University subsequent to
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the notification dated June 27, 2008 and in view of the law laid down by
this Court in the case of State of Maharashtra v. Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya & Ors.1
as also in view of the
Division Bench judgment of the High Court of Judicature at Allahabad in
Special Appeal No. 1639 of 2007 (State of U.P. & Ors. v. Dau Dayal
Mahila P.G. College & Ors.) decided on July 31, 2009 and in the case
of State of U.P. & Ors. v. Furqan Ali & Ors.2
.
12) The claim set up by the students was opposed by the State of
Uttar Pradesh through its Advocate General. With reference to the
notification dated June 27, 2008 itself, it was submitted that the Deemed
University could offer only such courses as were being offered
immediately before the conferment of the status of the Deemed
University or alike courses thereto. Deemed University could award
degrees only for conventional/general degree programs leading to
B.A./B.SC./B.Com or M.A./M.Sc. degrees covered under Section 22(3)
of the Universities Grants Commission Act, 1956 (hereinafter referred to
as the ‘UGC Act’). On behalf of the State, it was explained that BTC
Course is not a Degree Course nor a course recognized by the
Universities Grants Commission (UGC). Therefore, merely because the
Post Graduate College has been declared as a Deemed University, it
cannot be presumed that it gets a right to act as an examining body for
1 (2006) 9 SCC 1
2 2011 (1) ADJ 480
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BTC Course, which is not provided for or taken care of under the UGC
Act.
13) Learned Single Judge vide its common judgment dated October
11, 2012 held that it was not possible for the Court to grant the relief as
has been prayed for. Referring to the provisions of Sections 2, 3 and 4
of the Guidelines framed by the UGC under the UGC Act and to the
grant of status of Deemed University and clause 1 of the notification
dated June 27, 2008, it was held that in view of Section 22, a University
can only grant such degrees which have been specified by the UGC in
the Official Gazette and that BTC is not one of the degrees mentioned
therein. With reference to the provisions of NCTE Act and Regulations
of 2007, it was held the College, even after grant of permission by the
North Regional Committee of the NCTE, kept silent and did not take
steps for starting two years BTC course for long duration and after
confirmation of the status of the Deemed University, invited applications
for the Academic Session 2008-09 and similarly for 2009-10. Deemed
University cannot act as an examining body for the BTC Course and it
had to obtain necessary permission from the examining body, namely,
SCERT which was the examining body for the BTC course. It was
further held that the candidates were not possessed of a BTC certificate
from an institution having due authority of law to be the examining body
for the course, therefore, such certificates did not make them eligible for
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appointment as Assistant Teacher in Junior High Schools.
14) Aggrieved students filed Special Appeals before Division Bench of
the High Court. As noted above, the High Court, vide its impugned
judgment dated March 31, 2017, has dismissed the appeals and
affirmed the judgment of the learned Single Judge and directed the Post
Graduate College to refund the fees of the students and also to pay a
sum of Rs.50,000/- to each student. It has further directed that it is open
for the concerned authority of University to take appropriate action
against all those responsible for creating the situation and to recover the
money lost due to payment to the students.
15) A perusal of the impugned judgment would show that the High
Court has rested its decision on the premise that non-compliance of
statutory conditions is more or less admitted. Further, mere grant of
permission by NCTE does not amount to automatic affiliation for running
the BTC Course, until and unless the institution fulfills the norms which
are prescribed by the NCTE. The High Court also noted that it was
virtually admitted that formalities required for admission from the
examining body have not been completed and it is only now that BTC
Course is running as per the norms of NCTE. The High Court has also
observed that, on the one hand, the Deemed University claimed that
after conferment of the status of Deemed University upon the Post
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Graduate College, it became the examining body for all courses
including BTC Course, but, on the other hand, it continued to write
letters to the Director, SCERT to grant recognition to the certificate
issued by it and to include the name of the University in the list of
approved institutions for the purpose of treating its certificate to be a
valid qualification for appointment as Assistant Teachers in Junior High
Schools recognised under the U.P. Basic Education Act, 1978. In
nutshell, the High Court has held that mere grant of permission by NCTE
does not amount to automatic affiliation for running the BTC Course,
until and unless the institution fulfills the norms which are prescribed by
the NCTE. Therefore, there was no question of any recognition being
granted to a private institution upto January 15, 2010 for the BTC
Course in the State of Uttar Pradesh. Since the Deemed University was
not legally authorised to start the BTC Course for the Academic
Sessions 2008-09 and 2009-10 respectively, in the absence of strict
compliance of letter of recognition dated August 16, 2005 as also in view
of having itself asked for recognition from the examining body, the BTC
Course for these two sessions could not be treated as recognised.
16) Mr. Rakesh Dwivedi, learned senior counsel appearing for the
Deemed University, reiterated the submission which was raised before
the High Court, namely, once it was granted deemed status, it became
an examining body by itself by virtue of Section 2(n) and Section 2(d) of
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the NCTE Act. It was submitted that Section 22 of the UGC Act gives
right to a Deemed University to confer degrees which would imply that
such Deemed University would itself become an examining body by
virtue of Section 2(n) and Section 2(d) of the NCTE Act as the degree
can be awarded only by the examining body. It was also submitted that
the NCTE Act is a complete and exhaustive code for teachers education
and is made by Parliament with respect to Entry 66 List I read with Entry
25 List III. It lays down all norms and standards including qualification
for teachers and curriculum. Only examinations are to be conducted by
Universities or competent authority established by the State. So far as
Universities are concerned, they hold examinations for their students
themselves and need no affiliation. Even where an institution seeks
affiliation from State’s competent authority, the said authority cannot
have a relook at matters which are considered by NCTE while granting
recognition to the institution or course. Mr. Dwivedi also submitted that
the NCTE Regulations of 2009 which were notified vide notification
dated August 31, 2009 could not be applied in this case as Deemed
University was granted recognition by NCTE on August 16, 2005. He
submitted that relevant regulations which were applicable on that date
were of the year 2002 known as NCTE (Form of application for
recognition, the time limit of submission of application, determination of
norms and standards for recognition of teacher education programmes
13
and permission to start new course or training) Regulations, 2002
(hereinafter referred to as ‘Regulations, 2002). The Regulations, 2002
were repealed by NCTE (Recognition, Norms and Procedure)
Regulations, 2005 dated December 27, 2005. However, action already
taken under the Regulations, 2002 were protected and saved by
Regulation 11(2) of the Regulations, 2005. He submitted that the
Regulations, 2002 contemplated an NOC from the State Government at
a pre-recognition stage vide Regulation 6. Sub-clause (x) of this
Regulation dispensed with the requirement of NOC with regard to
institutions already recognized by NCTE for running a B.Ed. course.
Admittedly, the Deemed University was running B.Ed. when recognition
for BTC course was given. Therefore, the said requirement did not
apply to the Deemed University. However, this requirement of NOC has
been held by this Court to be immaterial and irrelevant, so far as the
power of NCTE is concerned, in Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya:
“63. In the instant case, admittedly, Parliament has enacted the
1993 Act, which is in force. The preamble of the Act provides for
establishment of National Council for Teacher Education (NCTE)
with a view to achieving planned and coordinated development of
the teacher-education system throughout the country, the
regulation and proper maintenance of norms and standards in the
teacher-education system and for matters connected therewith.
With a view to achieving that object, the National Council for
Teacher Education has been established at four places by the
Central Government. It is thus clear that the field is fully and
completely occupied by an Act of Parliament and covered by Entry
66 of List I of Schedule VII. It is, therefore, not open to the State
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Legislature to encroach upon the said field. Parliament alone could
have exercised the power by making appropriate law. In the
circumstances, it is not open to the State Government to refuse
permission relying on a State Act or on “policy consideration.
64. Even otherwise, in our opinion, the High Court was fully
justified in negativing the argument of the State Government that
permission could be refused by the State Government on “policy
consideration”. As already observed earlier, policy consideration
was negatived by this Court in Thirumuruga Kirupananda Trust
[(1996) 3 SCC 15 : JT (1996) 2 SC 692] as also in Jaya Gokul
Educational Trust [(2000) 5 SCC 231 : JT (2000) 5 SC 118].
xx xx xx
68. In view of the fact, however, that according to us, the final
authority lies with NCTE and we are supported in taking that view
by various decisions of this Court, NCTE cannot be deprived of its
authority or power in taking an appropriate decision under the Act
irrespective of absence of no-objection certificate by the State
Government/Union Territory. Absence or non-production of NOC
by the institution, therefore, was immaterial and irrelevant so far as
the power of NCTE is concerned.”
17) On this count, submission of Mr. Dwivedi was that the present
matters does not concern with this aspect since the said provision deals
with a pre-recognition stage and whereas these cases related to
affiliation which is post-recognition stage. The learned senior counsel
also referred to the judgments of this Court in Maa Vaishno Devi
Mahila Mahavidyalaya v. State of Uttar Pradesh & Ors.3
and State of
Rajasthan v. LBS B.Ed. College & Ors.4
.
18) Dealing with the issue of non-compliance with the conditions
contained in the recognition letter issued by NCTE, Mr. Dwivedi argued
3 (2013) 2 SCC 617
4 (2016) 16 SCC 110
15
that it is an erroneous finding. In this behalf, his submission was that, in
the first instance, the conditions contained in the letter dated August 16,
2005 of NCTE were to be complied ‘before the commencement of the
academic session’. The Deemed University had commenced its BTC
Course only in the year 2008 and, therefore, question of complying
these conditions before 2008, in any case, did not arise. Secondly, this
policy of fulfilling the conditions ceased to apply to this University once it
obtain the status of Deemed University. Thirdly, this policy was set aside
by the High Court (by the single Judge vide judgment dated May 08,
2007 which was affirmed by the Division Bench on July 31, 2009).
Therefore, argued the learned senior counsel, by the time University
commenced BTC Course in 2008, there were no such conditions which
remained to be complied. Mr. Dwivedi also argued that so far as faculty
is concerned, Deemed University through its Additional Registrar had
written a letter to NCTE on July 22, 2009 submitting a list of faculty
members for BTC, B.Ed. and M.Ed. along with minutes of selection
committee dated August 14, 2008 selecting seven teachers. These
appointments were approved by Board of Management vide resolution
dated August 25, 2008 pursuant to which appointment letters were
issued which are also placed on record. It is also important to state here
that the seven faculty members who were appointed were already
teaching in the B.Ed. course run by the predecessor of the Deemed
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University. The appellant also maintained regular attendance register
which shows that the teachers were, in fact, teaching. Similarly, vide
letter dated July 28, 2010, details of existing faculty members were sent
to NCTE 2009. Even the inspection report of the UGC Committee which
was accepted by UGC on November 19, 2009 stated that appointment
of teachers were made by following the rules and norms of UGC and
regulatory bodies from time to time. It also noted that, by and large, the
University had adequate and qualified faculty. The representative of
NCTE was satisfied with the professional development of the teachers.
In view of the above material, it is incorrect to state that the Deemed
University did not appoint faculty and that there was non-compliance by
the Deemed University.
19) As regards the Endowment Fund, argument is that the sum of Rs.5
lakhs in the form of Fixed Deposit was, in fact, deposited with the NCTE
on February 19, 2004 itself and renewed from time to time but it was to
be converted into a joint account on October 28, 2015. It is contended
that it is an admitted position that the amount of Rs.5 lakhs towards the
endowment fund was deposited by the University and the Fixed
Deposits have also been annexed in the Additional Affidavit. In view
thereof, there is substantial compliance by the Deemed University and
non-conversion into a joint account is only a minor lapse and even the
NCTE did not object to the same. This cannot be a ground for denying
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recognition of BTC Course to students of the Academic Sessions
2008-09 and 2009-10.
20) Mr. Dwivedi pleaded, in the alternative, that in the event this Court
is pleased to hold that the University required to seek affiliation from
State, the direction to refund the fees and pay further amount of
Rs.50,000/- may be set aside since it involves a huge cost of above one
crore. It was stated that the University is catering to rural masses and
such a direction will cause grave hardship. Moreover, the present is not
a case where the course was being run without recognition of NCTE.
21) Mr. Parekh, learned senior counsel appearing for the students,
while supporting the arguments raised by Mr. Dwivedi, additionally
argued that the Deemed University was not required to seek affiliation
under Section 16 of the Act as it was declared as
deemed-to-be-University under Section 2(f) of the UGC Act as per
notification dated June 27, 2008 issued by the Government of India,
Ministry of Human Resource Development, Department of Higher
Education published in Gazette of India, Part-I. Therefore, it was eligible
to conduct its own examinations and grant its own degrees. He also
referred to Section 17 of the NCTE Act which, according to him, protects
the interest of the students. On that basis, his submission was that as
the students had undertaken two years course and had been declared
18
successful after clearing examination, it is not permissible for the State
to punish the students. In equity also, nothing is attributed against the
students and their career should not affected when they have acted on
the recognition given by Section 15(3)(a) to the University. Under these
circumstances, students are entitled for recognition of their BTC
certificate in law. Mr. Parekh also submitted that insofar as students are
concerned, in any case, they are entitled to the relief because of
subsequent development, namely, UP Gazette No.
210/79-5-2018-105-2014 dated February 08, 2018, the substituted Rule
No. 8 inter alia provides as under:
“…two year Diploma in Elementary Education (by whatever name
known) in accordance with National Council of Teacher Education
(Recognition, Norms and Procedure), Regulations or any training
qualifications to be added by National Council for Teacher
Education for the recruitment of teachers in Primary Education...”
22) Learned counsel appearing for the State of Uttar Pradesh refuted
the aforesaid submissions of the Deemed University as well as students.
He drew the attention of the Court to notification dated June 27, 2008
vide which University was granted status of ‘deemed-to-be-university’
under Section 3 of the UGC Act for a period of three years with effect
from the date on which the college is deaffiliated from its affiliating
university, namely, Kanpur University. He also pointed out that it was
subject to the condition that the status conferred would be reviewed by
UGC with the help of expert committee before the expiry of three years
19
period. Further contention was that:
“The status shall be confirmed only on the basis of the
inspection and assessment report of UGC’s Expert Review
Committee and subjected to nullification of its present short
coming as pointed out by the Expert Committee.”
23) He also pointed out that copy of this notification was forwarded to
various authorities including President, Nehru Gram Bharati. While
making endorsement to the President, Nehru Gram Bharati, it was
mentioned that the notification would be further subject to conditions
which were specifically mentioned therein. As many as 14 conditions
were stipulated. Conditions (v), (vi) and (vii) which are relevant for the
purpose of this case is reproduced below:
“(v) The academic programmes being offered or to be
offered by Nehru Gram Bharati will conform to the norms and
standards prescribed by the relevant Statutory Councils such
as the UGC, AICTE etc. Nehru Gram Bharati shall not
offer/award as the case may be any degrees that are not
specified by the UGC. Nehru Gram Bharati shall also ensure
that the nomenclatures of the degrees, etc. to be awarded by it
are specified by the UGC under Section 22 of the UGC Act,
1956.
(vi) Nehru Gram Bharati shall not start new academic
courses without obtaining prior approval of Ministry of Health
and Family Welfare and/or the concerned Statutory Councils
such as MCI, AICTE etc. as the case may be.
(vii) Nehru Gram Bharati, as a deemed-to-be-university shall
award degrees in respect of the courses run by the institution
mentioned in para 4 of this notification only to those students
who are admitted subsequent to the date of this notification.
Accordingly, it shall make admission and enrolment of students
to the academic courses of the said college under it (i.e. under
Nehru Gram Bharati only with effect from the ensuing
academic year (i.e. from 2008-2009).”
24) From the aforesaid conditions, the argument of the learned
20
counsel was that the Deemed University was specifically required to
conform to the norms and standards prescribed by relevant statutory
councils. It was also categorically mentioned that the Deemed
University shall not offer/award any degrees that are not specified by the
UGC. Moreover, it was to ensure that the nomenclature of the degrees
etc. to be awarded by it are specified by the UGC under Section 22 of
the UGC Act. Based on the aforesaid conditions specified in the
notifications, argument of the learned counsel was that the Deemed
University failed to fulfill those conditions which has been recorded by
the High Court as well. He submitted that the judgment of the High
Court is correct as without the fulfillment of these conditions, it was not
open to the Deemed University to start such a course and confer the
degrees. Learned counsel referred to the judgment in the case of
Orissa Lift Irrigation Corporation Limited v. Rabi Sankar Patro &
Ors.5
.
25) Taking the aforesaid argument further, he submitted that the
Deemed University has itself stated in the writ petition filed before the
High Court that BTC Course is a Teacher Training Programme for
primary level school and NCTE grants the recognition to the Teacher
Training Programme. The right to formulate the guidelines/standards
with reference to courses run in the teacher education training
5 (2018) 1 SCC 468
21
institutions, such as the procedure for admission of the students in such
institutions, minimum qualifications for the admission, period of the
Training Programme and the determination of the course, is done by the
NCTE. After the recognition is obtained from NCTE, Section 14(6) of the
NCTE Act stipulates that every examining body, on receipt of the order
under sub-section (4) thereof, shall grant affiliation to the institution
where recognition has been granted. Further, the appendix 1 to 13
about the norms and standards of different Teacher Training
Programmes has been mentioned in para 9 of the notification dated
August 31, 2009 of NCTE. Appendix 2 is related to the course of
D.El.Ed. in the aforesaid and the provision has been made in Point 1 of
Appendix 2:
“(1) The aim of elementary education is to fulfill the basic
learning needs of all children in an inclusive school
environment bridging social and gender gaps with the active
participation of the community. The program aims at preparing
teachers for elementary stage of education that is Classes 1 to
VII/VIII.
(2) The elementary teacher education programme carries
different nomenclatures like BTC Diploma in Education, TTC
and so on. Both the duration of training and entry qualification
of the course are same, hence, nomenclature of the course
shall be same (D.El.Ed.) across all states. The copy of
Appendix 2 is marked and annexed herewith as Annexure
CA-06.”
26) He also sought sustenance from the following provision that has
been made about the admission in Point 3(3) of Appendix – 2 mentioned
above:
22
“...Admissions shall be made on merit on the basis of marks
obtained in the qualifying examination and/or in the entrance
examination or any other selection process as per the policy of
the State Government/UT Administration.”
27) The argument on the basis of the aforesaid provision was that the
admission had to be made not only on merits but ‘as per the policy of the
State Government/UT Administration’. Here, according to learned
counsel, the Deemed University faltered and, therefore, cannot seek any
benefit. The counsel for the NCTE supported the aforesaid submissions
put forth by the learned counsel for the State.
28) From the aforesaid arguments of the learned counsel for the
appellants as well as Deemed University, it becomes clear that the entire
case primarily rests upon the submission that after it became Deemed
University by virtue of notification dated June 27, 2008 issued by UGC
under Section 3 of the UGC Act, Deemed University had right to hold
examinations on its own as it became the ‘examining body’ for BTC
Course. However, as noticed above, notification dated June 27, 2008
granting status of Deemed University was subject to certain conditions.
Section 22 of UGC Act gives right upon such Deemed University to
confer degrees. However, sub-section (3) thereof defines the meaning
of degree under that provision which reads as under:
“(3) For the purposes of this section, “degree’ means any such
degree as may, with the previous approval of the Central
Government, be specified in this behalf by the Commission by
notification in the Official Gazette.”
23
29) It is clear that the right which was given to the Deemed University
to confer degrees pertain to those degrees which are specified by the
UGC in the Official Gazette. Admittedly, BTC is not one of the degrees
mentioned therein. The reason is obvious. Insofar as BTC is concerned,
it is a Teachers Training Course which was regulated entirely and
exclusively by NCTE Act and the Regulations framed therein. First thing
which follows, therefore, is that mere conferment of Deemed University
status did not entitle this University to give BTC degrees to its students.
Having regard to the same, the judgments cited by Mr. Dwivedi will have
no application to the present case.
30) This brings us to the provisions of NCTE Act and Regulations
therein. A University was granted permission by the NCTE to start two
years BTC Course vide letter dated August 16, 2005. However, this was
subject to fulfillment of eight conditions mentioned therein. These
conditions are summarised by the High Court, in the impugned
judgment, which reads as under:
“Condition 'a' required appointment of the faculty members and staff
duly qualified as per the norms of NCTE/State Government/SCERT
to be completed before the commencement of the course. It is not in
dispute that at the relevant time SCERT was the examining body for
the BTC course. Therefore, it was but necessary for the Post
Graduate Degree College to have appointed qualified teachers and
staff as per the SCERT norms read with NCTE norms.
Under clause 'b' countersigned statement of faculty members
from the Director, SCERT was required to be submitted before the
commencement of the academic session.
24
Under clause 'c' the institution had to agree to adhere to all
other regulations and guidelines as framed by NCTE from time to
time.
Under clause 'd' the institution had to within one month of the
receipt of Recognition order, convert the Endowment Fund account
into a Joint Account in the form of FDR for a period of not less than
60 months (five years) in a Nationalized Bank only to be operated
along with an official of the Regional Committee.
Under clause 'e' the Reserve Fund for an amount equalant to
three months salary of the Teachers & Staff had to be created within
one month from the date of issuance of the letter and maintained in
the form of FDR in favour of the management/institution, for a period
not less than sixty months (five years) in a Nationalized Bank.
Under clause 'f' prior permission of the competent authority
for conducting the entrance exam and approval of the curriculum for
the course had to be obtained.
Under clause 'g' it is specified that in case the institution
starts the training programme without prior permission of the
competent authority/examining body regarding the curriculum they
have adopted and conducts examination for award of
Diploma/certificate the recognition of such institution shall be
withdrawn.
Under clause 'h' it was specified that non-compliance of the
above mentioned conditions shall cause action under section 17(1)
of the NCTE Act, 1993.”
31) The High Court has concluded that many of the aforesaid
conditions were not fulfilled by the Deemed University which position
could not be disputed even before us inasmuch as non-compliance was
admitted in the supplementary affidavit filed before the High Court.
Discussion in the impugned judgment in this behalf reads as under:
“Paragraph 4 contemplated that recognition is subject to fulfillment
of all such other requirements as may be prescribed by other
regulatory bodies like SCERT/State Government etc. The institution
was obliged to submit a Self-Appraisal Report at the end of each
academic year along with a copy of the approval of affiliating
body/State Directorate of Education. It was again reiterated that any
25
violation of the above mentioned conditions or of the NCTE Act
would result in withdrawal of the recognition under the provisions of
NCTE Act.
Such non-compliance of the statutory conditions is more or
less admitted in paragraph 5 to 9 of the supplementary affidavit filed
by the Deemed University dated 5.10.2016. It is stated that under
the policy decision of the State of U.P., private colleges were not
given recognition for running of BTC course despite there being
permission by the NCTE. The issue in that regard came to be settled
under the judgment of the Division Bench of this Court dated
31.07.2009 wherein a direction was issued requiring the State
Government to formulate a policy and not to create any impediment
in running of BTC course by private institutions also who fulfill the
norms prescribed by NCTE.
It is needless to emphasize that under the same Division
Bench judgment, it has clarified that mere grant of permission by
NCTE does not amount to automatic affiliation for running the BTC
course, until and unless the institution fulfills the norms which are
prescribed by the NCTE.
From paragraph 9 of the short counter affidavit of Deemed
University, it is admitted that the State Government in terms of the
Division Bench judgment of this court took a policy decision to grant
recognition/affiliation to private institutions also for imparting training
of BTC course under Government Order dated 15.01.2010.
What logically follows is that the question of any recognition
being granted to a private institution up to 15.01.2010 for the BTC
course in the State of U.P. does not arise.
It is further admitted by the Deemed University in paragraph
20 of the same affidavit that during the transition period I.e. between
2005 to 2008, formalities as required for recognition from the
examining body had not been completed and now BTC course is
being run as per the norms of NCTE. In paragraph 21 of the same
affidavit, it is admitted that teachers were duly appointed in 2010
and onwards and entrance examination of the students was
conducted after making advertisement in the newspaper.”
32) Mr. Dwivedi has tried to argue that insofar as this University is
concerned, Regulations, 2002 applied and not Regulations, 2009. He
has submitted that Regulation 6 of Regulations, 2002 contemplated an
NOC from the State Government at a pre-condition stage and
26
sub-clause (x) of this regulation dispense with the requirement of NOC
with regard to institution already recognised by NCTE for running a
B.Ed. Course. This argument, according to us, is totally extraneous.
The case of the respondents is not about non-fulfillment of conditions
contained in Regulations, 2009 or Regulations, 2005. As noticed above,
the gravamen of the charge is that the very conditions which were laid
down by the NCTE in giving the recognition have not been fulfilled.
33) Conscious of this fact, attempt was also made by Mr. Dwivedi to
project that the findings of the High Court about the non-compliance with
the conditions contained in the recognition letter issued by NCTE is an
erroneous finding. We have already held above that merely because
the college was conferred the status of Deemed University, these
conditions did not cease to apply as BTC is not one of the degrees
mentioned in the degrees specified by the UGC in the Official Gazette
and that insofar as BTC is concerned, it would still be governed by the
NCTE Act and regulations. It would be pertinent to mention here that
the Deemed University has later on fulfilled the conditions and got
recognition from NCTE in respect of BTC Course itself but it has
happened only from the year 2012 onwards.
34) It hardly needs to be re-emphasised that insofar as issue of
non-fulfillment of conditions is concerned, the High Court has rightly
27
pointed out that it is more or less stands admitted by the Deemed
University in its supplementary affidavit dated October 5, 2016.
35) We also do not agree with the contention of Mr. Dwivedi that since
the policy of fulfilling the conditions was set aside by the single Judge of
the High Court vide judgment dated May 8, 2007 and this decision was
affirmed by the Division Bench on July 31, 2009, it no more remained an
obligation upon Deemed University to fulfill those conditions. On this
very aspect, the High Court in the impugned judgment had rightly
pointed out that in the aforesaid judgment dated July 31, 2009 rendered
by the Division Bench of the High Court, a direction was issued requiring
the State Government to formulate a policy and not to create any
impediment of running a BTC Course by private institutions also, who
fulfill the norms prescribed by NCTE. Thus, fulfillment of norms
prescribed by NCTE was necessary. The impugned judgment also
points out that the Division Bench in the aforesaid judgment dated July
31, 2009 has clarified that mere grant of permission by NCTE does not
amount to automatic affiliation for running the BTC Course, until and
unless the institution fulfills the norms which are prescribed by the
NCTE. This Deemed University had also admitted in its counter affidavit
filed before the High Court that the State Government, in terms of the
Division Bench judgment dated July 31, 2009, took a policy decision to
grant recognition/affiliations to private institutions also for imparting
28
training of BTC Course under Government order dated January 15,
2010. As a corollary, it follows that there was no question of granting
recognition to the private institutions upto January 15, 2010 for BTC
Course in the State of Uttar Pradesh. As this was the legal position
prevailing, coupled with the fact that the Deemed University approached
the NCTE/SCERT for recognition of BTC Course and is given the said
recognition only from the year 2012 onwards, the admission of students
in BTC Course for the Academic Sessions i.e. 2008-09 and 2009-10 was
not permissible and such degrees cannot be treated as validly
recognised. It may be harsh for the students who took admission in the
Academic Sessions 2008-09 and 2009-10. However, the Court cannot
countenance the position where the unrecognised course is given
imprimatur of validity only on the ground of equity. Because of this
reason itself, the High Court has awarded compensation to the students.
Therefore, we find it difficult to agree to the submissions advanced by
Mr. Parekh on behalf of the students as well.
36) In view of the aforesaid discussion, it is not possible to accede to
the request of the Deemed University to waive the order of
compensation made by the High Court. As a result, all these appeals
are bereft of any merit and are accordingly dismissed.
29
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
OCTOBER 24, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10677-10678 OF 2018
(arising out of SLP(Civil) Nos. 13743-13744 of 2017)
NEHRU GRAM BHARATI UNIVERSITY
.....APPELLANT(S)
VERSUS
STATE OF U.P. & ORS. .....RESPONDENT(S)
W I T H
CIVIL APPEAL NOS. 10679-10680 OF 2018
(arising out of SLP(Civil) Nos. 14259-14260 of 2017)
A N D
CIVIL APPEAL NOS. 10681-10682 OF 2018
(arising out of SLP(Civil) Nos. 3480-3481 of 2018)
J U D G M E N T
A.K. SIKRI, J.
Leave granted.
2) These appeals arise out of impugned common judgment and order
dated March 31, 2017 in Special Appeal No. 1877 of 2012 and Special
Appeal No. 1878 of 2012 passed by the High Court of Judicature at
2
Allahabad in Civil Misc. Writ Petition No. 57527 of 2010 (Shashi Kumar
Dwivedi & Ors. v. State of U.P. & Ors.) connected with Civil Misc. Writ
Petition No. 493 of 2012 (Chandra Prakash Kanyakubj & Ors. v. State of
U.P. & Ors.).
3) The first petition i.e. Civil Misc. Writ Petition No. 57527 of 2010 was filed
by the students who were admitted to two years Basic Teachers
Certificate Course (hereinafter referred to as the ‘BTC’ Course) in the
Academic Session 2008-09 in Nehru Gram Bharati University
(hereinafter referred to as the ‘Deemed University’) for quashing of the
order dated July 14, 2010 passed by the Director, State Council of
Educational Research and Training (hereinafter referred to as the
‘SCERT’) and further for a direction upon the SCERT to recognise the
BTC Course and the certificates granted by the Deemed University as
legal and valid for selection and appointments as teachers in
Parishadiya Vidyalayas/Junior Basic Schools.
4) Another petition i.e. Civil Misc. Writ Petition No. 493 of 2012 was filed by
the students who were admitted by the same Deemed University for two
years BTC Course in the Academic Session 2009-10. The relief prayed
for in this petition was more or less identical to the one in Civil Misc. Writ
Petition No. 57527 of 2010.
5) These writ petitions were dismissed by the single Judge of the High
3
Court. Thereagainst, intra-court appeals were filed. The Division
Bench, under the impugned judgment dated March 31, 2017, has
dismissed the Special Appeals holding that the Deemed University was
not legally authorised to start the BTC Course for the Academic Session
2008-09 and 2009-10 respectively in the absence of strict compliance of
the letter of recognition dated August 16, 2005 as also in view of it
having itself asked for recognition from the examining body, i.e.
State/SCERT and recognition, in fact, was granted under the letter dated
May 29, 2013 for the Academic Session 2012-13. However, the
Division Bench took into account the plight of the students caused due
to negligence on the part of the Deemed University and, therefore,
directed that each respondent-student be paid Rs.50,000/- by the
Deemed University in addition to refund of the entire fee which was paid
for the two years BTC Course in 2008-09 and 2009-10 respectively.
The Division Bench also directed that the money be paid through
account payee cheque within two months from the date of the judgment.
6) Facts in short relevant for deciding the present appeals are as follows:
Rajiv Gandhi Post Graduate College, Kotwa, Jamunipur, Allahabad
(hereinafter referred to as the ‘Post Graduate College’) was established
by the Society, duly registered under the provisions of the Societies
Registration Act, 1860 in the name and style of Nehru Gram Bharati. It
was a Post Graduate College affiliated to Chhatrapati Shahu Ji Maharaj
4
University, Kanpur (hereinafter referred to as the ‘Kanpur University’).
The Post Graduate College made an application before the NCTE for
grant of recognition for starting two years BTC Course under the
provisions of NCTE Act. The North Regional Committee of NCTE vide
its letter dated August 16, 2005 granted permission to the Post Graduate
College under Section 15(3) of the NCTE Act for starting two years BTC
Course subject to fulfillment of the terms and conditions as contained in
the said letter. It is admitted on record that the Post Graduate College
did not take requisite steps for complying with the terms and conditions
as mentioned in the permission letter dated August 16, 2005 for years
together.
7) It so happened that the Central Government vide notification dated June
27, 2008 declared the Post Graduate College as a Deemed University
with the change of name as Nehru Gram Bharati Deemed University.
The College was deaffiliated from the Kanpur University. The Deemed
University made a request to the North Regional Committee to change
the name of the institution as mentioned in the permission letter dated
August 16, 2005. Such change in name was granted by the North
Regional Committee and communicated to the Deemed University vide
its letter dated December 02, 2008. The Deemed University is stated to
have published an advertisement inviting applications for admission to
two years BTC Course for the Academic Session 2008-09 and similarly
5
issued advertisement for the Academic Session 2009-10.
8) While the Deemed University started its process of admission to BTC
Course, it simultaneously entered into correspondence with SCERT to
grant recognition to said two years BTC Course offered by the Deemed
University as the same was reflected through the letter dated February
10, 2010 forwarded by the Deemed University to SCERT with a request
to approve the two years BTC Course and include the name of the
Deemed University in the list of approved institutions so that the
students with BTC certificate granted by the Deemed University had no
difficulty in employment as Assistant Teachers in Junior Basic Schools.
One of the students is also stated to have sent similar request to
SCERT. He was informed by the Director, SCERT vide letter dated July
14, 2010 that his papers were being returned as they did not concern
SCERT. This led to the filing of two writ petitions mentioned below:
(a) Civil Misc. Writ Petition No. 57527 of 2010 was filed by some of the
candidates who were admitted to the two years BTC Course in the
Academic Session 2008-09 in the Deemed University for quashing the
order dated July 14, 2010 passed by the Director, SCERT and for a
direction upon the SCERT to recognize the BTC Course and the
certificates awarded by the Deemed University.
(b) Civil Misc. Writ Petition No. 493 of 2010 was filed by some of the
candidates who had been granted admission by the Deemed University
6
to the BTC Course in the next Academic Session 2009-10 and the relief
claimed was for a direction upon the respondents to recognize the BTC
Certificate awarded by the Deemed University so that the candidates
can be considered eligible for appointment as Assistant Teachers in the
Junior Basic Schools.
9) It is the case of the appellants that once the University acquired the
status of Deemed University, it became an ‘examining body’ under
Section 2(d) of the NCTE Act. Section 2(d) of the NCTE Act defines an
‘examining body’ to mean a University, agency or authority to which an
authority is affiliated for conducting examination in teacher education
qualification. The plea is that since it is a Deemed University and it
conducts its own examination, there was no need to seek affiliation from
any other agency. It is also pointed out that the State had taken a policy
decision dated September 21, 2006 not to permit private institutions to
run the BTC Course. The High Court of Judicature at Allahabad vide
judgment dated July 31, 2009 upheld the single Judge’s decision dated
May 08, 2007 striking down the State Government’s policy, and held that
policy makers are under an obligation to formulate a policy that is in
consonance with the law of the land and that there was no rational basis
for the monopoly of training teachers created by the State Government.
10) It may also be mentioned at this stage that on application by the
7
Deemed University, the State Government vide Government order dated
May 29, 2013, granted recognition to the BTC Course offered by the
Deemed University from the Academic Session 2012-13. This order of
recognition was, however, modified vide Government order dated July
07, 2014 and it was provided that in place of Academic Session 2012-13
for the purposes of recognition of BTC Course, the same may be read
as Academic Session 2010-11 onwards. The Government order dated
July 07, 2014 has since been revoked under the Government order
dated September 27, 2016. These Government orders dated May 29,
2013, July 07, 2014 and September 27, 2016 were not subject matter of
challenge before the High Court.
11) On behalf of the students, the basic contention raised before the
Court was that once permission was granted under Section 15(3) of the
NCTE Act in favour of the Post Graduate College which was
subsequently converted into a Deemed University for starting of the two
years BTC Course, the issue of seeking affiliation/recognition from the
examining body became redundant after issuance of the notification
dated June 27, 2008 whereby the Post Graduate College was declared
as a Deemed University. It was contended that the Deemed University
has a right to conduct its own examination, therefore, no approval is
required from any authority for conduct the examinations in respect of
two years BTC Course offered by the Deemed University subsequent to
8
the notification dated June 27, 2008 and in view of the law laid down by
this Court in the case of State of Maharashtra v. Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya & Ors.1
as also in view of the
Division Bench judgment of the High Court of Judicature at Allahabad in
Special Appeal No. 1639 of 2007 (State of U.P. & Ors. v. Dau Dayal
Mahila P.G. College & Ors.) decided on July 31, 2009 and in the case
of State of U.P. & Ors. v. Furqan Ali & Ors.2
.
12) The claim set up by the students was opposed by the State of
Uttar Pradesh through its Advocate General. With reference to the
notification dated June 27, 2008 itself, it was submitted that the Deemed
University could offer only such courses as were being offered
immediately before the conferment of the status of the Deemed
University or alike courses thereto. Deemed University could award
degrees only for conventional/general degree programs leading to
B.A./B.SC./B.Com or M.A./M.Sc. degrees covered under Section 22(3)
of the Universities Grants Commission Act, 1956 (hereinafter referred to
as the ‘UGC Act’). On behalf of the State, it was explained that BTC
Course is not a Degree Course nor a course recognized by the
Universities Grants Commission (UGC). Therefore, merely because the
Post Graduate College has been declared as a Deemed University, it
cannot be presumed that it gets a right to act as an examining body for
1 (2006) 9 SCC 1
2 2011 (1) ADJ 480
9
BTC Course, which is not provided for or taken care of under the UGC
Act.
13) Learned Single Judge vide its common judgment dated October
11, 2012 held that it was not possible for the Court to grant the relief as
has been prayed for. Referring to the provisions of Sections 2, 3 and 4
of the Guidelines framed by the UGC under the UGC Act and to the
grant of status of Deemed University and clause 1 of the notification
dated June 27, 2008, it was held that in view of Section 22, a University
can only grant such degrees which have been specified by the UGC in
the Official Gazette and that BTC is not one of the degrees mentioned
therein. With reference to the provisions of NCTE Act and Regulations
of 2007, it was held the College, even after grant of permission by the
North Regional Committee of the NCTE, kept silent and did not take
steps for starting two years BTC course for long duration and after
confirmation of the status of the Deemed University, invited applications
for the Academic Session 2008-09 and similarly for 2009-10. Deemed
University cannot act as an examining body for the BTC Course and it
had to obtain necessary permission from the examining body, namely,
SCERT which was the examining body for the BTC course. It was
further held that the candidates were not possessed of a BTC certificate
from an institution having due authority of law to be the examining body
for the course, therefore, such certificates did not make them eligible for
10
appointment as Assistant Teacher in Junior High Schools.
14) Aggrieved students filed Special Appeals before Division Bench of
the High Court. As noted above, the High Court, vide its impugned
judgment dated March 31, 2017, has dismissed the appeals and
affirmed the judgment of the learned Single Judge and directed the Post
Graduate College to refund the fees of the students and also to pay a
sum of Rs.50,000/- to each student. It has further directed that it is open
for the concerned authority of University to take appropriate action
against all those responsible for creating the situation and to recover the
money lost due to payment to the students.
15) A perusal of the impugned judgment would show that the High
Court has rested its decision on the premise that non-compliance of
statutory conditions is more or less admitted. Further, mere grant of
permission by NCTE does not amount to automatic affiliation for running
the BTC Course, until and unless the institution fulfills the norms which
are prescribed by the NCTE. The High Court also noted that it was
virtually admitted that formalities required for admission from the
examining body have not been completed and it is only now that BTC
Course is running as per the norms of NCTE. The High Court has also
observed that, on the one hand, the Deemed University claimed that
after conferment of the status of Deemed University upon the Post
11
Graduate College, it became the examining body for all courses
including BTC Course, but, on the other hand, it continued to write
letters to the Director, SCERT to grant recognition to the certificate
issued by it and to include the name of the University in the list of
approved institutions for the purpose of treating its certificate to be a
valid qualification for appointment as Assistant Teachers in Junior High
Schools recognised under the U.P. Basic Education Act, 1978. In
nutshell, the High Court has held that mere grant of permission by NCTE
does not amount to automatic affiliation for running the BTC Course,
until and unless the institution fulfills the norms which are prescribed by
the NCTE. Therefore, there was no question of any recognition being
granted to a private institution upto January 15, 2010 for the BTC
Course in the State of Uttar Pradesh. Since the Deemed University was
not legally authorised to start the BTC Course for the Academic
Sessions 2008-09 and 2009-10 respectively, in the absence of strict
compliance of letter of recognition dated August 16, 2005 as also in view
of having itself asked for recognition from the examining body, the BTC
Course for these two sessions could not be treated as recognised.
16) Mr. Rakesh Dwivedi, learned senior counsel appearing for the
Deemed University, reiterated the submission which was raised before
the High Court, namely, once it was granted deemed status, it became
an examining body by itself by virtue of Section 2(n) and Section 2(d) of
12
the NCTE Act. It was submitted that Section 22 of the UGC Act gives
right to a Deemed University to confer degrees which would imply that
such Deemed University would itself become an examining body by
virtue of Section 2(n) and Section 2(d) of the NCTE Act as the degree
can be awarded only by the examining body. It was also submitted that
the NCTE Act is a complete and exhaustive code for teachers education
and is made by Parliament with respect to Entry 66 List I read with Entry
25 List III. It lays down all norms and standards including qualification
for teachers and curriculum. Only examinations are to be conducted by
Universities or competent authority established by the State. So far as
Universities are concerned, they hold examinations for their students
themselves and need no affiliation. Even where an institution seeks
affiliation from State’s competent authority, the said authority cannot
have a relook at matters which are considered by NCTE while granting
recognition to the institution or course. Mr. Dwivedi also submitted that
the NCTE Regulations of 2009 which were notified vide notification
dated August 31, 2009 could not be applied in this case as Deemed
University was granted recognition by NCTE on August 16, 2005. He
submitted that relevant regulations which were applicable on that date
were of the year 2002 known as NCTE (Form of application for
recognition, the time limit of submission of application, determination of
norms and standards for recognition of teacher education programmes
13
and permission to start new course or training) Regulations, 2002
(hereinafter referred to as ‘Regulations, 2002). The Regulations, 2002
were repealed by NCTE (Recognition, Norms and Procedure)
Regulations, 2005 dated December 27, 2005. However, action already
taken under the Regulations, 2002 were protected and saved by
Regulation 11(2) of the Regulations, 2005. He submitted that the
Regulations, 2002 contemplated an NOC from the State Government at
a pre-recognition stage vide Regulation 6. Sub-clause (x) of this
Regulation dispensed with the requirement of NOC with regard to
institutions already recognized by NCTE for running a B.Ed. course.
Admittedly, the Deemed University was running B.Ed. when recognition
for BTC course was given. Therefore, the said requirement did not
apply to the Deemed University. However, this requirement of NOC has
been held by this Court to be immaterial and irrelevant, so far as the
power of NCTE is concerned, in Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya:
“63. In the instant case, admittedly, Parliament has enacted the
1993 Act, which is in force. The preamble of the Act provides for
establishment of National Council for Teacher Education (NCTE)
with a view to achieving planned and coordinated development of
the teacher-education system throughout the country, the
regulation and proper maintenance of norms and standards in the
teacher-education system and for matters connected therewith.
With a view to achieving that object, the National Council for
Teacher Education has been established at four places by the
Central Government. It is thus clear that the field is fully and
completely occupied by an Act of Parliament and covered by Entry
66 of List I of Schedule VII. It is, therefore, not open to the State
14
Legislature to encroach upon the said field. Parliament alone could
have exercised the power by making appropriate law. In the
circumstances, it is not open to the State Government to refuse
permission relying on a State Act or on “policy consideration.
64. Even otherwise, in our opinion, the High Court was fully
justified in negativing the argument of the State Government that
permission could be refused by the State Government on “policy
consideration”. As already observed earlier, policy consideration
was negatived by this Court in Thirumuruga Kirupananda Trust
[(1996) 3 SCC 15 : JT (1996) 2 SC 692] as also in Jaya Gokul
Educational Trust [(2000) 5 SCC 231 : JT (2000) 5 SC 118].
xx xx xx
68. In view of the fact, however, that according to us, the final
authority lies with NCTE and we are supported in taking that view
by various decisions of this Court, NCTE cannot be deprived of its
authority or power in taking an appropriate decision under the Act
irrespective of absence of no-objection certificate by the State
Government/Union Territory. Absence or non-production of NOC
by the institution, therefore, was immaterial and irrelevant so far as
the power of NCTE is concerned.”
17) On this count, submission of Mr. Dwivedi was that the present
matters does not concern with this aspect since the said provision deals
with a pre-recognition stage and whereas these cases related to
affiliation which is post-recognition stage. The learned senior counsel
also referred to the judgments of this Court in Maa Vaishno Devi
Mahila Mahavidyalaya v. State of Uttar Pradesh & Ors.3
and State of
Rajasthan v. LBS B.Ed. College & Ors.4
.
18) Dealing with the issue of non-compliance with the conditions
contained in the recognition letter issued by NCTE, Mr. Dwivedi argued
3 (2013) 2 SCC 617
4 (2016) 16 SCC 110
15
that it is an erroneous finding. In this behalf, his submission was that, in
the first instance, the conditions contained in the letter dated August 16,
2005 of NCTE were to be complied ‘before the commencement of the
academic session’. The Deemed University had commenced its BTC
Course only in the year 2008 and, therefore, question of complying
these conditions before 2008, in any case, did not arise. Secondly, this
policy of fulfilling the conditions ceased to apply to this University once it
obtain the status of Deemed University. Thirdly, this policy was set aside
by the High Court (by the single Judge vide judgment dated May 08,
2007 which was affirmed by the Division Bench on July 31, 2009).
Therefore, argued the learned senior counsel, by the time University
commenced BTC Course in 2008, there were no such conditions which
remained to be complied. Mr. Dwivedi also argued that so far as faculty
is concerned, Deemed University through its Additional Registrar had
written a letter to NCTE on July 22, 2009 submitting a list of faculty
members for BTC, B.Ed. and M.Ed. along with minutes of selection
committee dated August 14, 2008 selecting seven teachers. These
appointments were approved by Board of Management vide resolution
dated August 25, 2008 pursuant to which appointment letters were
issued which are also placed on record. It is also important to state here
that the seven faculty members who were appointed were already
teaching in the B.Ed. course run by the predecessor of the Deemed
16
University. The appellant also maintained regular attendance register
which shows that the teachers were, in fact, teaching. Similarly, vide
letter dated July 28, 2010, details of existing faculty members were sent
to NCTE 2009. Even the inspection report of the UGC Committee which
was accepted by UGC on November 19, 2009 stated that appointment
of teachers were made by following the rules and norms of UGC and
regulatory bodies from time to time. It also noted that, by and large, the
University had adequate and qualified faculty. The representative of
NCTE was satisfied with the professional development of the teachers.
In view of the above material, it is incorrect to state that the Deemed
University did not appoint faculty and that there was non-compliance by
the Deemed University.
19) As regards the Endowment Fund, argument is that the sum of Rs.5
lakhs in the form of Fixed Deposit was, in fact, deposited with the NCTE
on February 19, 2004 itself and renewed from time to time but it was to
be converted into a joint account on October 28, 2015. It is contended
that it is an admitted position that the amount of Rs.5 lakhs towards the
endowment fund was deposited by the University and the Fixed
Deposits have also been annexed in the Additional Affidavit. In view
thereof, there is substantial compliance by the Deemed University and
non-conversion into a joint account is only a minor lapse and even the
NCTE did not object to the same. This cannot be a ground for denying
17
recognition of BTC Course to students of the Academic Sessions
2008-09 and 2009-10.
20) Mr. Dwivedi pleaded, in the alternative, that in the event this Court
is pleased to hold that the University required to seek affiliation from
State, the direction to refund the fees and pay further amount of
Rs.50,000/- may be set aside since it involves a huge cost of above one
crore. It was stated that the University is catering to rural masses and
such a direction will cause grave hardship. Moreover, the present is not
a case where the course was being run without recognition of NCTE.
21) Mr. Parekh, learned senior counsel appearing for the students,
while supporting the arguments raised by Mr. Dwivedi, additionally
argued that the Deemed University was not required to seek affiliation
under Section 16 of the Act as it was declared as
deemed-to-be-University under Section 2(f) of the UGC Act as per
notification dated June 27, 2008 issued by the Government of India,
Ministry of Human Resource Development, Department of Higher
Education published in Gazette of India, Part-I. Therefore, it was eligible
to conduct its own examinations and grant its own degrees. He also
referred to Section 17 of the NCTE Act which, according to him, protects
the interest of the students. On that basis, his submission was that as
the students had undertaken two years course and had been declared
18
successful after clearing examination, it is not permissible for the State
to punish the students. In equity also, nothing is attributed against the
students and their career should not affected when they have acted on
the recognition given by Section 15(3)(a) to the University. Under these
circumstances, students are entitled for recognition of their BTC
certificate in law. Mr. Parekh also submitted that insofar as students are
concerned, in any case, they are entitled to the relief because of
subsequent development, namely, UP Gazette No.
210/79-5-2018-105-2014 dated February 08, 2018, the substituted Rule
No. 8 inter alia provides as under:
“…two year Diploma in Elementary Education (by whatever name
known) in accordance with National Council of Teacher Education
(Recognition, Norms and Procedure), Regulations or any training
qualifications to be added by National Council for Teacher
Education for the recruitment of teachers in Primary Education...”
22) Learned counsel appearing for the State of Uttar Pradesh refuted
the aforesaid submissions of the Deemed University as well as students.
He drew the attention of the Court to notification dated June 27, 2008
vide which University was granted status of ‘deemed-to-be-university’
under Section 3 of the UGC Act for a period of three years with effect
from the date on which the college is deaffiliated from its affiliating
university, namely, Kanpur University. He also pointed out that it was
subject to the condition that the status conferred would be reviewed by
UGC with the help of expert committee before the expiry of three years
19
period. Further contention was that:
“The status shall be confirmed only on the basis of the
inspection and assessment report of UGC’s Expert Review
Committee and subjected to nullification of its present short
coming as pointed out by the Expert Committee.”
23) He also pointed out that copy of this notification was forwarded to
various authorities including President, Nehru Gram Bharati. While
making endorsement to the President, Nehru Gram Bharati, it was
mentioned that the notification would be further subject to conditions
which were specifically mentioned therein. As many as 14 conditions
were stipulated. Conditions (v), (vi) and (vii) which are relevant for the
purpose of this case is reproduced below:
“(v) The academic programmes being offered or to be
offered by Nehru Gram Bharati will conform to the norms and
standards prescribed by the relevant Statutory Councils such
as the UGC, AICTE etc. Nehru Gram Bharati shall not
offer/award as the case may be any degrees that are not
specified by the UGC. Nehru Gram Bharati shall also ensure
that the nomenclatures of the degrees, etc. to be awarded by it
are specified by the UGC under Section 22 of the UGC Act,
1956.
(vi) Nehru Gram Bharati shall not start new academic
courses without obtaining prior approval of Ministry of Health
and Family Welfare and/or the concerned Statutory Councils
such as MCI, AICTE etc. as the case may be.
(vii) Nehru Gram Bharati, as a deemed-to-be-university shall
award degrees in respect of the courses run by the institution
mentioned in para 4 of this notification only to those students
who are admitted subsequent to the date of this notification.
Accordingly, it shall make admission and enrolment of students
to the academic courses of the said college under it (i.e. under
Nehru Gram Bharati only with effect from the ensuing
academic year (i.e. from 2008-2009).”
24) From the aforesaid conditions, the argument of the learned
20
counsel was that the Deemed University was specifically required to
conform to the norms and standards prescribed by relevant statutory
councils. It was also categorically mentioned that the Deemed
University shall not offer/award any degrees that are not specified by the
UGC. Moreover, it was to ensure that the nomenclature of the degrees
etc. to be awarded by it are specified by the UGC under Section 22 of
the UGC Act. Based on the aforesaid conditions specified in the
notifications, argument of the learned counsel was that the Deemed
University failed to fulfill those conditions which has been recorded by
the High Court as well. He submitted that the judgment of the High
Court is correct as without the fulfillment of these conditions, it was not
open to the Deemed University to start such a course and confer the
degrees. Learned counsel referred to the judgment in the case of
Orissa Lift Irrigation Corporation Limited v. Rabi Sankar Patro &
Ors.5
.
25) Taking the aforesaid argument further, he submitted that the
Deemed University has itself stated in the writ petition filed before the
High Court that BTC Course is a Teacher Training Programme for
primary level school and NCTE grants the recognition to the Teacher
Training Programme. The right to formulate the guidelines/standards
with reference to courses run in the teacher education training
5 (2018) 1 SCC 468
21
institutions, such as the procedure for admission of the students in such
institutions, minimum qualifications for the admission, period of the
Training Programme and the determination of the course, is done by the
NCTE. After the recognition is obtained from NCTE, Section 14(6) of the
NCTE Act stipulates that every examining body, on receipt of the order
under sub-section (4) thereof, shall grant affiliation to the institution
where recognition has been granted. Further, the appendix 1 to 13
about the norms and standards of different Teacher Training
Programmes has been mentioned in para 9 of the notification dated
August 31, 2009 of NCTE. Appendix 2 is related to the course of
D.El.Ed. in the aforesaid and the provision has been made in Point 1 of
Appendix 2:
“(1) The aim of elementary education is to fulfill the basic
learning needs of all children in an inclusive school
environment bridging social and gender gaps with the active
participation of the community. The program aims at preparing
teachers for elementary stage of education that is Classes 1 to
VII/VIII.
(2) The elementary teacher education programme carries
different nomenclatures like BTC Diploma in Education, TTC
and so on. Both the duration of training and entry qualification
of the course are same, hence, nomenclature of the course
shall be same (D.El.Ed.) across all states. The copy of
Appendix 2 is marked and annexed herewith as Annexure
CA-06.”
26) He also sought sustenance from the following provision that has
been made about the admission in Point 3(3) of Appendix – 2 mentioned
above:
22
“...Admissions shall be made on merit on the basis of marks
obtained in the qualifying examination and/or in the entrance
examination or any other selection process as per the policy of
the State Government/UT Administration.”
27) The argument on the basis of the aforesaid provision was that the
admission had to be made not only on merits but ‘as per the policy of the
State Government/UT Administration’. Here, according to learned
counsel, the Deemed University faltered and, therefore, cannot seek any
benefit. The counsel for the NCTE supported the aforesaid submissions
put forth by the learned counsel for the State.
28) From the aforesaid arguments of the learned counsel for the
appellants as well as Deemed University, it becomes clear that the entire
case primarily rests upon the submission that after it became Deemed
University by virtue of notification dated June 27, 2008 issued by UGC
under Section 3 of the UGC Act, Deemed University had right to hold
examinations on its own as it became the ‘examining body’ for BTC
Course. However, as noticed above, notification dated June 27, 2008
granting status of Deemed University was subject to certain conditions.
Section 22 of UGC Act gives right upon such Deemed University to
confer degrees. However, sub-section (3) thereof defines the meaning
of degree under that provision which reads as under:
“(3) For the purposes of this section, “degree’ means any such
degree as may, with the previous approval of the Central
Government, be specified in this behalf by the Commission by
notification in the Official Gazette.”
23
29) It is clear that the right which was given to the Deemed University
to confer degrees pertain to those degrees which are specified by the
UGC in the Official Gazette. Admittedly, BTC is not one of the degrees
mentioned therein. The reason is obvious. Insofar as BTC is concerned,
it is a Teachers Training Course which was regulated entirely and
exclusively by NCTE Act and the Regulations framed therein. First thing
which follows, therefore, is that mere conferment of Deemed University
status did not entitle this University to give BTC degrees to its students.
Having regard to the same, the judgments cited by Mr. Dwivedi will have
no application to the present case.
30) This brings us to the provisions of NCTE Act and Regulations
therein. A University was granted permission by the NCTE to start two
years BTC Course vide letter dated August 16, 2005. However, this was
subject to fulfillment of eight conditions mentioned therein. These
conditions are summarised by the High Court, in the impugned
judgment, which reads as under:
“Condition 'a' required appointment of the faculty members and staff
duly qualified as per the norms of NCTE/State Government/SCERT
to be completed before the commencement of the course. It is not in
dispute that at the relevant time SCERT was the examining body for
the BTC course. Therefore, it was but necessary for the Post
Graduate Degree College to have appointed qualified teachers and
staff as per the SCERT norms read with NCTE norms.
Under clause 'b' countersigned statement of faculty members
from the Director, SCERT was required to be submitted before the
commencement of the academic session.
24
Under clause 'c' the institution had to agree to adhere to all
other regulations and guidelines as framed by NCTE from time to
time.
Under clause 'd' the institution had to within one month of the
receipt of Recognition order, convert the Endowment Fund account
into a Joint Account in the form of FDR for a period of not less than
60 months (five years) in a Nationalized Bank only to be operated
along with an official of the Regional Committee.
Under clause 'e' the Reserve Fund for an amount equalant to
three months salary of the Teachers & Staff had to be created within
one month from the date of issuance of the letter and maintained in
the form of FDR in favour of the management/institution, for a period
not less than sixty months (five years) in a Nationalized Bank.
Under clause 'f' prior permission of the competent authority
for conducting the entrance exam and approval of the curriculum for
the course had to be obtained.
Under clause 'g' it is specified that in case the institution
starts the training programme without prior permission of the
competent authority/examining body regarding the curriculum they
have adopted and conducts examination for award of
Diploma/certificate the recognition of such institution shall be
withdrawn.
Under clause 'h' it was specified that non-compliance of the
above mentioned conditions shall cause action under section 17(1)
of the NCTE Act, 1993.”
31) The High Court has concluded that many of the aforesaid
conditions were not fulfilled by the Deemed University which position
could not be disputed even before us inasmuch as non-compliance was
admitted in the supplementary affidavit filed before the High Court.
Discussion in the impugned judgment in this behalf reads as under:
“Paragraph 4 contemplated that recognition is subject to fulfillment
of all such other requirements as may be prescribed by other
regulatory bodies like SCERT/State Government etc. The institution
was obliged to submit a Self-Appraisal Report at the end of each
academic year along with a copy of the approval of affiliating
body/State Directorate of Education. It was again reiterated that any
25
violation of the above mentioned conditions or of the NCTE Act
would result in withdrawal of the recognition under the provisions of
NCTE Act.
Such non-compliance of the statutory conditions is more or
less admitted in paragraph 5 to 9 of the supplementary affidavit filed
by the Deemed University dated 5.10.2016. It is stated that under
the policy decision of the State of U.P., private colleges were not
given recognition for running of BTC course despite there being
permission by the NCTE. The issue in that regard came to be settled
under the judgment of the Division Bench of this Court dated
31.07.2009 wherein a direction was issued requiring the State
Government to formulate a policy and not to create any impediment
in running of BTC course by private institutions also who fulfill the
norms prescribed by NCTE.
It is needless to emphasize that under the same Division
Bench judgment, it has clarified that mere grant of permission by
NCTE does not amount to automatic affiliation for running the BTC
course, until and unless the institution fulfills the norms which are
prescribed by the NCTE.
From paragraph 9 of the short counter affidavit of Deemed
University, it is admitted that the State Government in terms of the
Division Bench judgment of this court took a policy decision to grant
recognition/affiliation to private institutions also for imparting training
of BTC course under Government Order dated 15.01.2010.
What logically follows is that the question of any recognition
being granted to a private institution up to 15.01.2010 for the BTC
course in the State of U.P. does not arise.
It is further admitted by the Deemed University in paragraph
20 of the same affidavit that during the transition period I.e. between
2005 to 2008, formalities as required for recognition from the
examining body had not been completed and now BTC course is
being run as per the norms of NCTE. In paragraph 21 of the same
affidavit, it is admitted that teachers were duly appointed in 2010
and onwards and entrance examination of the students was
conducted after making advertisement in the newspaper.”
32) Mr. Dwivedi has tried to argue that insofar as this University is
concerned, Regulations, 2002 applied and not Regulations, 2009. He
has submitted that Regulation 6 of Regulations, 2002 contemplated an
NOC from the State Government at a pre-condition stage and
26
sub-clause (x) of this regulation dispense with the requirement of NOC
with regard to institution already recognised by NCTE for running a
B.Ed. Course. This argument, according to us, is totally extraneous.
The case of the respondents is not about non-fulfillment of conditions
contained in Regulations, 2009 or Regulations, 2005. As noticed above,
the gravamen of the charge is that the very conditions which were laid
down by the NCTE in giving the recognition have not been fulfilled.
33) Conscious of this fact, attempt was also made by Mr. Dwivedi to
project that the findings of the High Court about the non-compliance with
the conditions contained in the recognition letter issued by NCTE is an
erroneous finding. We have already held above that merely because
the college was conferred the status of Deemed University, these
conditions did not cease to apply as BTC is not one of the degrees
mentioned in the degrees specified by the UGC in the Official Gazette
and that insofar as BTC is concerned, it would still be governed by the
NCTE Act and regulations. It would be pertinent to mention here that
the Deemed University has later on fulfilled the conditions and got
recognition from NCTE in respect of BTC Course itself but it has
happened only from the year 2012 onwards.
34) It hardly needs to be re-emphasised that insofar as issue of
non-fulfillment of conditions is concerned, the High Court has rightly
27
pointed out that it is more or less stands admitted by the Deemed
University in its supplementary affidavit dated October 5, 2016.
35) We also do not agree with the contention of Mr. Dwivedi that since
the policy of fulfilling the conditions was set aside by the single Judge of
the High Court vide judgment dated May 8, 2007 and this decision was
affirmed by the Division Bench on July 31, 2009, it no more remained an
obligation upon Deemed University to fulfill those conditions. On this
very aspect, the High Court in the impugned judgment had rightly
pointed out that in the aforesaid judgment dated July 31, 2009 rendered
by the Division Bench of the High Court, a direction was issued requiring
the State Government to formulate a policy and not to create any
impediment of running a BTC Course by private institutions also, who
fulfill the norms prescribed by NCTE. Thus, fulfillment of norms
prescribed by NCTE was necessary. The impugned judgment also
points out that the Division Bench in the aforesaid judgment dated July
31, 2009 has clarified that mere grant of permission by NCTE does not
amount to automatic affiliation for running the BTC Course, until and
unless the institution fulfills the norms which are prescribed by the
NCTE. This Deemed University had also admitted in its counter affidavit
filed before the High Court that the State Government, in terms of the
Division Bench judgment dated July 31, 2009, took a policy decision to
grant recognition/affiliations to private institutions also for imparting
28
training of BTC Course under Government order dated January 15,
2010. As a corollary, it follows that there was no question of granting
recognition to the private institutions upto January 15, 2010 for BTC
Course in the State of Uttar Pradesh. As this was the legal position
prevailing, coupled with the fact that the Deemed University approached
the NCTE/SCERT for recognition of BTC Course and is given the said
recognition only from the year 2012 onwards, the admission of students
in BTC Course for the Academic Sessions i.e. 2008-09 and 2009-10 was
not permissible and such degrees cannot be treated as validly
recognised. It may be harsh for the students who took admission in the
Academic Sessions 2008-09 and 2009-10. However, the Court cannot
countenance the position where the unrecognised course is given
imprimatur of validity only on the ground of equity. Because of this
reason itself, the High Court has awarded compensation to the students.
Therefore, we find it difficult to agree to the submissions advanced by
Mr. Parekh on behalf of the students as well.
36) In view of the aforesaid discussion, it is not possible to accede to
the request of the Deemed University to waive the order of
compensation made by the High Court. As a result, all these appeals
are bereft of any merit and are accordingly dismissed.
29
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
OCTOBER 24, 2018.
