MAA VAISHNO DEVI MAHILA MAHAVIDYALAYA Vs STATE OF U.P..
Bench: A.K. PATNAIK,SWATANTER KUMAR
Case number: W.P.(C) No.-000276-000276 / 2012
Diary number: 21761 / 2012
Advocates: GAURAV AGRAWAL Vs
C. D. SINGH
Page 1
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 1
Page 2
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)
2
Page 3
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
3
Page 4
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
submission 10.02.2012 to 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:-
4
Page 5
“(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
5
Page 6
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.
6
Page 7
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.
7
Page 8
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 8
Page 9
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
9
Page 10
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
10
Page 11
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
11
Page 12
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
12
Page 13
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
13
Page 14
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 14
Page 15
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
15
Page 16
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.
16
Page 17
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,
17
Page 18
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
18
Page 19
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 19
Page 20
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:-
“1. Lasted inspection report was not found
Deficiency is still exists there.
2. Certificate from the Bank for the payment to teachers and details
Certificate of payment of was not provided with the representation
20
Page 21
3. Affidavits and Agreement of the proposed teachers for the year 2008-2009 not provided and for
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
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.”
21
Page 22
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
22
Page 23
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.
23
Page 24
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
24
Page 25
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 10 th 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.
25
Page 26
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 10 th
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
26
Page 27
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
27
Page 28
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.
28
Page 29
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
29
Page 30
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
30
Page 31
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
31
Page 32
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
32
Page 33
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
33
Page 34
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
34
Page 35
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
35
Page 36
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
36
Page 37
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)
37
Page 38
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
38
Page 39
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
39
Page 40
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
40
Page 41
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
41
Page 42
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
42
Page 43
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.
43
Page 44
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
44
Page 45
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
45
Page 46
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
46
Page 47
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
47
Page 48
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.”
48
Page 49
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
49
Page 50
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-
50
Page 51
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,
51
Page 52
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, 52
Page 53
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
53
Page 54
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.
54
Page 55
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.”
55
Page 56
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
56
Page 57
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
57
Page 58
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
58
Page 59
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
59
Page 60
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.
60
Page 61
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
61
Page 62
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
62
Page 63
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
63
Page 64
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
64
Page 65
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
65
Page 66
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
66
Page 67
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
67
Page 68
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
68
Page 69
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.
69
Page 70
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
70
Page 71
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
71
Page 72
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
72
Page 73
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
73
Page 74
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
74
Page 75
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.
75
Page 76
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.
76
Page 77
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 10 th
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 1st September to 1st
77
Page 78
for recognition in terms of Regulation 5.4
October of the year immediately preceding the relevant academic year
2. Communication of deficiencies, shortcomings or any other discrepancy in the application submitted by the applicant to the applicant in terms of Regulation 7.1
Within 45 days from the date of receipt of the applications
3. Removal of such deficiencies by the applicant
Within 60 days from the date of receipt of communication
4. Forwarding of copy of the application to the State Government/UT Administration for its recommendations/comment s in terms of Regulation 7.2
Within 90 days from the date of receipt of the application
5. Recommendations/ comments of the State Government/UT Administration to be submitted to the Regional Committee under Regulation 7.3
Within 30 days from the date of issue of letter to it.
6. If recommendations/ comments are not received within 30 days, the Regional Committee shall send to the State Government/UT Administration a reminder letter for submission of the recommendations/ comments.
Within seven days from the date of expiry of the period of 30 days.
7. State Government/UT Administration shall furnish the recommendations/
Within 15 days from the date of receipt of such reminder letter
78
Page 79
comments 8. Intimation regarding
inspection by the Regional Committee to the applicant under Regulation 7(4)
Within 10 days from final scrutiny of the application.
9. Report by the Inspection Committee under Regulation 7(5)
20 days thereafter
10. Letter of intent to the institution with respect to grant or refusal of recognition in terms of Regulation 7.9
10th of February of the succeeding year/relevant year
11. Time to comply with certain specified conditions, in terms of Regulation 7(10) and 7(11)
20 days from the date of 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 Government/UT Administration after inspection by expert team
By 10th March of each year
15. Comments to be submitted by the State Government/UT Administration, if any
By 10th March of each year
16. Final date for issuance/grant of affiliation for the relevant academic year
By 10th March of each year
• All notices/orders/requirements/letters in terms of the
above schedule or under the provisions of the Act or 79
Page 80
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
80
Page 81
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
81
Page 82
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
82
Page 83
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
83
Page 84
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
84
Page 85
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
85
Page 86
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)
86
Page 87
...….…………................J. (Swatanter Kumar)
New Delhi; December 13, 2012.
87