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Judgment
Dhirendra Mishra, J.—The Petitioner has filed this petition under Article 226 of the Constitution of India and prayed for following reliefs:
10.1. The Hon''ble High Court may kindly be pleased to call for entire record pertaining to meeting of the Academic Council for the standing committee and records pertaining to recommendation of the Petitioner College for opening construct established new Education Institution.
10.2. The Hon''ble High Court may kindly be pleased to direct the Respondent No. 2 to issue a corrigendum immediately correcting the order as per the recommendations of Annexure P-4 issued by Directorate State Council for Education and Research (Annexure P-4). Respondent No. 1 University be directed to issue the affiliation to the Petitioner College.
10.3. The Hon''ble High Court may kindly be pleased to quash order (Annexure P-l).
10.4. Cost of the petition be allowed.
10.5. Any other Relief (s) which the Hon''ble High Court deems fit and proper in view of the facts and circumstances of the case, may also be granted.
Briefly stated, grievance of the Petitioner is that the Petitioner college applied for recognition for running B.Ed. Course from Notional Council for Teacher Education, Western Regional Committee, New Delhi (for short ''NCTE''), for an annual intake of 100 students on 21.10.2008. After scrutiny of the application submitted by the Petitioner, after obtaining report from the Visiting Team of NCTE and considering the recommendation of the State Government and the fact that the Committee is satisfied that the institution/society fulfills the requirements under the provisions of the National Council for Teacher Education Act, 1993 (for short ''Act, 1993''), rules and relevant regulations including the norms and standards for the SEC teacher education programme, the NCTE, in exercise of powers u/s 14(3)(a) of the Act, 1993, granted recognition/permission for conducting B.Ed. (Co-education) Course of SEC of one year duration with an annual intake of 100 (SEC) from the academic session 2009-2010 under Cause 7(11) of the NCTE (Recognition Norms & Procedure) Regulation, 2007 (for short ''Regulation 2007'') vide Annexure P-2 as per terms and conditions mentioned in the letter of recognition.
Apart from applying for recognition from NCTE, the Petitioner institution had also approached the State Government through the School Education Department, whereupon, the State Government vide its memo dated 15.4.2009 (Annexure P-3) addressed to the Regional Director, NCTE, Bhopal its recommendation as per terms mentioned in the aforesaid document. However due to inadvertent mistake in the letter of Annexure P-3, recommendation for increase of 100 students in B.Ed. Course was mentioned in place of recommendation for opening B.Ed. Course. When this mistake was pointed out by the Petitioner vide its memo dated 24.7.2009 (Annexure P-8) addressed to the Director State Council for Education & Research Training, Raipur (for short ''SCERT''), the Director vide his memo dated 29.7.2009 (Annexure P-4) addressed to the Secretary, School Education Department, requested to amend the earlier recommendation dated 15.4.2009.
Since the State Government has not accorded approval for opening new college, therefore, as per recommendation of the inspection committee of the university, the Standing Committee of the University Academic Council in its meeting dated 8.8.2009 has decided to refuse affiliation for B.Ed. Course for the academic session 2009-2010.
The Petitioner institution vide its application dated 12.8.2009 (Annexure P-7) requested for immediate fresh inspection after constituting inspection committee so that the institution could participate in the B.Ed. Counseling for the academic session 2009-10.
Respondent No. 1 - University in its reply has averred that the State Government has not granted permission to the Petitioner institution to open a new college. The application for affiliation has been rejected as per recommendation contained in the special report filed by the Inspection Committee of the University. Kanti Darshan Saikshanik Evam Computer Sansthan, a registered education society, has opened a college in the name of Kanti Darshan Mahavidhyalay'' at Bhilai with B.Ed. & B.Com. classes for which recognition has been granted by the university. The society again opened a college in the name of ''Kanti Darshan Mahila Mahavidhyalay'' with the classes of B.Com. & B.Sc. 1st year and the above course was also accorded permission. The Petitioner society again applied for affiliation for B.Ed. Course to be run by ''K.D. Mahavidhyalay Bhilai'' and the affiliation was accorded by the university. Thus, the Petitioner society is already running a teachers training course. Since the Petitioner does not have independent building, library, lab, classrooms, hall and even regular Principal has not been appointed in the college, which is necessary as per Rule 3 of the Statute-27 of the university, the request of affiliation has been refused by the university. Allegation of victimization has been denied.
The State Government in its separate return have averred that the application submitted by the Petitioner before NCTE was forwarded to SCERT, which is under Respondent No. 2, for carrying out inspection of the premises, facilities etc. and for recommendation to the NCTE, whereupon, letter dated 15.4.2009 (Annexure P-3) was issued by the State. However, subsequent to issuance of letter of Annexure P-3 a letter of Annexure P-4 was addressed to the Secretary Education Department of Respondent No. 2 and the Secretary sent corrigendum to NCTE, Bhopal. However it subsequently revealed that the Petitioner institution does not have separate building of its own. The building of Kanti Darshan Shiksha Mahavidhyalay is being shown as the building of K.D. College of Education. The Petitioner society is seeking to run two separate education colleges under the society in the same building. In these circumstances the Petitioner institution cannot be recommended for starting fresh B.Ed. Course neither its case can be recommended for increase of seats in B.Ed. Course.
Mr. Pali, learned Counsel appearing for the Petitioner institution argued that the School Education Department after due verification of the infrastructural facilities available in the Petitioner institution had recommended for opening of new B.Ed. Course in the Petitioner institution. Due to inadvertent error crept in the recommendation letter of Annexure P-3, the same was sought to be rectified vide memo of Annexure P-4 addressed by the Director, SCERT to the Secretary, School Education Department clearly mentioning that recommendation of Annexure P-3 was for,orjening B.Ed. Course in the Petitioner institution. From the return of Respondent No. 2 it is clear that the recommendation of Annexure P-3 was made after due verification by the SCERT and correction in the recommendation as proposed vide Annexure P-4, was also forwarded by the Secretary to NCTE. No fresh inspection was ever conducted by the SCERT after recommendation of Annexure P-3 & P-4 and no report has been procured in this regard and a bald statement has been made in the counter affidavit that the Petitioner institution does not have any independent building for running the college.
He further argued that document of Annexure R1-1 i.e. inspection report submitted by the inspection committee to the University clearly mentions that the Petitioner institution has necessary infrastructure for opening new B.Ed. Course however in Para-14 of the report an adverse comment has been made by the inspecting committee that ''on inspection it was found that the Petitioner institution does not have any separate building, library, lab, classrooms, hall and other facilities and even a permanent Principal has not been appointed and thus, K.D. College of Education does not have any separate building''. The observation recorded in Para-14 of the inspection report runs contrary to the earlier part of the report in which details of facilities available in the Petitioner institution has been mentioned with facts and figure.
He vehemently argued that NCTE is apex body in the matters of teacher education institution and admittedly, the NCTE has recognized/permitted the Petitioner institution to open B.Ed. Course with an intake of 100 students. From the documents of Annexure P-3 & P-4 and pleadings of the State it is manifestly clear that the State has already decided to recommend the case of the Petitioner institution for opening B.Ed. Course. It was argued that once recognition is granted by the NCTE u/s 14(6) of the Act, 1993, the University is obliged to grant affiliation to such institution and the Acts. Ordinances and Regulations of the University do not apply to such case. When the NCTE grants recognition based on the finding that the college has necessary infrastructural facilities, the university has no power or authority to decline affiliation on the ground of lack of infrastnictural facilities. If the inspection report of the university finds lack of infrastructural facilities and recognition has been obtained illegally, it may bring the same to the notice of NCTE, so that the NCTE can cancel the recognition u/s 17 of the Act, 1993. It may also challenge the recognition granted by filing an appeal u/s 18 of the Act, 1993 before the NCTE.
Mr. Dubey, learned Counsel for Respondent No. 1 argued that first thirteen paragraphs of the inspection report, in fact, have been filled-in by the Petitioner institution itself and actual finding of the inspection committee, based on the physical verification, is contained in Para-14, as in Para 1 to 13 the information provided by the Petitioner institution have been reproduced and the same are not the findings of the inspection committee.
Referring to Clauses-6 & 8 of the recognition order, it was argued that the admissions are to be given only after affiliation from the examining body in terms of Clause-8 (12) of the Regulation, 2007. The institution is required to fulfill requirements that may be prescribed by the regulatory body like UGC, affiliating university body & the State Government. Since the shortcomings pointed out by the inspection committee in para-14 are mandatory requirements under the Statute-27 & 28 of the Statute & Ordinance of the University. The Petitioner cannot claim affiliation as a matter of right, particularly when the State Government has not accorded permission for opening new B.Ed. Course.
Similar arguments were advanced by learned Counsel for Respondent No. 2.
I have heard learned Counsel for the parties.
From the averments in the return filed by the State it is clear that the application submitted by the Petitioner before NCTE was forwarded to the SCERT, which is under Respondent No. 2, for carrying out inspection of the premises, facilities etc. and sent the recommendation to NCTE. Thereafter, recommendation of Annexure P-3 was issued by the State. It is also not in dispute that inadvertent error present in the recommendation of Annexure P-3 was subsequently proposed to be rectified vide Annexure P-4 by the Director SCERT through the Secretary School Education Department who in turn forwarded the same to the NCTE. No additional document has been filed by the State to show that after sending recommendation of Annexure P-3 & P-4 any fresh inspection was conducted in the premises of the Petitioner institution.
Similarly, the university has cited the inspection report (Annexure R1-1) of the Inspecting Committee constituted by the university of the Petitioner''s premises for refusing affiliation to the Petitioner institution, however, from perusal of the report of Annexure R1-1, which has been filed by the university, we find that in Para 1 to 13 infrastructural facilities available in the institution has been detailed with facts and figure, however, at the end of the report it has been observed that the Petitioner institution does not have any separate building, library, lab, classrooms, hall and other facilities and even a permanent Principal has not been appointed. The above observation has been made without commenting upon the earlier entries in the report from Para 1 to 13.
In the matter of State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Others, the Hon''ble Supreme Court referring to its judgment in the matter of Jaya Gokul Educational Trust Vs. The Commissioner and Secretary to Government Higher Education Department, Thiruvananthapuram, Kerala State and Another, with approval has observed thus:
Therefore, the State could not have any ''policy'' outside the AICTE Act and indeed if it had a policy, it should have placed the same before AICTE and that too before the latter granted permission. Once thai procedure laid down in the AICTE Act and Regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter any fresh facts came to light after an approval was granted by AICTE or if the State felt that some conditions attached to the permission and required by AICTE to be complied with, were not complied with, then the State Government could always write to AICTE, to enable the latter to take appropriate action.
(emphasis supplied)
Referring to its earlier judgment the Hon''ble Supreme Court observed thus:
From the above decisions, in our judgment, the law appears to be very well settled. So for as coordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and the State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as the State Legislatures and appropriate Act can be made by the State Legislature subject to limitations and restrictions under the Constitution.
In the instant case, admittedly, Parliament has enacted the 1993 Act, which is in force. The preamble of the Act provides for establishment of National Council for Teacher Education (NCTE) with a view to achieving planned and coordinated development of the teacher-education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher-education system and for matters connected therewith. With a view to achieving that object, the National Council for Teacher Education has been established at four places by the Central Government. It is thus clear that the field is fully and completely occupied by an Act of Parliament and covered by Entry 66 of List I of Schedule VII. It is, therefore, not open to the State Legislature to encroach upon the said field. Parliament alone could have exercised the power by making appropriate law. In the circumstances, it is not open to the State Government to refuse permission relying on a State Act or on "policy consideration". 12. After considering various arguments put forth by the State of Maharashtra, it was finally observed that final authority lies with the NCTE and the NCTE cannot be deprived of its authority or power in taking appropriate decision under the Act irrespective of absence of no objection certificate by the State Government. Absence or non-production of NOC by the institution, therefore, was immaterial and irrelevant so far as the power of NCTE is concerned and it has been held in Para-80 that as per scheme of the Act, 1993 once recognition has been granted by NCTE u/s 14(6) of the Act, every university ("examining body") is obliged to grant affiliation to such institution and Sections 82 & 83 of the University Act do not apply to such cases.
This Court vide order dated 09.10.2009 (Annexure A-1) passed in W.P.(c) No. 4061/09 Maitri Educational and Cultural Association Bhiali v. State of C.G. and Ors. while considering the identical issue has held that unless the recognition granted to the Petitioner is stayed or set aside by the competent authority the university is bound to act u/s 14(6) of the Act, 1993. If the university, on the basis of inspection report of its inspection committee, is of the opinion that NCTE accorded recognition without essential infrastructural facilities, it has to take recourse to the remedies available to it under the Statute against the grant of recognition by NCTE by forwarding report to the NCTE with a request for withdrawal of recognition or in the alternative, may challenge the recognition, so granted, by filing appeal u/s 18 of the Act 1993.
Relying upon the decision of the Hon''ble Supreme Court in the matter of Sant Dnyaneshwar Shikshan Shastra Mahavidhyalaya it is held that it is not open to the State Government to refuse permission to open new B.Ed. Course in the Petitioner institution and the final authority lies with the NCTE. NCTE cannot be deprived of its power or authority in taking appropriate decision under the Act, 1993 irrespective of absence of NOC by the State Government.
In the result, the petition is allowed. Respondent State is directed to pass appropriate orders keeping in view its own recommendation of Annexure P-3 and the memo (Annexure P-4) of the Director, SCERT, addressed to the Secretary, School Education Department. On passing of appropriate orders by the State Government, as directed, the Respondent-University shall also comply with the mandatory provisions of Sub-section (6) of Section 14 of the Act, 1993 in the matters of grant of affiliation to the Petitioner institution.
No order as to costs.