IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.04.2011 CORAM: THE HONOURABLE MR. JUSTICE D. MURUGESAN AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.A.No.1471 of 2008 M.P.No.1 of 2008 Self Financing Private Teacher Training Institutes Assocation (Regd.) Rep.by its President Mr.T.V.K.Babu New No.11, Old No.7 3rd Cross Street C.I.T. Nagar Chennai – 600 035. ..Appellant/ Petitioner -Vs.- 1. The State of Tamil Nadu Rep.by its Secretary to Government School Education Department Fort St. George Chennai-600 009. 2. The Director of Teacher Education Research and Training Government of Tamil Nadu D.P.I. Campus, Chennai-600 006. 3. The National Council for Teacher Education Rep.by its Member Secretary Hans Bhavan, Wing II New Delhi – 110 002. 4. The Regional Director National Council for Teacher Education Southern Regional Committee First Floor, C.S.D. Complex H.M.T. Township Bangalore – 31. ..Respondents https://hcservices.ecourts.gov.in/hcservices/ Prayer:- Writ Appeal against the order dated 28.10.2008 in W.P.No.25182 of 2008 on the file of this Court. W.P.No.25182/08:- Petition presented under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus to calling for the records in respect of the impugned Government Order in G.O.Ms.No. 94 School Education (U1) Department dated 3.5.2008 issued by the 1st respondent and quash the same as ultra vires to the Constitution void unlawful arbitrary without jurisdiction in so far as it relates to the members of the petitioner is concerned. For Appellant : Mr.R.Muthukumarasamy Senior Counsel for Mr.R.Suresh Kumar For Respondents : Mr.P. Wilson Additional Advocate General assisted by Mr.G.Sankaran Special Government Pleader and Ms. Dhakshyani Reddy Additional Government Pleader for RR.1 and 2 Mr.K.Ramakrishna Reddy for RR3 and 4 -------- J U D G M E N T K.K.SASIDHARAN, J The substantial question which arises for determination in this writ appeal is whether the State being the affiliating body, can refuse affiliation with reference to any of the factors which have been considered by the National Council for Teacher Education while granting recognition to the Private Self Financing Teacher Training Institutes. 2.The writ appeal, at the instance of the Self-Financing Private Teacher Training Institutes Association, Chennai, challenges the order dated 28 October 2008 in W.P.No.25182 of 2008 whereby and whereunder, the learned Single Judge negatived the challenge made to the Government Order in G.O.Ms.No.94 dated 3 May 2008 prescribing regulations for the purpose of granting Affiliation to the Teacher Training Institutes. https://hcservices.ecourts.gov.in/hcservices/ The relevant facts: 3.The appellant is a registered association formed by the Self-Financing Private Teacher Training Institutes. The association was formed for the purpose of promoting the cause of Teacher Training Institutes in the State of Tamil Nadu and to safeguard the interest of individual members. 4.The members of the association after obtaining recognition from the National Council for Teacher Education to conduct Teacher Training Course leading to Diploma in Teacher Education, obtained permission from the Director of Teacher Education, Research and Training so as to enable the students to appear for the Diploma in Teacher Education Examination conducted by the said authority. 5.While so, the State of Tamil Nadu issued an order in G.O.Ms.No.94, School Education (U1) Department dated 3 May 2008 prescribing certain guidelines in the matter of grant of Affiliation. The said Government Order was made applicable to new institutions as well as to the existing institutions. The Government Order was challenged by the appellants and the individual institutions on various grounds. The Principal grounds as found in the affidavit filed in support of the Writ Petition in W.P.No.25182 of 2008 reads thus: (a) The impugned Government Order issued in exercise of the Executive Power of the State Government is traceable to Article 162 of the Constitution of India. Since the field is already occupied by the Central Legislation, the Government have no authority either to pass a Legislation or to issue an Executive Order. (b) The National Council for Teacher Education Act 1993 (hereinafter referred to as "NCTE Act") has been enacted by the Indian Parliament under its law making power as provided under Article 245 of the Constitution of India. The Parliament has enacted NCTE Act to provide for the establishment of National Council for Teacher Education with a view to achieve planned and co-ordinated development of Teacher Education System throughout the Country. (c) Though education is included under Entry 25 of List III, otherwise known as Concurrent List, the State has no authority to issue the Executive Order as the field is occupied by a Central Legislation. (d) Section 14 of the NCTE Act gives authority to the Regional Committee of National Council for Teacher Education to grant recognition. Therefore, it was not open to the State to frame Regulations for the purpose of inspecting the instructional and infrastructural facilities, as the same has already been inspected by the National Council for Teacher Education before granting recognition. https://hcservices.ecourts.gov.in/hcservices/ (e) The Executive Power under Article 162 of the Constitution of India is not available in respect of a subject, which is already covered by a Central Legislation. (f) Instructional and Infrastructural facilities to be acquired by an institute imparting Teacher Education relates to the standards of education and therefore, that comes totally within Entry 66 of List-I of Schedule VII of the Constitution. (g)Since the very standard of education in the field of Teacher Education is completely covered under Entry – 66 within the domain of the Central Authority, inroading and encroaching upon in the said field is totally prohibited. (h) The State Government wanted to take away the power from the National Council for Teacher Education by assuming themselves the power to deal with the Teacher Education Institutions, including power of inspection, verification of norms and standards, infrastructural and instructional facilities and to monitor the functioning of concerned institutions. If all these functions and powers are usurped by the State Government without any Legislation, the very enactment made by the Parliament under Schedule VII of the Constitution of India becomes totally meaningless. (i) The State cannot be treated as an Affiliating Body as the very "Affiliation" used under Section 2(d) and 14(6) is relatable to an independent Affiliating Body like University. This distinction is possible because the University has been created either by an Act of Parliament or by an Act of Legislature. (j) The Universities are specially empowered to grant affiliations to the institutions for the purpose of admission into examinations and awarding degree. However, the Director of Teacher Education, Research and Training is only an administrative head of a department and it was not created by any Legislation for the purpose of granting affiliation. Therefore, the Government cannot issue Regulations treating it as an Affiliating Body. The Defence 6.The Joint Secretary to Government, School Education Department filed a counter affidavit in all the writ petitions. The substantial contentions raised in the counter affidavit reads thus: (a) The Examining Body is vested with the power of granting affiliation to the recognised Teacher Training Institutes. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the Government was well within its authority to frame guidelines in the matter of granting affiliation. (b) Ever since the implementation of NCTE Act, no guidelines were framed with regard to the grant of affiliation to Private Teacher Training Institutes. The said mistake was repeatedly pointed out by the High Court in a number of cases and therefore, it has become necessary to the State Government to frame guidelines for grant of affiliation to the Self Financing Teacher Training Institutes. (c) The inspection conducted by the Examining Body found that the institutions were housed in asbestos roofed, tiled roofed and thatched roofed buildings and in certain cases institutions were found running in Marriage Halls and Residential Houses. Therefore, the Government was constrained to issue guidelines to ensure that the institutions are run in strict conformity with the provisions of NCTE Act. The Judge's reasoning: 7.The learned Judge rejected the contentions raised by the appellant and other writ petitioners mainly on the following grounds: (a) The impugned Government Order has been issued within the four corners of Law by the State and it does not suffer from any constitutional infringement of the Centre's powers. (b) There is no repugnancy in the matter, inasmuch as the Government Order does not encroach upon the field occupied by the Central Legislation. (c) Since the State has power to grant affiliation only on fulfillment of conditions of recognition indicated by NCTE, it cannot act like a rubber stamp. (d) In the matter of Teacher Training Institutes, the NCTE and the State authorities will have to co-exist in the interest of academic excellence and to prevent mushroom growth of fly by night institutes. (e) This State Government which will have to bore the brunt of anger of the students or the parents or the general public in case there goes any amiss and as such, the State was expected to regulate the very system of Teacher Education in so far as the process of affiliation is concerned. 8.Dissatisfied with the order passed by the learned Single https://hcservices.ecourts.gov.in/hcservices/ Judge, the Self-Financing Private Teacher Training Institutes Association has come up with this writ appeal. Summary of submissions:- 9.The learned Senior Counsel for the appellant re-iterated the submissions made before the learned Single Judge. According to the learned Senior Counsel, the member institutes have obtained recognition from the National Council for Teacher Education and they were affiliated to the Examining Body. Therefore, to make those institutes to apply once again would amount to duplication of procedure. The existing institutes have satisfied the norms regarding instructional and infrastructural facilities as provided under NCTE Act and as such it was not open to the State Government to inspect those facilities once again. It was further contended that the State is not entitled to pass a Legislation in the occupied field. When the State has no power even to legislate, the question of issuing the Government Order invoking Article162 of the Constitution of India does not arise. It was further contended that under the guise of Affiliation, the attempt of the State was to consider the matter once again, even though NCTE was satisfied about the facilities before granting recognition. 10.The learned Additional Advocate General justified the Government Order on various grounds. According to the learned Additional Advocate General the inspection carried out by the department found that some of the institutes were located inside Industries, Marriage Halls and Auditorium and those institutes are not having the required instructional and infrastructural facilities. Therefore, as an Affiliating Body, the Government thought it fit to frame certain guidelines. Those guidelines issued by the State in its capacity as Affiliating Body cannot be characterised as a Regulation made in an Occupied Field. It was his further contention that similar attempts were made by the Association earlier when the Government have passed orders to streamline the cause of Teacher Education. The learned Additional Advocate General challenged the maintainability of the Writ Appeal, as according to him, most of the member institutes have accepted the order and as such, it was not open to the Association to challenge the order passed by the learned Single Judge. The legislative Background: 11.The preamble to the Government Order in G.O.Ms.No.94, School Education (U1) Department dated 30 May 2008 indicates the factors which actually weighed with the Government to issue the impugned Order. The preamble reads thus: "G.O. (Ms).No.94 Date:3.05.2008, https://hcservices.ecourts.gov.in/hcservices/ Read:- 1. G.O. (Ms).No.232, S.E., Dated:17.06.1998. 2. G.O. (Ms).No.108, S.E. (U1). Dept., dt:17.05.2007. 3. From the DTERT Lr.Rc.No.1865/C3/2008, dt:7.02.2008, 28.02.2008, 4.03.2008 and 11.04.2008. --------------- ORDER:- In the letters third read above, the Director of Teacher Education Research and Training has stated that the Private Teacher Training Institutes in the State who have obtained recognition from the Southern Regional Committee, National Council for Teacher Education, Bangalore send proposals through the Principal of the District Institutes of Education and Training concerned to the Director of Teacher Education Research and Training seeking approval to the staff list of those Institutions. On examining these proposals it is noted that certain persons appointed in a particular Teacher Training Institute are included in the staff list of another Teacher Training Institute also. Therefore, whenever such instances of a person who is shown in the approved staff list is found in the staff list seeking approval in respect of another Institute, such staff list proposals are returned to the Institutes stating that one person cannot simultaneously work in two Institutes. Besides, there are also a large number of instances wherein bogus experience certificates are produced by the Institutes with an ulterior motive of getting approval for the staff list. In the absence of countersignature by the departmental officers concerned the experience certificates are not accepted for want of genuineness. When the proposals for staff lists are returned for the above reasons, such orders are challenged before the Hon’ble High Court. The Hon’ble High Court https://hcservices.ecourts.gov.in/hcservices/ in many cases has pointed out that as no guidelines prescribing the procedure have been issued by Government, returning the proposal pointing out the above nature of deficiency is not sustainable. The Director of Teacher Education Research and Training has also stated that in the above context it has become necessary to frame certain Guidelines governing the procedures for grant of approval for the staff list by the Director of Teacher Education Research and Training. Further, he has also stated that in respect of colleges offering B.Ed., and M.Ed., courses after getting recognition from NCTE, the Universities concerned in Tamil Nadu are granting affiliation to such colleges, only after which the colleges concerned are entitled to make admission of students. 2. The Director of Teacher Education, Research and Training has therefore requested that Government may contemplate empowering the DTERT to grant Affiliation to the recognised Self-Financing Private Teacher Training Institutes by laying down certain norms therefor. The DTERT has also submitted a Draft Guidelines prescribing conditions for grant of affiliation, grant of approval for staff list, approval for list of students, attendance and condonation, visits to institutes and conduct of Diploma in Teacher Education exams and award of Diploma etc., 3. After careful consideration of the draft guidelines sent by the Director of Teacher Education Research and Training, the Government hereby issue the following guidelines which shall come into force with immediate effect:" 12.The appellant is mainly aggrieved by Resolution I and II applicable to both New Teacher Training Institutes and existing Private Teacher Training Institutes. The impugned provisions read thus: "I. CONDITIONS FOR GRANT OF AFFILIATION TO NEW TEACHER TRAINING INSTITUTES:- 1. The Application for Affiliation and Staff list Approval for the academic year https://hcservices.ecourts.gov.in/hcservices/ should be submitted direct to the Directorate of Teacher Education, Research and Training, Chennai-600 006 in duplicate on or before 31st May of the year for which Affiliation is sought. 2. A Self-Financing Private Teacher Training Institute, seeking Affiliation and approval for Staff List from the DTERT, Chennai-6 should submit the Application in the Form prescribed in Annexure- I to Annexure- VI duly enclosing a copy of the Recognition order granted by the Southern Regional Committee, National Council for Teacher Education, Bangalore. All applications for Affiliation and Staff list Approval shall be processed and final decision, either granting Affiliation / Approval to staff list OR refusing the same shall be communicated to the institute concerned by 20th June of that year. 3. Affiliation fee for D.T.Ed., course shall be Rs.25,000/-. (Rupees twenty five thousand only). This amount shall be remitted into the Treasury under the following head of account and the original Chalan should be attached to the Application: “0202 - Education, Sports, Art & Culture - 01 – General Education - 600 General - AG - Collection of Affiliation fees in respect of Self Financing Private Teacher Training Institutes”. [DPC 0202 01 600 AG 0009] 4. On receipt of Application for grant of Affiliation, the Director of Teacher Education Research and Training will instruct the Inspection Committee, consisting of the following officers to take up inspection of the applicant institute:- i. Principal of the District Institute of Education and Training of the District concerned – Convener. ii. Revenue Divisional Officer of the division https://hcservices.ecourts.gov.in/hcservices/ concerned or his / her nominee – Member iii. Executive Engineer, PWD of the District concerned or his / her nominee – Member. iv. Chief Educational Officer of the District concerned – Member. 5. The following Documents/Certificates should be produced/should be made available to the Inspection Committee for scrutiny:- i. Original Trust/Society Deed indicating the member of the Trust / Society. ii. Original Land Documents. iii. Original Building approval plan. iv. List of equipments available and requirement as per syllabus. v. Building Completion Certificate. vi. Phase wise Plan of Construction. vii. Availability of Water. viii. Availability of Sanitation. ix. Building Licence, Stability Certificate x. Fire Protection Certificate xi. Colour photographs indicating the following:- a. Front portion of the entire building in close view. b. Back side of the entire building in close view. c. Internal portion of atleast one class room d. Internal portion of entire Institute with name board in close view. e. Internal Portion of library room. xii. Classification of land – Agricultural, Industrial or Residential. xiii. Availability of power supply and electrical connection as per norms. xiv. Whether the building constructed is with reference to the approved building plan xv. Hostel facility if any. xvi. List of Teaching and Non-teaching staff. 6. On receipt of the report from the Inspection Committee and after satisfying that the conditions of affiliation are fulfilled, Affiliation will be granted, by the DTERT., Chennai-6, the authority competent to grant https://hcservices.ecourts.gov.in/hcservices/ Affiliation in terms of section 14 (6) (a) of the Central Act 73 of 1993 and Affiliation will be cancelled where recognition has been refused by NCTE in terms of Sub-Section (b) of Section 14 (6) of the Central Act 73 of 1993. 7. In the case of non-compliance or non- fulfillment of one or more conditions, a report will be sent to the Southern Regional Committee, National Council for Teacher Education, Bangalore, regarding the factual position and Affiliation will be deferred till reply is received from the Southern Regional Committee. 8. As per Clause 8 (10) of NCTE Regulations, dated:27.12.2005 and Notified on 13.01.2006 and as per Clause 8 (12) of NCTE Regulations dated:10.12.2007 the students shall not be admitted without affiliation. II. AFFILIATION IN RESPECT OF EXISTING PRIVATE TEACHER TRAINING INSTITUTES:- 1. The Educational Agency of every Teacher Training Institute which is a Private Teacher Training Institute and in existence on the date of publication of the Guidelines in the Tamil Nadu Government Gazette, shall before the expiry of Six months from that date make an application to the competent authority, viz, the DTERT., Chennai-6 for affiliation to continue to run such Institute. 2. Every such application shall: (a) be in the prescribed form (Annexure-I to Annexure- VI) (b) be accompanied by such fee not exceeding Rs.5,000/- (Rupees Five Thousand only) to be remitted into the Treasury under the following head of account and the original Chalan should be attached to the application:- “0202 - Education, Sports, Art & Culture - 01 – General Education - 600 General – AG - Collection of Affiliation fees in respect of Self Financing Private Teacher Training Institutes”. [DPC 0202 01 600 AG 0009] " https://hcservices.ecourts.gov.in/hcservices/ The core issue: 13.The basic question is whether the impugned Government Order would amount to State interference in the field occupied by the Central Legislation. 14.The principal contention of the appellant pertains to the repugnancy between the Central Act and the Executive Order made by the State Government invoking Article 162 of the Constitution of India. Therefore, we may set out the relevant provisions of the NCTE Act and the impugned order. The Legal Framework : NCTE Act and Regulations :- 15.The preamble to the National Council for Teacher Education Act, 1993 says that the Act was enacted with a view to achieve planned and co-ordinated development of the Teacher Education system throughout the Country, the regulation and proper maintenance of norms and standards in the Teacher Education System and for matters connected therewith. 16.Section 2(d) of NCTE Act defines "Examining Body" : "Examining Body" means a University, agency or authority to which an institution is affiliated for conducting examinations in teacher education qualifications." 17.Chapter IV of NCTE Act, 1993 deals with recognition of Teacher Education Institutions. Section 14 reads thus: "RECOGNITION OF TEACHER EDUCATION INSTITUTIONS 14. RECOGNITION OF INSTITUTIONS OFFERING COURSE OR TRAINING IN TEACHER EDUCATION:- (1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations: Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application https://hcservices.ecourts.gov.in/hcservices/ for recognition within the said period and until the disposal of the application by the Regional Committee. (2) The fee to be paid along with the application under sub-section (1) shall be such as may be prescribed. (3) On receipt of an application by the Regional Committee from any institution under sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall- (a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or (b) if it is of the opinion that such institution does not fulfil the requirements laid down in sub-clause (a), pass an order refusing recognition to such institution for reasons to be recorded in writing: Provided that before passing an order under sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a written representation. (4) Every order granting or refusing recognition to an institution for a course or training in teacher education under sub- section (3) shall be published in the Official Gazette and communicated in writing for appropriate action to such institution and to the concerned examining body, the local https://hcservices.ecourts.gov.in/hcservices/ authority or the State Government and the Central Government. (5) Every institution, in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of sub-section (3). (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." 18.Section 14(6) mandates that every Examining Body shall, on receipt of the order of recognition under sub-section (4) shall grant affiliation to the institution, where recognition has been granted or cancel the affiliation, where recognition has been refused. 19.Section 32 enables the NCTE to make Regulations. In exercise of the said power, NCTE framed regulations laying down the procedure for grant of recognition to various teacher training programmes. The norms for such training programmes were later revised. Finally, in supersession of the regulations framed earlier, NCTE framed comprehensive regulations in the name and style of "National Council for Teacher Education [Recognition norms and procedure] Regulations, 2007 and it was notified on 27 November 2007. 20.The National Council for Teacher Education Regulations, 2007 [hereinafter referred to as NCTE Regulations] provides for the manner of making application for recognition, time limit, eligibility, processing fees, processing of applications, consultation with the State Government /Union Territory, inspection of instructional and infrastructural facilities by the team of experts and the ultimate consideration by the Regional Committee of NCTE. https://hcservices.ecourts.gov.in/hcservices/ 21.Regulation 8 deals with conditions for grant of recognition. As per this provision, Institutes must fulfil all the prescribed conditions relating to