WP(C) 4244/2008 Page 1 of 39 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C) No.4244/2008 Judgment Reserved on: 11.07.2008 % Judgment Delivered on: 21.07.2008 Trinity Institute of Higher Education ..... Petitioner Through Mr. R.K. Saini with Mr. Nikhil Bhalla, Advocates versus Govt. NCT of Delhi & Ors. ..... Respondent Through Ms. Zubeda Begum for Respondent Nos.1 & 2. Mr. G.D. Goel for Respondent No.3 CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? VIPIN SANGHI, J. 1. The petitioner is a private institute imparting higher education being run by Kamal Education Society registered under Societies Registration Act 1860 with the object of imparting education. The petitioner is running the Bachelor of Computer Applications (BCA) course for which it has obtained affiliation with Guru Govind Singh Indraprastha University (GGSIP University) i.e. respondent No.3. The WP(C) 4244/2008 Page 2 of 39 aforesaid society is possessed of a plot of land admeasuring 1.43 acres on which it has set up a senior secondary school which is being run in the name and style of Kamal Public School and, in the same plot, in another building it is running the BCA course as aforesaid. 2. The petitioner being desirous of starting the 1 year B.Ed. course approached the Govt. of NCT of Delhi, i.e. respondent No.1 for the purpose of obtaining its No Objection Certificate (NOC) on 9.7.2007. Respondent No.2 is a limb of Govt. of NCT of Delhi, being the Directorate of Higher Education. The said B.Ed. course was proposed to be started with maximum intake of 100 students, in the same building in which it is presently running the BCA course. While the said application was pending consideration the petitioner applied to National Council for Teachers Education (hereinafter referred to as the “Council” or “NCTE”) seeking recognition from them in November, 2007. Another application was made to GGSIP University for seeking their affiliation for the B.Ed. Course. 3. On 3.1.2008 the NCTE addressed a communication to respondent No.1 requiring respondent No.1 to consider the grant of No Objection Certificate to the petitioner. The communication specifically made reference to Regulation 7(2)(iv) of the NCTE Regulation 2005, which states that in case the State Government were not to respond to the notice of NCTE within 60 days, it shall be presumed that the State Government has no objection to the grant of recognition by WP(C) 4244/2008 Page 3 of 39 NCTE. On the same date the NCTE required the petitioner to give its unconditional consent for inspection of the infrastructure and institutional facilities as per NCTE Regulations. On 14.2.2008 an inspection team of NCTE visited the institution and carried out inspection, whereafter vide order dated 14.5.2008 NCTE declared that it was satisfied that the institution satisfies the requirements as per the provisions of the National Council for Teacher Education Act, 1993 (the Act for short) and the regulations made thereunder, including the norms and standards laid down for Secondary Teacher Education Programme (B.Ed.) such as, instructional facilities, infrastructural facilities, library, accommodation, financial resources, laboratory etc. In exercise of power vested by Section 14(3)(a) of the Act, the Northern Regional Committee of NCTE granted recognition to the petitioner for conducting B.Ed. course of one year duration with an annual intake of 100 students as per Clause 7(12) of the Regulation dated 13.1.2006. This was subject to the condition, inter alia, that the institute shall comply with the various other norms and standard prescribed under the NCTE Regulations as amended from time to time. A copy of this communication was sent to respondent Nos.1 to 3. 4. Soon thereafter on 22.5.2008 the Govt of NCT of Delhi vide the impugned communication communicated its decision that the petitioner could not be issued an NOC for starting the B.Ed. course on the ground that total area of the school is 1.43 acres and is not WP(C) 4244/2008 Page 4 of 39 covered under the policy guidelines. Hence the petitioner was not eligible for issuance of NOC. 5. On account of the non-issuance of the NOC by Government of NCT of Delhi, the petitioner has not been granted affiliation by GGSIP University even though NCTE has granted recognition to it. Aggrieved by the refusal of respondent nos. 1 and 2 to grant NOC to it, and the refusal of respondent No.3 to grant it affiliation for the 1 year B.Ed. Course, the petitioner has preferred the present writ petition seeking a writ of certiorari quashing the impugned communication dated 22.5.2008 issued by respondent no.2 as being illegal, arbitrary, unjust and mindless and as being in violation of the rules, regulations and norms. The petitioner has sought a mandamus to respondent no.3, GGSIP University to forthwith grant affiliation to the petitioner institution for conducting the B.Ed course and to allocate 100 students for the academic session 2008-2009 from the merit list prepared on the basis of the Common Entrance Test, 2008 conducted by it. 6. Mr. R.K. Saini, learned counsel for the petitioner submits that NCTE is a statutory body which has been constituted under the National Council for Teacher Education Act, 1993 with a view to achieve planned and co-ordinated development of the teacher education system throughout the country and for the purpose of regulating and properly maintaining the norms and standards in teacher education system. Mr. Saini has taken me through the Act WP(C) 4244/2008 Page 5 of 39 and some of the relevant regulations, reference to which shall be made later in the judgment. 7. It is submitted by learned counsel for the petitioner that the aspect of teacher education falls within the domain of NCTE to consider, and that it is for the NCTE to lay down the regulations for the proper maintenance of norms and standards in teacher education system. The examining bodies i.e. universities are obliged to grant affiliation to institutions, who are granted recognition by the Council on the basis of the inspection conducted by them and upon their being satisfied with regard to the fulfillment of the requirements framed by the Council. It is further argued that in respect of specific matters covered under the Act, the rules and the regulations, it is only the Council which has the jurisdiction to lay down norms for grant of recognition to an institution offering or seeking to offer courses and training in teacher education, and that it is not open to the State Government to lay down conditions or norms, in respect of such issues which are specifically addressed by the NCTE, much less to lay down norms or conditions which are in conflict with those laid down by the Council. It is, therefore, argued by learned counsel for the petitioner that the reason given by the respondent Nos.1 & 2 for the refusal of NOC to the petitioner in the impugned communication dated 22.05.2008, that the total plot area of the school of the petitioner is not covered under the policy guidelines, is incompetent and illegal. WP(C) 4244/2008 Page 6 of 39 8. Mr. Saini further submits that the application for grant of NOC was made by the petitioner to the respondent No.2 as early as on 07.07.2007. Respondent Nos.2 & 3 conducted a joint inspection of the petitioner’s institution in response to the petitioner’s application on 15.12.2007. The inspection report is prepared in a prescribed proforma, which itself discloses the aspects which these respondents take into account while considering an application for grant of NOC/Affiliation. They took note of the fact that the petitioner was running a BCA three years programme with maximum intake of 60 students. Part-I of the inspection report deals with the aspect of “Legality of Ownership and Possession of land.” The inspection committee adopted the process of awarding marks, and the petitioner was awarded the maximum 400 marks since it fulfilled the criteria of “Ownership of land by the Society”, “Lawful Physical Possession of Land by the Society”, “Availability of Land as per norms in conformity area i.e., the land use is institutional” and “Availability of land in rented/temporary, non-conforming school premises where permission of DDA is not available”. Similarly, the petitioner was awarded the maximum 400 marks under the heading “Availability of built up area and Sanctioned Building Plan”. On the aspect of safety measures, out of the maximum marks of 200, the petitioner was awarded 145 marks. Therefore, the petitioner was awarded 945 marks out of 1000 in Part-I of the joint assessment report. Under the criteria “Status of Faculty”, the petitioner was awarded 170 of 250 marks and under the criteria WP(C) 4244/2008 Page 7 of 39 “Computer Centre”, the petitioner was awarded 140 out of 200 marks. The petitioner was awarded 60 out of 200 marks under the heading “Status of Library” and was awarded another 90 marks, while examining the “Status of labs/workshops”, out of the maximum of 200 marks. On the “Instructional Facilities/Teaching Aids” front, the petitioner scored 40 out of 50 Marks and under the heading “Ancillary and Other Essential Facilities”, the petitioner scored 60 out of 100 marks. The recommendation made by the Joint Inspection Committee of respondent Nos.2 & 3 was in favour of the petitioner, subject to the following four conditions: (i) 2½ floors must be provided for B.Ed. before courses starts; (ii) Recognition of NCTE needs to be obtained before starting; (iii) Fulfillment of above mentioned suggestions is very essential; and (iv) The manager of the petitioner was required to give undertakings in the prescribed form. 9. Mr. Saini submits that the petitioner fulfills all the aforesaid conditions and has never backed out of them. He submits that even though the aforesaid recommendation had been made in its favour by the Joint Inspection Committee of respondent Nos.2 & 3, the respondent No.2 did not favour the petitioner with a “No Objection Certificate” and continued to sit over the matter. In the meantime, the NCTE sent a communication dated 03.01.2008 to respondent No.2 WP(C) 4244/2008 Page 8 of 39 requiring it to furnish its “No Objection Certificate”. In Para 2 of the said communication, the Council stated as follows: - “2. NCTE has promulgated regulations with regard to recognition norms and procedure. As per the regulations 7(2)(iv), a copy of the application form submitted by an institution shall be sent to the State Govt./UT administration concerned. On receipt of the communication, the State Govt./UT administration concerned shall furnish its recommendations on the applications to the office of the Regional Committee concerned of the NCTE within 60 days from its receipt. If the recommendation is negative, the State Govt./UT administration shall provide detailed reasons/grounds thereof, which could be taken into consideration by the Regional Committee concerned while deciding the application. If no communication is received from the State Govt./UT administration within the stipulated 60 days, it shall be presumed that the State Govt./UT administration concerned has no recommendation to make.” 10. Mr. Saini submits that Regulation 7(2)(iv) and Regulation 7(3) (which have been extracted in the writ petition) provide that while furnishing the application for grant of recognition, the Council shall send a communication alongwith the application submitted by the institution, to the concerned State/UT. On receipt of the communication, the State Government/UT administration is required to furnish its recommendations on the application to the concerned Regional Committee of the Council within 60 days from receipt. Importantly, even if the recommendation is negative, the State Government/UT Administration is obliged to provide the detailed reasons/grounds thereof, and the recommendation, in any event, is not WP(C) 4244/2008 Page 9 of 39 per se binding on the Council/Regional Committee, which shall take into consideration the said negative recommendation and then give its decision. It further provides that if no communication is received from the State Government/UT Administration within the stipulated 60 days, it shall be presumed that the State Government/UT Administration concerned has no recommendation to make. 11. Mr. Saini submits that despite the communication dated 03.01.2008 sent by the Council to respondent No.2, particularly highlighting Regulation 7(2)(iv) and 7(3) and expressly stating that in case no communication is received from respondent No.2, it shall be presumed that respondent No.2 has no recommendation to make, and despite the fact that respondent No.2 was sitting over a positive recommendation made by the Joint Inspection Committee of respondent Nos.2 & 3, respondent No.2 chose not to communicate its no objection to the Council/respondent No.4. He submits that consequently Regulation 7(3) came into effect and the Council justifiably granted recognition under Section 14(3) of the Act to the petitioner vide its communication dated 14.05.2008. Mr. Saini submits that only after the issuance of the recognition order dated 14.05.2008, respondent No.2 rushed to issue the impugned communication on 22.05.2008. 12. The petitioner further submits that the impugned communication is based on non statutory guidelines issued by WP(C) 4244/2008 Page 10 of 39 respondent No.2 on 19.05.2008 for issue/revalidation of NOC to self- financed institutions for the academic year 2008-09 onwards. These guidelines have been placed on record by the petitioner. Mr. Saini submits that contrary to the norms laid down by the Council in Clause 5.1.1 of the Appendix to the Regulations, which states that the institution must have at least 2500 sq. meters land, whereupon built up area consisting of classrooms etc. shall not be less than 1500 sq. meters, the respondent in its aforesaid guidelines dated 19.05.2008 have laid down the requirement that B.Ed. courses will be allowed to run in a school building or complex that has been constructed on at least 2.5 acre plot situated in a conforming area. The submission of Mr. Saini is that firstly, the said guidelines are incompetent, inasmuch as, the regulations framed by the Council specifically provided for the area that an institution is required to have, both open and built up, to run the teacher training institution. Therefore, respondent No.2 had no authority or jurisdiction to lay down any guidelines in that respect. He further submits that the guidelines laid down by the respondent No.2 being contrary to those laid down by the NCTE, it is the norms laid down by the NCTE which would prevail since it is statutory in character, as opposed to the guidelines which are non-statutory in characters and have been issued by a State Government. Moreover, the NCTE is a body created under a Central enactment framed under Entry 66 of List I of the Seventh Schedule and the State Government is therefore not empowered to legislative or take any policy decision in WP(C) 4244/2008 Page 11 of 39 respect of matters covered by the said entry. He further submits that the said guidelines, in any event, could not be made applicable in respect of the petitioner, since they have been framed only on 19.03.2008, whereas the petitioner’s application to respondent No.2 was pending since July 2007, in respect of which joint inspection had been conducted by respondent Nos.2 & 3 in December 2007. He submits that even the period of 60 days within which respondent No.2 was obliged to respond in terms of Regulation 7(3) got over on or about 03.03.2008 i.e. well before the framing of the said guidelines on 19.03.2008. Upto 03.03.2008, there was no guideline framed by respondent Nos.1 & 2. 13. Mr. Saini also submits that the conduct of the respondent No.2 is also highly discriminatory. It is pointed out that in respect of another institution, namely, Guru Ramdas College of Education, the respondent Nos.2 & 3 had conducted a joint inspection and prepared a report on the same prescribed form as in the case of the petitioners institution. This inspection was conducted on 26.06.2007. The marks awarded to Guru Ramdas College of Education under Part-I were only 400 as opposed to the petitioner’s 945. In Part-II, Guru Ramdas College of Education was awarded an aggregate of 460 marks as opposed to the petitioner’s 560 marks. Yet the case of Guru Ramdas College of Education was favourably considered and “No Objection Certificate” was issued by respondent No.2 with the result that the said WP(C) 4244/2008 Page 12 of 39 college started its session in the year 2007 itself and admitted students for the academic session 2007-08. He submits that the petitioner’s request for grant of NOC by respondent No.2 was made at around the same time as Guru Ramdas College of Education, but the joint inspection was unduly delayed by respondent Nos.2 & 3 to December 2007 with the result that the petitioner could not start its course with the academic session 2007-08. 14. Learned counsel for the petitioner has also placed reliance on two decisions of the Supreme Court in State of TN & Anr. v. Adhiyaman Education and Research Institute and Ors. (1995) 4 SCC 104 and Jaya Gokul Educational Trust V. Commissioner & Secretary to government High Education Dept. Thiruvananthapuram & Anr., AIR 2000 SC 1614. Mr. Saini submits that the petitioner institution has open land of about 3000 sq. meters as opposed to a minimum requirement of 2500 sq. meters and built up area of 2575.79 sq. meters for classrooms etc. as opposed to a minimum of 1500 sq. meters. He submits that in para 1 of the writ petition there was a typographical error, which has been corrected by filing an additional affidavit on behalf of the petitioner. 15. Respondent no.3, GGSIP University have in their counter affidavit relied upon Notification No.F-1(6)(4)/99-2000/Estt. issued under sub-section (2) of Section 26 of the Guru Govind Singh Indraprastha University Act, 1998 relating to the conditions under WP(C) 4244/2008 Page 13 of 39 which colleges and institutions may be admitted to the privileges of the University and the conditions under which such privileges may be withdrawn. Under Clause 3(ii)(b), no college or institution can be admitted to the privileges of the University, unless it has been granted a No Objection Certificate by the concerned State Government and recognized by the appropriate statutory authority wherever applicable, for the subjects and courses of study for which affiliation as sought. It is, therefore, argued that the requirement of an institution being issued a No Objection Certificate by the concerned state Government is a mandatory statutory requirement for the respondent university to grant affiliation. Reliance is also placed on a decision of this Court in Rahul Dhaka Vikas Society & Anr Vs. Guru Gobind Singh Indraprastha University & Ors., 89(2001) DLT 337(DB) wherein this Court has held that there cannot be automatic affiliation sought from from the respondent University by an institution which has been recognized by the NCTE. The University can still exercise its discretion in granting or refusing to grant the affiliation. The words “shall” appearing in Section 14 of the Act has to be read as “may” giving discretion to the examining body to grant affiliation to the institution which has to be accorded recognition by the respondent Council. 16. Respondent no.4, the NCTE has produced the original record relating to the application made by the petitioner to seek recommendation and the consideration of that application by the WP(C) 4244/2008 Page 14 of 39 Northern Regional Committee of NCTE. Mr. V.K.Rao, learned counsel for NCTE supports the contention of the petitioner with regard to the power of NCTE to grant recognition to an institution and the competence, or rather lack of it, of the State Government to lay down and enforce guidelines which are contrary to the standards and norms for recognition laid down by the Council. He relies on State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors, JT 2006(4) SC 201 in support of his submissions. 17. Ms. Zubeda Begum, who appears for respondents 1 and 2 has produced a copy of the reply filed by these respondents by way of an affidavit in LPA 303/2008 (minus the annexures), and seeks to rely on the averments made therein. The stand of respondents 1 and 2 is that it is the Government of NCT of Delhi which lays down the policy guidelines for establishment of educational institutions in the National Capital Territory of Delhi and the University implements the policy of the Government of NCT of Delhi. The institution is bound to abide all the rules enforced in Delhi by the Government of India, by the Government of NCT of Delhi, other local authorities and the affiliating university. It is further submitted that it is the responsibility of the Directorate of higher education to inspect the institution seeking affiliation with respondent no.3 university every year and revalidate the No Objection Certificate every year after taking into consideration WP(C) 4244/2008 Page 15 of 39 all aspects i.e the quality of infrastructure, both physical and academic, the faculty and financial strength, and status of the institute. It is argued that respondent no.3 is a prestigious university and the reputation of the university has to be safeguarded. The respondent nos. 1 and 2 submits that respondent no.3 university has been established and funded by the Government of NCT of Delhi. The State government is required to grant No Objection Certificate for running the institute, and if the requirement for obtaining No Objection Certificate by the institutes is waived, the institutes would be free from the control that the government exercises to ensure that they follow the prescribed norms for running the institutes. Reliance is also placed on clause 4 of a notification dated 1.11.1999 bearing no.F.18(88)/92/CB/Edn./PF/2171 (Annexure R-3/4) to say that the affiliation granted shall be provisional in nature and shall be renewed on yearly basis. It is submitted that the grant of provisional affiliation implies that the institute fulfills all the requirements with regard to the existing area needed for class rooms with requisite strength of teachers and other equipment needed for imparting quality education in the courses for which affiliation is sought. For ascertaining whether the institutes fulfill the requirement for imparting quality education to the students, inspection of the institute is carried out to confirm whether they fulfill the conditions laid down in the guidelines or not. The purpose of laying down guidelines and for carrying out inspections by the Government of NCT of Delhi is to ensure that no student suffers WP(C) 4244/2008 Page 16 of 39 on account of lack of adequate physical and academic infrastructure. Ms. Zubeda Begum has emphasized that the land allotted to the petitioner by the DDA admeasuring 1.43 acres is for running a middle school out of which 2893.605 sq.mt is for setting up the school building and 2893.605 is for a play field. The petitioner in violation of the said norms now wants to run a B.Ed course from the very same building which is used to impart education to secondary and senior secondary pupils. The petitioner is also running a BCA course from the same building. As per the policy guidelines, B.Ed course could be allowed to be run in a school building complex, that has been constructed on at least a 2.5 acres plot situated in a conforming area. It is also argued that as per the building norms the petitioner can legally build only 4340 sq.mts covered area by adopting FAR of 150. The petitioner could not be granted no objection certificate unless it has an additional covered are of 1500 sq.mt. For the BCA three year degree course with intake of 60 students, the petitioner has had to dedicate 810 sq.mt covered area. 18. Section 2(c) defines the “Council” to mean the National Council of Teacher Education established under Section 3(1) of the Act. “Examining body” means a university, agency or authority to which an institution is affiliated for conducting examinations in teacher examination qualifications. “Institution” under Section 2(e) is defined to mean an institution which offers courses or training in teacher WP(C) 4244/2008 Page 17 of 39 education. “Recognised institution” is defined under Section 2(i) to mean an institution recognized by the Council under Section 14. Section 2(l) defines “teacher education” to, inter alia,