SBCWP NO.3071/08. SBCWP NO.371/09. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION NO.3071/2008. Mahatma Gandhi Shiksha Samiti Vs. National Council for Teacher Education & Ors. 2) S.B. CIVIL WRIT PETITION NO.371/2009. Mahatma Gandhi Shiksha Samiti Vs. National Council for Teacher Education & Ors. Date of Order:- June 29, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sagar Mal Mehta, Senior Advocate with Shri R.S. Mehta for the petitioner. Shri Sanjay Pareek for Union of India. ****** Reportable BY THE COURT:- These two writ petitions have been filed by Mahatma Gandhi Shiksha Samiti aggrieved by the orders dated 18/2/2008 by which Northern Regional Committee of National Council for Teacher Education (for short, “NCTE”) rejected its applications for additional intake capacity of respectively 100 SBCWP NO.3071/08. SBCWP NO.371/09. 2 students in the B.Ed. Course and 50 students in S.T.C. Course. Petitioner was initially vide order dated 16/8/2007 granted permission/recognition for imparting education by NCTE for B.Ed. course of duration of one year with intake of 100 students and vide order dated 20/9/2007 for STC course of duration of two years with intake of 50 students, for academic session 2007-08, Application for additional intake as aforesaid was submitted by the petitioner on 31/12/2007, within four months of the original permission granted. Simultaneously, petitioner also submitted fresh application for permission to run the M.Ed. Course for the academic session 2008-09. Northern Regional Committee (for short, “NRC”) of NCTE did not process the above referred to two applications for additional intake of B.Ed. and S.T.C. Courses, which were finally rejected on the ground that petitioner did not fulfill the requirement of paras 8(3) and 8(4) of National Counsel for Teacher Education (Recognition Procedure) Regulations, 2007 (for short, “Regulations of 2007”) which came into force w.e.f. 10/12/2007. Challenging above referred to two orders, petitioner earlier filed first of these two writ petition, namely SBCWP No.3071/08 in which, this Court passed an interim-order on 24/4/2008 SBCWP NO.3071/08. SBCWP NO.371/09. 3 directing respondents to consider case of the petitioner. This Court based its order on the interim-order dated 10/7/2008 passed by the Delhi High Court in identical writ petition No.4674/08 (Shri Ganesh College of Education Vs. NCTE) and directed that NCTE shall consider case of the petitioner and accordingly pass appropriate orders. It may be noted that the Delhi High Court in the aforesaid interim-order directed the NCTE not to insist for complying with paras 8(3) & 8(4) of Regulations of 2007 for additional intake for academic session 2008-09. Pursuant to this order, NCTE again considered case of the petitioner but this time also rejected its application on the premise that since recognition has already been granted to the petitioner for M.Ed. Course, therefore, as per para 8(2) of the Regulations of 2007, its application for permission for additional intake of B.Ed. and S.T.C. courses cannot be processed and vide order dated 29/30.12.08 rejected the application. It is this order which is impugned in second of these writ petitions, namely SBCWP No.371/2009. Both the writ petitions were therefore clubbed and heard together for final disposal. 2) Shri Sagar Mal Mehta, learned Senior Counsel assisted by Shri R.S. Mehta, learned SBCWP NO.3071/08. SBCWP NO.371/09. 4 counsel appearing for the petitioner, has argued that though the Regulations of 2007 have been newly promulgated on 10/12/2007 but in substance, provisions contained in paras 8(3) and 8(4) thereof are exactly similar to the paras 8(3) and 8(4) of its predecessor Regulations, which were notified on 27/12/2005. Despite such provision being there, respondents granted permission for additional intake to other institutions for the academic session 2005-06. Reference is made to the cases of Shashtri Mahila College, Kudan, District Sikar which was granted intake of 100 students in B.Ed. Course for academic session 2005-06 and was granted additional intake of 100 more seats in Session 2007-08 even before it could complete three academic sessions in terms of para 8(3). Similarly, Saint Soldier Women College, Tonk which was running B.Ed. course with 100 students for the academic session 2005-06, was allowed additional intake of 100 students for the academic session 2007-08. Contention of the respondents however is that those institutions were granted additional intake prior to completing three academic sessions before Regulations of 2007 came into force w.e.f.10/12/2007, is therefore wholly incorrect and misleading. Similar provision was there in the SBCWP NO.3071/08. SBCWP NO.371/09. 5 Regulations of 2005. As regards non-fulfillment of condition in para 8(4) of Regulations of 2007, learned counsel submitted that none of 378 institutions enumerated in the order dated 27/12/2004 (Ann.9) and 85 institutions enumerated in the order dated 30/8/2007 (Ann.10) issued by the Education Department of the Government of Rajasthan are accredited with the National Assessment and Accreditation Council with Grade B+ on a nine point scale developed by NAAC. Approach of the respondents is wholly arbitrary and discriminatory. Institutions situated in similar circumstances are being accorded dissimilar treatment. Respondents have thus not maintained uniformity. Learned counsel in support of his argument has placed reliance on judgment of Supreme Court in Narpat Singh and others Vs. Jaipur Development Authority and another : 2002(4) SCC 666. Learned counsel also relied on the judgment of Delhi High Court in Budha College of Education & Ors. Vs. National Council for Teacher Education (WP (C) No.5131/08 & CM No.9827/08, 10337/08) decided on 1/8/2008, wherein the Delhi High Court taking note of para 8 (3) and 8(4) supra, directed NCTE to grant enhanced intake even before completion of three years. SBCWP NO.3071/08. SBCWP NO.371/09. 6 3) As regards subsequent writ petition (SBCWP No.371/09), Shri Sagar Mal Mehta, learned counsel submitted that though the respondents in the impugned order dated 29/30.12.2008, has stated that they for the present are not insisting upon compliance of para 8(3) and 8(4), but they have misconstrued para 8(2) of Regulations of 2007. Their contention that since petitioner has already been granted permission for starting M.Ed. Course, therefore application for the courses of B.Ed. and S.T.C. Courses cannot be processed is wholly misconceived. It is contended that para 8(2) supra cannot be applied in the case of additional intake of seats and would be applicable only for the purpose of grant of recognition of basic unit. In this case, permission for basic unit of B.Ed. and S.T.C. Courses already stood granted w.e.f. the academic year 2007-08. There was thus no question of applicability of para 8(2). Learned counsel has cited example of Shekhawati College Doondlod, District Jhunjhunu, which was granted permission for new M.Ed. Course for the academic session 2008- 09 and was simultaneously also granted additional seats of B.Ed. and STC Courses in the same session. Learned counsel submitted that respondents having rejected permission for additional intake by SBCWP NO.3071/08. SBCWP NO.371/09. 7 ignoring paras 8(3) and 8(4) of the Regulations of 2007, now could not press into service argument of alleged non compliance of para 8(3) and 8(4). It is contended that no reason which was not made part of the record, to deny permission can now be supplemented by way of affidavit and the respondents cannot be permitted to supplement the reasons through their pleadings. In support of his this argument, judgments of the Supreme Court in Commissioner of Police, Bombay Vs. Gordhandas Bhanji : AIR (39) 1952 SC 16 and Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others : AIR 1978 SC 851 have been relied on. Learned counsel therefore submitted that both the writ petitions may be allowed and the respondents be directed to consider case of the petitioner for B.Ed. and STC Courses of 100 and 50 students for the academic session 2009- 10 as academic session 2008-09 has lapsed. Reliance was also placed on the judgment of Supreme Court in State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others : (2006)9 SCC 1. Learned counsel also relied on the judgment of co- ordinate Bench of this Court in Shri Ana Sagar STC College and another Vs. Union of India and others (SBCWP No.11699/08 decided on 5/3/2009. SBCWP NO.3071/08. SBCWP NO.371/09. 8 4) Shri Sanjay Pareek, learned counsel appearing on behalf of National Council for Teacher Education has opposed the writ petition and submitted that application of the petitioner for additional intake of B.Ed. and S.T.C. Courses could not be processed in view of non fulfillment of conditions of para 8(3) and 8(4) supra, which came into force w.e.f. 10/12/2007. It was contended that applications of many other institutions like the petitioner for additional intake could not be processed because they also failed to fulfill the condition prescribed in paras 8(3) and 8(4). While petitioner approached this Court, several similar writ petitions were filed before the Delhi High Court which were allowed vide judgment dated 29/5/2008, 11/6/2008 and 10/7/2008. Though case of the petitioner for grant of additional intake was again considered in compliance of the interim order passed by this Court on 24/10/2008 in SBCWP No.317/2008, still recognition/permission for additional intake could not be granted to the petitioner for its inability to comply with the provisions of paras 8(2) of Regulations of 2007. Learned counsel did not dispute existence of Regulations of 2005 but submitted that conditions contained in paras 8(3) and 8(4) were relaxed SBCWP NO.3071/08. SBCWP NO.371/09. 9 lateron for which notification dated 20/7/2006 was issued. It was provided therein that condition prescribed in paras 8(3) and 8(4) of Regulations of 2005 would not be applicable. Subsequently, however fresh Regulations of 2007 were promulgated vide notification dated 10/12/2007. Applications for additional intake which were received after 10/12/2007 shall have to be therefore dealt with under the Regulations of 2007 for which there was no relaxation in so far as conditions enumerated in paras 8(3) and 8(4) are concerned. In respect of the plea of discrimination in para 6 of SBCWP No.3071/08 and para 12 of SBCWP No.371/09, learned counsel submitted that applications for grant of additional intake in the referred cases were received prior to 10/12/2007. Present case thus cannot be treated at par with those cases. Argument of discrimination is therefore wholly misconceived and factually unfounded. 5) Learned counsel for NCTE further submitted that the order dated 29/30.12.2008 impugned in SBCWP No.371/09 was passed by respondent NCTE in compliance of the interim-order of this Court dated 24/10/2008 in SBCWP No.3071/08, which was in fact based on the interim order dated 10/7/2008 passed by the Delhi High Court in Shri SBCWP NO.3071/08. SBCWP NO.371/09. 10 Ganesh College of Education. Permission was granted to some of the institutions in the State of Haryana in compliance with the interim order passed by Delhi High Court. Interim order passed by the Delhi High court in the aforesaid case, was subjected to challenge before the Division Bench of Delhi High Court itself and also before the Supreme Court. Learned counsel submitted that Supreme Court vide order dated 26/9/2008 stayed operation of the interim order dated 10/7/2008 passed by Delhi High court but unfortunately such facts could not be brought to the notice of this Court at the time of passing of order dated 24/10/2008. Subsequently, Division Bench of Delhi High Court in appeals filed against the similar interim orders also stayed the operation thereof vide order dated 20/3/2009. 6) Shri Sanjay Pareek, learned counsel for NCTE submitted that it is settled proposition of law that interim orders are subjected to final decision of the writ petition and since the main writ petition in which interim order was passed itself is being heard and decided and eventually if that petition is dismissed, interim order would also lapse thus obviating the necessity to decide SBCWP No.3071/09 on merits. Learned counsel further submitted that objection raised by the petitioner SBCWP NO.3071/08. SBCWP NO.371/09. 11 that respondents having not pressed paras 8(3) and 8(4), cannot again rely on those paras to oppose prayer for grant of additional intake. Alternatively, learned counsel for NCTE submitted that since petitioner-institution was already granted permission of one course being M.Ed. Course, therefore, as per condition of para 8(2) supra, it cannot be granted additional intake for two more courses simultaneously. 7) I have given my anxious consideration to the rival submissions of the parties and perused the material on record. 8) Objection raised by the learned counsel for the petitioner that respondents cannot be permitted to rely on paras 8(3) and 8(4) supra while contesting SBCWP No.371/09, wherein, subsequent order passed by them on 29/30.12.2008 is assailed, cannot be accepted for the reason that this order was essentially passed in compliance of the interim order passed by this Court in SBCWP No.3071/08 on 24/10/2008. The tenor of the aforesaid interim order clearly show that the order was based on a similar interim order passed by the Delhi High Court in a writ petition filed by one Shri Ganesh College of Education on 10/7/2008. The main writ petition in which the aforesaid interim SBCWP NO.3071/08. SBCWP NO.371/09. 12 order was passed by this Court, was still kept pending, therefore, interim-order so passed therein would abide by whatever final order is passed therein. Upholding the aforesaid argument of the petitioner would mean that interim order so passed by this Court should be taken as final order and SBCWP No.3071/08 be either taken up as disposed of or having been rendered infructuous, which intention is not reflected from the aforestated interim order. Respondents can therefore legitimately while opposing these petitions, rely on para 8(3) and 8(4) supra because the main petition is still pending and is being decided with another writ petition, namely SBCWP No.371/09. 9) It is indeed surprising that NCTE failed to inform this Court when the interim-order so passed by this Court on 24/10/2008, that the operation and effect of the interim order dated 10/7/20078 passed by the Delhi High Court, has already been stayed by the Supreme Court vide order dated 26/9/2008. Had it been done, this Court in all probability would not have passed the order dated 24/10/2008. But at the same time, it is evident from the order dated 20/3/2009 passed by the Division Bench of Delhi High Court in number of letters patent appeal arising out of similar orders SBCWP NO.3071/08. SBCWP NO.371/09. 13 of Single Bench of that High Court, leading case being National Council for Teacher Education Vs. Akash College of Education and another in LPA No.676/2008 and nine other connected matters that except in cases in which approval/permission was already granted, operation of the orders impugned therein was stayed and the letters patent appeals were posted for hearing after decision of the Supreme Court. That course was adopted by the Delhi High Court presumably because SLP was pending before the Supreme Court against the interim order passed by that court. In the present case, however, both the parties have contested the matter on merits and therefore, I deem it appropriate to decide the writ petitions on merits. For that purpose however, it must be at the outset noticed that since operation and effect of the interim order dated 10/7/2008 passed by the Delhi High Court in Shri Ganesh College of Education was already stayed by the Supreme Court, the very premise on which the interim-order was passed by this Court, would cease to exist. Despite NCTE having considered the application of the petitioner afresh, SBCWP No.3071/08 in which it had earlier relied on paras 8(3) and 8(4), to reject such applications for additional intake would still SBCWP NO.3071/08. SBCWP NO.371/09. 14 survive for final disposal; therefore decision to be rendered in SBCWP No.371/09 is nothing but a very limited exercise only for the purpose of deciding whether invocation of para 8(2) of the Regulations of 2007 by the NCTE was justified and if it was not, what effect would it have on decision to be rendered in SBCWP No.3071/08. 10) I would therefore first deal with para 8 (2) of Regulations of 2007 which inter-alia provides as under:- “8(2) of Regulations, 2007 In the first instance, an institution shall be considered for grant of recognition for only one course for the basic unit as prescribed in the norms and standards for the particular teacher education programme. An institution can apply for basic unit of an additional course from the subsequent academic session. However, application for not more than one additional course can be made in a year.” 11) Reading of aforesaid para 8(2) of Regulations of 2007 would show that an institution shall be considered for grant of recognition for only one course for basic unit as prescribed in the norms and standards for a particular teacher education programme. It further provides that an institution can apply for one basic course or an SBCWP NO.3071/08. SBCWP NO.371/09. 15 additional course from the subsequent academic session, however; application for according permission for two courses simultaneously cannot be made. Respondents rejected petitioner’s application on the premise that since petitioner has already been granted recognition for M.Ed. Course, therefore as per condition enumerated in para 8(2) supra, application for additional intake of B.Ed. and STC Courses cannot be processed. Although it may be true that additional intake has to be construed in a different way than an additional course and in that context, M.Ed. Course was certainly an additional course. Since petitioner was granted permission for imparting education in B.Ed. Course for the academic session 2007-08, therefore, its request for permission to start M.Ed. Course, should be for that purpose considered an additional course and the same was rightly considered and granted in the subsequent academic session. Action of NCTE in declining to permit additional intake of B.Ed. and/or STC Course in the subsequent academic session only because it simultaneously granted permission for additional course of M.Ed., cannot be therefore held to be justified. But this would then become a third reason for rejecting the application of the SBCWP NO.3071/08. SBCWP NO.371/09. 16 petitioner for grant of additional intake; first two being; (i) non-compliance of para 8(3) and (ii) para 8(4) of Regulations of 2007. If the respondents are able to show that petitioner was mandatorily required to comply with the conditions of paras 8(3) and 8(4), which it had failed to do, what would have to be seen is whether the original order passed by them on 18/2/2008, rejecting the prayer for such additional intake is liable to be upheld. 12) This thus brings us to the main writ petition, being SBCWP No.3071/08 again; where respondents have declined to grant permission to the petitioner for additional intake for its failure to comply with paras 8(2) and 8(3). Essence of what has been argued on behalf of the petitioner is that since respondents have granted additional intake in identical circumstances to various institutions, such as Shekhawati College of Education, Kudan, and Saint Soldier Women College, Tonk even before they could complete three academic sessions of running the B.Ed./STC Courses, the NCTE cannot discriminate against the petitioner particularly when para 8(3) of Regulations of 2007 is in para-materia with para 8(3) of Regulations of 2005. Argument with regard to para 8(4) of SBCWP NO.3071/08. SBCWP NO.371/09. 17 Regulations of 2007 is that since none of the institutions so far granted permission by NCTE in the State of Rajasthan as enumerated in the government orders dated 27/12/2004 (Ann.9) and 30/8/2007 (Ann.10), issued by the Education Department of the Rajasthan are accredited with the National Assessment and Accreditation Council with Grade B+ on a nine point scale developed by NAAC, such a requirement cannot be insisted in the case of the petitioner particularly when the provision contained in para 8(4) of Regulations of 2007 are substantially similar to the one contained in its predecessor Regulations of 2005. It is further contended that in some cases, permission for additional intake has been allowed even after 10/12/2007 when the Regulations of 2007 were promulgated. 13) Regulations of 2005 were modified vide notification dated 20/7/2006. Respondents have placed on record, notification dated 20/7/2006. 14) For the facility of reference therefore paras 8(3) and 8(4) of Regulations of 2005 and Regulations of 2007, respectively are reproduced hereunder:- SBCWP NO.3071/08. SBCWP NO.371/09. 18 “Para 8(3) of Regulations, 2005 An institution shall be permitted to apply for enhancement of intake in a teacher education course already approved after completion of three academic sessions of running the courses. Para 8(4) of Regulations, 2005 An institution shall be permitted to apply for enhancement of intake in Secondary Teacher Education Programme – B.Ed. & B.P.Ed. Programme, if it has accredited itself with a grade of B++ on a nine point scale.” “Para 8(3) of Regulations, 2007 An institution shall be permitted to apply for enhancement of course wise intake in teacher education courses already approved, after completion of three academic sessions of running the respective courses. Para 8(4) of Regulations, 2007 An institution shall be permitted to apply for enhancement of intake in Secondary Teacher Education Programme – B.Ed. & B.P.Ed. Programme, if it has accredited itself with the National Assessment and Accreditation Council (NAAC) with a letter Grade B developed by NAAC.” 15) Notification dated 20/7/2006 is reproduced in extenso hereunder:- “THE GAZETTE OF INDIA EXTRAORDINARY NATIONAL COUNCIL FOR TEACHER EDUCATION NOTIFICATION New Delhi, the 20th July, 2006 No.49-4/2006-NCTE(N&S).-Norms and Standards for various teacher education programmes have been prescribed and updated by the SBCWP NO.3071/08. SBCWP NO.371/09. 19 National Council for Teacher Education from time to time and a set of such norms & standards was last-promulgated alongwith Regulations vide notification No.F.9- 18/2002-NCTE dated 13th November, 2002; published in the Gazette of India Extra- Ordinary on 18th November, 2002. Subsequently while promulgating new Regulations vide notification No.49- 42/2005-NCTE9N&S) dated 27.12.2005, published on 13th January, 2006 and pending finalization of new norms & standards, the existing norms as mentioned in Regulations 8(i) were retained with the new regulations in their existing form of the notification dated 13.11.2002 as contained in relevant appendices 3 to 14. The process of finalization of norms relating to the revision of secondary teacher education programme leading to B.Ed. degree (face-to-face) has since been completed keeping in view the suggestions received from various quarters concerned and to remove the functional difficulties in the existing norms and standards. Now, therefore, in exercise of the powers conferred under sub-section 2 of Section 32 of the National Council for Teacher Education Act, 1923 (73 of 1993), the National Council for Teacher Education hereby makes the following regulations, namely:- 1. Short Title and Commencement These regulations may be called the “National Council for Teacher Education (Recognition Norms & Procedure) (Amendment) Regulations, 2006.” 2. Applicability (1) These regulations shall be applicable to all matters pertaining to grant of recognition/permission to conduct a secondary teacher education programme in face to face mode leading to B.Ed. degree or equivalent. SBCWP NO.3071/08. SBCWP NO.371/09. 20 (2) They shall come into force from the date of their publication in the Official Gazette. Extent of Amendment The appendix – 7 of the norms and standards which was notified by NCTE Regulations, 2002 and retained in the NCTE Regulations, 2005 shall be replaced by the Appendix – 1 to this amendment and be read as part thereof. Note:- For enhancement of intake in the course where new norms have been published after notification of the Regulations dated 27.12.2005, the conditions prescribed under Rule 8(3) and 8(4) of the said Regulation shall not be applicable. V.C. Tewri, Member, Secy.” 16) This Court is not called upon to go into the wisdom or validity of the aforesaid notification and the amendments made thereby. Aforesaid amendments have to be therefore accepted on their face value. Notification shows that after promulgation of Regulations of 2005, NCTE was still grappling with the situation arising out of the norms and standards promulgated thereby. NCTE initially by notification dated 13/1/2006 decided to retain UGC norms as mentioned in para 8(i) pending finalization of new norms and standards. It then undertook the exercise towards that direction and on the basis of the inputs and suggestions SBCWP NO.3071/08. SBCWP NO.371/09. 21 received from various quarters, decided to amend