IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22-12-2006 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN WRIT PETITION No.34923 of 2006 And M.P.Nos.1 and 2 of 2006 Annai J.K.K.Sampoorani Ammal Charitable Trust rep., by its Chairman and Managing Trustee Thookkanaickenpalayam Post, Gobi Taluk, Erode District-638 506. .. Petitioner Vs. Bharathiyar University rep., by Registrar, Coimbatore-641 046. .. Respondent Writ petition filed under Article 226 of Constitution of India praying for issue of a Writ of Certiorarified Mandamus, calling for the records comprised in proceedings No.364/A1/2006 on the file of the Registrar, Bharathiyar University, Coimbatore, dated 18.4.2006 and quash the same in so far as it relates to rejection of granting of affiliation to the petitioner's institution for the academic year 2005-2006 and consequently direct the respondent to grant affiliation to the petitioner's institution for the academic year 2005-2006 in respect of B.Ed., Course. For Petitioner : Mr.V.Ayyadurai For Respondent : Mr.M.Sekar, Special Government Pleader (Education) ORDER 1. By an order dated 4.1.2006, the National Council for Teacher Education granted recognition to the petitioner to start a B.Ed. degree course for the academic year 2005-2006 and the State Government also issued a No Objection Certificate on 1.3.2006 for the same academic year 2005-2006. 2. But on an application dated 5.1.2006 submitted by the petitioner for the grant of affiliation, the Syndicate of the University, in its meeting held on 24.3.2006, decided to grant https://hcservices.ecourts.gov.in/hcservices/ affiliation only for the academic year 2006-2007 on the short ground that there would be lack of adequate term days, for the academic year 2005-2006. The said decision communicated by the University by its order dated 18.4.2006, is under challenge in this writ petition. 3. I have heard Mr.V.Ayyadurai, learned counsel for the petitioner and Mr.M.Sekar, learned Special Government Pleader (Education) for the respondent. 4. The sum and substance of the case of the petitioner in the writ petition is that since NCTE had granted recognition for the academic session 2005-2006, the University has to sign on dotted lines granting affiliation for the same academic session and that it shall have no concern of its own and no independent judgment of its own. 5. As stated above, the Syndicate decided to grant affiliation for the academic year 2006-2007, on the only ground that the students admitted to the institution would not be in a position to complete the requisite number of term days. An academic year as is normally understood commences from June of a particular year and ends with May of the next year. Such a pattern is actually distorted in the case of admission to Professional Courses, on account of the fact that the admission procedure to Professional Courses has become highly complicated and time consuming. Therefore, in many of the Professional Institutions, the academic year commences in July/August and sometimes in September also of a particular year. This is why, the Supreme Court said that admission to Medical Colleges shall not be made beyond 30th September of a year, for that academic year. 6. Even in respect of Teacher Training Institutes offering B.Ed., Degree, the admissions commence in October/November, in view of Single Window Counselling, but in any case, they can not spill over beyond the first of January. Therefore, the reason stated in the impugned order that if affiliation is granted in March 2006 for that particular academic year (2005-2006), the students would not be able to complete the requisite number of term days, is a genuine apprehension on the part of the University. Hence what remains to be considered is, as to whether the University was bound to close its eyes to the lack of term days, and grant affiliation, for the same academic year, merely because the NCTE had granted recognition for a particular academic year. 7. Mr.V.Ayyadurai, learned counsel appearing for the petitioner contended - (a) that since the NCTE granted recognition by its order dated 4.1.2006 for the academic year 2005-2006, the University was bound to grant affiliation for the same academic year, in view of the mandatory provisions contained in Section 14(6) of NCTE Act, 1993 r/w Sections 17(3) and 17 (4) of the Act; (b) that the format of undertaking to be executed by the applicant institute in Appendix https://hcservices.ecourts.gov.in/hcservices/ 1-D Form under NCTE Regulations 2002 and the format of undertaking to be executed in Appendix 2-C Form by the University under the NCTE Regulations 2002, make it clear that an institute is entitled to admit students immediately after recognition and that the restriction placed by the University Act and Statutes that admissions shall be made only after affiliation is granted, is an encroachment into the occupied field of a Central Legislation; (c) that in view of the judgments of the Supreme Court in Union of India vs. Shah Goverdhan L.Kabra Teachers' College ((2002) 8 SCC 228) and in State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Others (2006 (3) Scale 675), the field of Teacher Education is fully occupied by the NCTE Act, 1993, enacted by the Parliament under Entry 66 of List-1 and any encroachment made by any of the provisions of the relevant University Act shall be deemed to be inoperative; and d) that after the judgment of the Division Bench of this Court in Vinayaka Mission's College of Nursing and Para-Medical Sciences vs. The T.N. Nurses and Midwives Council (2006 (4) CTC 162), the University has no power to reject an application on the ground of a cut off date or on the ground that it is belated, once an expert body under the Central Legislation had granted recognition. 8. All the above contentions basically stem from the law now settled that the field occupied by NCTE Act, 1993, shall not be encroached by the University, in view of the relevant Entries in the Seventh Schedule to the Constitution. Entry 66 in List I (Union List) relates to "co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions." Entry No.25 in List III (Concurrent List) relates to "Education, including Technical Education, Medical Education and Universities". 9. Therefore, it is the stand taken by the petitioner that once the Parliament enacted a Legislation relating to a particular field of education, the expert body constituted under the said Legislation shall have supremacy over the affiliating bodies like the Universities, which are created only by the Acts of the Legislatures of the States. 10. In order to test the reach of the said contention, it is necessary to take a bird's eye view of the provisions of the NCTE Act, 1993, and the Regulations framed thereunder, as well as the University Act and Statutes. 11. The NCTE Act, 1993, came into force on 1.7.1995 and the https://hcservices.ecourts.gov.in/hcservices/ object of the Act as stated in the preamble is as follows:- "An Act to provide for the establishment of a National Council for Teacher Education with a view to achieving planned and coordinated development of the teacher education system through out the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith." Thus, the Act was enacted with the twin objects of:- (a) Achieving planned and coordinated development of teacher education system through out the country and (b) Regulation and proper maintenance of norms and standards in the teacher education system. 12. For the purpose of achieving the above objects, the Act provided for the establishment of a National Council, whose functions were laid down under Section 12 of the Act. Section 12 imposed a duty upon the Council to take steps to achieve the twin objectives of the Act and empowered the Council to do certain things for the purpose of performing its functions under this Act. Interestingly, one of the functions imposed upon the National Council under Section 12 (m), is "to take all necessary steps to prevent commercialisation of teacher education." This duty imposed upon the Council, is to be kept in mind while deciding the issue, since the main grievance of the petitioner is that the huge investment made by them in the infrastructure, would not get a return for the year 2005-2006, if affiliation is postponed to 2006-2007. 13. Chapter IV of the Act dealing with "Recognition of Teacher Education Institutions" makes provisions for recognition of institutions offering courses or training in teacher education, permission for any new course or training, the affiliation to be granted, the contravention of the provisions of the Act and its consequences and appeals. 14. The sheet anchor of the case of the petitioner is on the basis of the tone and tenor of sub Section (6) of Section 14, which reads as follows:- "(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." 15. The word "examining body" appearing in the aforesaid https://hcservices.ecourts.gov.in/hcservices/ Section 14(6), is defined under Section 2(d) to mean "an University, Agency or Authority to which an institution is affiliated for conducting examinations in teacher education qualifications." 16. Therefore the contention raised on behalf of the petitioner is that once an order of recognition is granted by NCTE, the University (which is the examining body) is obliged to simply follow suit, on account of the clear mandate of the Section that it "shall grant affiliation". 17. Other than Section 14, there are also other provisions in the Act, to which my attention was drawn by the learned counsel for the petitioner. Section 16 of NCTE Act, 1993 reads as follows:- "16. Affiliating body to grant affiliation after recognition or permission by the Council:- Notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day, - (a) grant affiliation, whether provisional or otherwise, to any institution; or (b) hold examination, whether provisional or otherwise, for a course or training conducted by a recognised institution, Unless the institution concerned has obtained recognition from the Regional Committee concerned, under Section 14 or permission for a course or training under Section 15." Sections 17(3) and 17(4) of the NCTE Act, 1993, read as follows:- "17. Contravention of provisions of the Act and consequences thereof.-- (3) Once the recognition of a recognised institution is withdrawn under sub-section(1), such institution shall discontinue the course or training in teacher education, and the concerned University or the examining body shall cancel affiliation of the institution in accordance with the order passed under sub-section(1), with effect from the end of the academic session next following the date of communication of the said order. (4) If an institution offers any course or training in teacher education after the coming into force of the order withdrawing recognition under sub-section(1), or where an institution offering a course or training in teacher education immediately before the appointed day fails or neglects to obtain recognition or permission under this Act, the qualification in teacher education obtained pursuant to such https://hcservices.ecourts.gov.in/hcservices/ course or training or after undertaking a course or training in such institution, shall not be treated as a valid qualification for purposes of employment under the Central Government, any State Government or University, or in any school, college or other educational body aided by the Central Government or any State Government." 18. A combined reading of Sections 14(6), 16, 17(3) and 17 (4) shows that what is primarily required by NCTE Act, 1993 is that the National Council and the University should act in tandem and not at a tangent. The plain and simple message that is sought to be conveyed by these Sections of the NCTE Act, 1993, is that the University shall grant affiliation only if NCTE grants recognition and shall refuse affiliation if NCTE refuses recognition. Similarly if NCTE withdraws recognition, the University shall also withdraw affiliation and the qualification acquired from an unrecognised institute shall not be treated as a valid qualification for employment in any State or Central Government or Government Body. In other words, the decision of the University to grant or not to grant or to withdraw affiliation, should coincide with the decision of the NCTE to grant or not to grant or to withdraw recognition. What is actually sought to be achieved by Sections 14(6), 16, 17(3) and 17(4) of NCTE Act, 1993, is an identity of mind and uniformity of objective to ensure that there is proper maintenance of norms and standards, as spelt out in the Statement of Objects and Reasons. The same cannot be stretched to such an extent, as to make affiliation, a mere counterfoil to an order of recognition. 19. The object of the above provisions of NCTE Act, 1993, is only to ensure coordination and co-existence with mutual respect between NCTE and the affiliating University and I am unable to see any intention on the part of the Parliament, to dwarf the Universities, by incorporating these Sections, in NCTE Act, 1993. 20. Coming to the case law on the issue, it is seen that in State of Tamil Nadu vs. Adhiyaman Educational and Research Institute (1995 4 SCC 104), the Supreme Court had an occasion to consider the role of the All India Council for Technical Education (AICTE) vis-a- vis the role of the University, with reference to Entry 66 of the Union List and Entry 25 of the Concurrent List. After comparing the Central Act viz., AICTE Act, and the Madras University Act, the Supreme Court found that there was a conflict between and overlapping of the functions of the AICTE and that of the University. Therefore, after listing out the "field occupied by the Central Act", in para-30 of the judgment, the Supreme Court sustained the role of the University in so far as the grant of affiliation is concerned. The following observations in para-30 of the said judgment, is of significance:- "The Central Act has been enacted by Parliament under Entry 66 of the List I to coordinate with and determine the standards of https://hcservices.ecourts.gov.in/hcservices/ technical institutions as well as under Entry 25 of List III. The provisions of the University Act regarding affiliation of technical colleges like the engineering colleges and the conditions for grant and continuation of such affiliation by the University shall, however, remain operative but the conditions that are prescribed by the University for grant and continuance of affiliation will have to be in conformity with the norms and guidelines prescribed by the Council in respect of matters entrusted to it under Section 10 of the Central Act." 21. While elucidating the ratio laid down under the said judgment, the Supreme Court made it clear in para-41(iv) that the question whether there was any repugnancy will have to be analysed from the facts of each case. Para 41(iv) of the judgment in Adhiyaman's case, reads as follows:- "(iv) Whether the State Law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case." 22. The next case arose under the Indian Medical Council Act, 1956, in Thirumuruga Kirupananda Variyar Thavathiru Sundaraswamigal Medical Educational and Charitable Trust vs. State of Tamil Nadu ((1996) 3 SCC 15). The Supreme Court held in that case that after the introduction of Section 10-A in the Indian Medical Council Act, the provision contained in Section 5(v) of the Tamil Nadu Dr. M.G.R. Medical University Act, requiring prior permission of the State Government for establishing a Medical College, became repugnant. 23. In Jaya Gokul Educational Trust vs. Commissioner of Secretary to Government (2000 (5) SCC 231), the Supreme Court again reiterated the principles laid down in Adhiyaman's case. But even while doing so, the Supreme Court did not reduce the role or status of the University, in so far as matters not covered by the Central Act were concerned. As a matter of fact, the Supreme Court took note in para-28 of the said judgment that under Regulation 8 of AICTE Regulations, the University is one of the Agencies consulted by the Council and hence the University had an opportunity even at that stage, (before the grant of recognition) to bring to the notice of the AICTE any default on the part of the college seeking recognition. Unfortunately, there is no provision in NCTE Regulations 2002, which is analogous to Regulation 8 of the AICTE Regulations. Therefore, no consultation takes place with the University, before the grant of recognition by NCTE. In para-30 of the judgment, in Jaya Gokul Educational Trust's case, the Supreme Court held that the "University should have acted on the basis of the permission granted by AICTE and other relevant factors in the University Act or Statutes, which are https://hcservices.ecourts.gov.in/hcservices/ not inconsistent with AICTE Act or its regulations." In other words, the Supreme Court not merely directed the University to go by the permission granted by AICTE, but also take into account "other relevant factors in the University Act or Statutes which are not inconsistent with the AICTE Act or Regulations." In para-31 of the same judgment, while issuing necessary direction to Mahatma Gandhi University, the Supreme Court made matters explicitly clear in the following terms:- "The direction to Mahatma Gandhi University to consider the application of the appellant for final affiliation or continuance of affiliation is confirmed and this has to be done on the basis of the approval granted by AICTE dated 30.4.1995 or any other relevant factors in the University Act or its Statutes, which are not inconsistent with the AICTE Act or its Regulations." 24. Thus, it is clear that the University need not necessarily act as an invalid creature, simply following the dictates of its Master namely NCTE. All the judgments of the Supreme Court arose out of cases where either the State Government insisted upon a prior approval from them or the University Acts contained a provision for prior approval from the State Government. The repugnancy noticed in almost all cases was only in the matter of the requirement of No Objection Certificate from the State Government and not with respect to the academic standards prescribed by the University. 25. Much reliance is placed upon the judgment of the Supreme Court in State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Others (2006 (3) Scale 675). My attention was particularly drawn to paragraphs 6,32, 35, 51, 52, 61, 62, 67, 73, 76 and 77 of the said judgment. As seen from paragraph 6 of the judgment, the case before the Supreme Court arose out of the University insisting upon a permission from the State Government, as a condition precedent for the grant of affiliation, by relying upon the provisions contained in Maharashtra Universities Act, 1994. The permission to be obtained from the Government had nothing to do with the maintenance of norms and standards or for attaining the excellence in the field of education. It is in this background, which is made out very clearly in paragraph-6 of the judgment that we have to read the contents of the other paragraphs of the said judgment. While paragraphs-32 and 35 extracted the provisions contained in the Act and the Regulations, paragraphs-51 and 52 of the judgment dealt with the law laid down in St. John Teacher Training Institute's case. In paragraph-61, the Supreme Court held that in so far as the coordination and determination of standards in institutions for Higher education and 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 State has no power to encroach upon the legislative power of the Parliament. In paragraph- 62, the Supreme Court laid emphasis that "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." But the last line of https://hcservices.ecourts.gov.in/hcservices/ paragraph-62 made it clear that the law laid down by the Supreme Court therein, was in the context of State Government refusing permission by relying upon a State Act. 26. In paragraph-67, the Supreme Court again held that the final authority vested with the NCTE. But again in the last line of the said paragraph, the Supreme Court made it clear that the absence or non-production of NOC was immaterial and irrelevant so far as the power of NCTE is concerned. 27. In paragraph-74, the Supreme Court held that "in accordance with the provisions of 1993, Act, final decision can be taken only by NCTE and once a decision is taken by NCTE, it has to be implemented by all authorities in the light of the provisions of the Act and the law declared by this Court". But the context in which the supremacy of NCTE was upheld by the Supreme Court in the said case, is made clear in paragraphs-76 and 77 of the said judgment, by holding Sections 82 and 83 of Maharashtra Universities Act, 1994, to be inconsistent with the provisions of NCTE Act, 1993. Thus, the State of Maharashtra case entirely related to the insistence by the University, of permission from the State Government to start a Teacher Training Institute, by taking umbrage under Sections 82 and 83 of the Maharashtra Universities Act, 1994. In that case, the Supreme Court was not concerned with a tussle between NCTE and University in the implementation of academic standards or any other matter connected with the improvement of norms and standards in the field of teacher education. As a matter of fact, if there is any provision in the University Act, the application of which would aid the process of achieving the twin objects for which NCTE was created, those provisions cannot be looked at, as being repugnant but should be looked at as being supplemental and supportive to the NCTE Act. For example, if the Univesity prescribes certain number of term days for a particular curriculum, it cannot be said that the absence of such an prescription under the NCTE Act, would make it repugnant to the NCTE Act. 28. Once the NCTE Act has made it clear that its object is to achieve planned and coordinated development of teacher education system and to regulate and maintain the norms and standards, the prescription of a specified number of term days would only aid NCTE in achieving those norms. To hold otherwise, would tantamount to ridiculing the very object of the NCTE Act. 29. In so far as the judgment of the Supreme Court in Union of India vs. Shah Goverdhan L.Kabra Teachers' College ((2002) 8 SCC 228) is concerned, the same arose under different circumstances. In the said case, the validity of Section 17(4) of the NCTE Act, was put to test on the touchstone of the independence of the State Government to prescribe its own standards for employment to the State Services. It was argued in the said case that Section 17(4) of the NCTE Act amounted to a law dealing with employment, infringing upon the right of the State Government. In paragraph-8 of the said judgment, the Supreme Court made it clear that any interpretation to any Act, should actually subserve the object for which the Act was enacted, in https://hcservices.ecourts.gov.in/hcservices/ the following words:- "Both Entries 65 and 66 of List I empower the Central Legislature to secure the standards of research and the standards of higher education, the object behind them being that the same standards are not lowered at the hands of the particular State or States to the detriment of the national progress and the power of the State Legislature must be so exercised as not to directly encroach upon power of the Union under Entry 66". 30. If we do not loose track of the objects for which NCTE Act was enacted, we would find