IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11-1-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI .. W.P.Nos.20569, 20882, 24058, 24059, 25943, 25998, 26003, 26006, 26011, 26012, 26013, 26014, 26015, 26212, 26361, 26467, 26469, 26547, 26556, 26591, 26643, 26683, 26686, 26690, 26693, 26697, 26813, 26814, 27035, 27053, 27153, 27211, 27214, 27234, 27270, 27395, 27404, 27407, 27468, 27604, 27616, 27662, 27696, 27743, 27751, 27856, 27893, 27929, 27933, 27989, 28288, 28378, 28382, 28385, 28390, 28596, 28936, 28980, 29256, 29262, 29547, 29718, 30712, 30766, 31075, 31167, 31188, 31257, 31400, 31638, 32037, 32045, 32214, 32327, 33604, 33608, 33741, 33864, 33984, 34001, 34163, 34498, 34932, 34938, 35063, 35182, 35344, 35476, 35797, 35798, 36194, 36958 and 37555 of 2007 and connected Miscellaneous Petitions ..... W.P.No.25998 of 2007: Self Financing Private Teacher Training Institutes Association (Regd.) rep. By its President Mr.T.V.K.Babu. .. Petitioner vs. 1.The State of Tamil Nadu rep. By its Secretary School Education Department Fort St.George Chennai 600 009. 2.The Director of Teacher Education Research & 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 New Delhi. 4.The Regional Director National Council for Teacher Education, C.S.D.Building H.M.T.Post Jalahalli, Bangalore 560 031. ... Respondents Writ petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records relating to the impugned order passed by the 1st respondent in G.O.(1D)No.108 School Education (U) Department dated 17.05.2007 as well as the consequential proceedings of the 2nd respondent in Na.Ka.No.7707/E3/2007 dated 01.06.2007, and to quash the same so far as it relates to the members of the petitioner Association are concerned. For petitioners: Mr. N.R.Chandran,Senior Counsel Mr. R.Muthukumarasamy, Senior Counsel for Mr. R.Sureshkumar Mr. B.Rabu Manohar Mr. Chandrasekaran for M/s. Chandrasekaran & Associates Mr.K.Selvaraj Mr.Hidayathullah Khan Mr.A.Sivaji Mr.E.Vijayan Mr.G.L.Ramshankar Mr.S.James Mr.V.Ramajegadeesan Mr.K.Soundara Rajan Mr.P.Srinivas Mr.R.Natrajan For respondents: Mr.N.Kannadasan Additional Advocate General III assisted by Mr.G.Sankaran Spl.Govt.Pleader (Education) and Ms.Dhakshayani Reddy Government Advocate (Education) Mr.K.Ramakrishna Reddy for NCTE Mr.P.R.Gopinathan for NCTE .. COMMON ORDER In these batch of writ petitions the Self Financing Private Teacher Training Institutes have challenged the validity of the impugned Government Order in G.O.Ms.No.108 School Education (U1) Department dated 17.05.2007 and the consequential proceedings of the Director of Teacher Education, Research and Training, Chennai as unjust, arbitrary, void, unworkable and unconstitutional in so far as they relate to the petitioners as well as the members of the petitioner Association. 2. The impugned Government Order passed by the State Government while prescribing guidelines for admission of students from the academic year 2007-2008 in the Diploma in Teacher Education has issued directions in the following lines: (i)granted permission to fill up the Government quota seats under Single Window System in four centres at Chennai; (ii)The academic year for the Diploma in Teacher Education is from July to June; (iii)The calendar of activities for the Diploma in Teachers Training as mentioned in the Annexure to the Government Order has to be followed from the academic year 2007-2008, unless specific changes are required during the coming academic years. 3. The said impugned Government Order contains an Annexure, in which it is stated that as per G.O.(1D)No.111 School Education (U1) Department dated 17.07.2003, reservation by subject-wise, communal-wise and special reservation shall be continued to be followed. The reservation under the said three categories are, 1.Subjectwise reservation: (i)out of total number of seats, 50% shall be filled up from students of Science faculties in +2 Examinations; (ii)25% of students to be filled up from students of Arts faculties in +2 Examinations; (iii)25% of students to be filled up from students of Vocational faculties in +2 Examinations. Under this category, there is a note to the effect that in the case of Anglo-Indian Teacher Training Schools, if students are not available as per the preparation, the seats can be filled up on merit without following subjectwise reservation. 2.Communal Reservation: (i) Scheduled Castes : 18% (ii)Scheduled Tribes : 1% (iii)Most Backward Class : 20% (iv)Backward Class : 30% (v)Open category : 31% 3.Special Reservation: To be filled up on horizontal basis. (i) persons with disability (as per the District Medical Board Certificate) : 3% under the Single Window System; (ii) Children of Ex-Servicemen : 132 seats; (iii)Legal heirs of Freedom fighters : 28 seats. It is also stated in Clause IV of the Annexure to G.O.Ms.No.108 that in respect of the Unaided Non- minority Private Educational Institutions, while admitting students under the Management quota, the policy of reservation of the State Government as per Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of Appointments or posts in the Services) under the State Act, 1993 (Tamil Nadu Act 45 of 1994) has to be followed. However, in respect of Unaided Minority Institutions, the reservation is not insisted. 4. The last clause in the Annexure relates to the calendar of activities to be followed from 2007-2008. According to it, (i)Diploma in Teacher Training School -- academic year is from July to June; (ii)Self Financing Teacher Training Teachers list approval - last date would be 20th of June every year; (iii)Advertisement in newspapers, printing and sale of applications, receipt of applications, registration of applications, preparation of merit list and communication to students for counselling under Single Window System -- all should be done between first week of May and second week of June; (iv)Proceedings to admit students under Single Window System  should be done from third week of June to First Week of July; (v)Applications to be issued to the students under Management quota in respect of Self Financing Aided Teacher Training Schools - in June first week; (vi)Beginning of classes for Teacher Training Institutes "including Self Financing and Aided Teacher Training Schools" -- should be with effect from third week of July; (vii)Last date for admission of students (including Self Financing and Aided Teacher Training Schools) - July 31st; (viii)Last date for approval of students under Management quota - August 31st; (ix)Observation and teaching practice - October till the end of November; (x)Internal assessment -- from March to April; (xi)Public Examination - in June. 5. It is further stated in the said annexure that no Institution can be started without approval from Southern Regional Council(SRC) of the National Council for Teacher Education (NCTE) and over and above the students strength that is approved by the NCTE shall not be admitted. It is further stated that as per the orders of the Southern Regional Council of National Council for Teacher Education, the approval of teachers must be obtained from the Director of Teacher Education, Research and Training, Chennai before admission of students. It is further stated that in respect of institutions which have obtained conditional recognition from NCTE for 2007-2008, after the teachers list is approved by the Director of Teacher Education, Research and Training and if the unconditional approval of NCTE is obtained, if only from 20th June, students can be admitted in that academic year, if the unconditional recognition is obtained beyond 20th June, the students can be admitted only in the next academic year. It is also further stated that students shall not be admitted beyond 31st July reiterating that July to June shall be treated as academic year for Diploma in Teacher Training courses provided the total number of working days would be 220 days. 6. Broadly speaking, the said impugned Government Order is made applicable to Self Financing Non-minority Teacher Training Institutions and also the Aided Private, Government Minority and Non-minority, Unaided minority institutions. Three conditions which are under challenge in these writ petitions are: (i) (a) Subjectwise reservation in filling up the seats in the Diploma in Teacher Training courses, viz., 50% from Science group students; 25% from Arts group students and 25% from Vocational group students. The said classification is challenged by the petitioners on the ground that it is beyond the competency of the State Government to impose such condition since the Central recognising /approving body, viz., National Council for Teacher Education has not insisted such condition while granting approval by virtue of the powers under Entry 66 List I of 7th Schedule to the Constitution of India and therefore, the field is occupied by the Union of India and the order passed by the State Government, contrary to the same, is illegal and ultra vires. The petitioners have relied upon various judgements of the Supreme Court in challenging the subjectwise reservation including the judgement of the Supreme Court reported in State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shatra Mahavindyalaya [2006 (9) SCC 1] and the judgement of this Court in Self Financing Private Teacher Training Institutes Association vs. State of Tamil Nadu [2006 (4) MLJ 1477]. (b) That apart, it is the case of the petitioners that such restriction will amount to interfering with the right of Self Financing Institutions to administer, which includes admission, by placing reliance on the judgement of the Supreme Court in T.M.A.Pai Foundation case (2002) 8 SCC 481 and the latest Supreme court judgement in P.A.Inamdar case(2005) 6 SCC 537 . (c) It is the further contention of the petitioners as submitted by the learned senior counsel Mr.R.Muthukumarasamy and Mr.N.R.Chandran and Mr.K.Selvaraj and other counsel that even otherwise, when the Annexure to the Government Order gives exemption to Anglo-Indian Schools from following the subjectwise reservation, the same should not be denied to the petitioners and therefore, the Government Order is arbitrary and violative of Article 14 of the Constitution of India. It is their submission that as long as the admissions are made transparently in a non-arbitrary manner and non-exploitative nature, it is not open to the State Government to impose such unreasonable conditions. (ii) As far as the next condition under the impugned Government Order, viz., imposing of communal reservation is concerned, it is the case of the learned senior counsel for the petitioners as well as other counsel that the Supreme Court in T.M.A.Pai Foundation and P.A.Inamdar cases has clearly held that insisting of such reservation policy in respect of admission of students in the Self Financing Non-minority and Minority Institutions is ultra vires. It is also their submission that when the Government of Tamil Nadu filed review petition in the said P.A.Inamdar case, basing reliance on the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of Appointments or posts in the Services) Act, 1993 (Tamil Nadu Act 45 of 1994), the review petition was dismissed by the Supreme Court, and the Division Bench judgement of this Court approving the conduct of the Government in imposing policy of reservation was stayed and in fact, the larger issue about the reservation is pending before the Apex Court. It is also the submission of the learned senior counsel that as it has happened in the case of B.Ed. Colleges before this Court in Tamil Nadu Self Financing Colleges of Education Management Association (Regd.) rep. by its President R.Tamil Mani and others vs. State of Tamil Nadu and others (2007 (6) MLJ 478), if the petitioners voluntarily desire to follow the reservation, it is open to them to do the same. (iii) The last point is about the validity of the schedule stated to be the calendar of activity from the year 2007-2008, especially with reference to admission for the year 2007-2008. According to the petitioners, as submitted by the learned senior counsel and other respective counsel, even for the academic year 2006-2007, the Government itself has extended the period of approval of admission of students upto 30.11.2006 and in respect of approval of teachers, which was originally fixed as 20.11.2006 as last date has been subsequently extended upto 09.03.2007 as per G.O.(2D)No.7 School Education (U1) Department dated 09.02.2007 and therefore, when for the 2006-2007 itself the schedule has not been followed by the respondents and NCTE has granted approval throughout the year, fixing of the calendar for 2007-2008 in the manner stated in the impugned Government Order as per the Annexure is unworkable. It is also their contention that when this Court has given judgement in W.P.No.47503 of 2006 based on which the impugned Government Order stated to have been passed by fixing the calendar of activities, the last date for approval of teachers was stated as 20.11.2006, based on which the order came to be passed, however, even before the said order was passed, the date of approval of teachers has been extended upto 09.03.2007 and therefore, according to the learned counsel for the petitioners it is not the intention of the Government to follow the schedule. Further, though the approval of teachers was extended upto 09.03.2007 for the academic year 2006-2007, but the students were permitted to be admitted upto 30.11.2006, which is before the date of approval of teachers, and hence, the understanding of the Government is that the students should be permitted to be admitted even before the approval of teachers and therefore, according to the learned counsel, approval of teachers by the Director of Teacher Education, Research and Training, is only an empty formality. The NCTE, the authority for recognition which has prescribed qualifications for the teachers, has perused the entire records relating to the teachers appointed by the Institutions before granting approval and therefore, the approval by the State Government is only in the form of verification of the correctness of the particulars furnished by the Managements to the NCTE and even in the event of the State Government finding some discrepancy in respect of the particulars, it is only open to the State Government to inform the same to the NCTE and the State Government of its own, cannot take any action regarding the cancellation of approval, etc., It is their further submission that incorporating such Schedule is not within the powers of the State Government. According to the learned counsel, when the Central authority by exercising its powers of maintaining coordination and standard as per the provisions of the Constitution of India has granted approval by referring the list of teachers appointed by the Managements after verifying that possess the necessary qualifications prescribed by the NCTE in its regulations, there is absolutely no necessity for the State Government to once again approve the list, and therefore, the Schedule which is annexed to the Government Order dealing with the approval of list of teachers is really a transgression of powers of the Central Government. It is also insisted by the learned counsel that the Appendix to the regulations of the NCTE does not only give the details about the qualifications required for the appointment of persons as Teachers in the Diploma course in Teacher Education along with experience, etc., but it also fixes norms and standards apart from directing the Management to file affidavit about the correctness of the particulars furnished and that as per the latest regulations, it is incumbent on the part of the Management to put all the particulars in Website and therefore, it becomes transparent to everybody and in such a situation the question of State Government approving the list of Teachers appointed by the Management does not arise. It is their further contention that after the latest regulations of the NCTE of the year 2005, there is no delegation of powers to the State Government and at the most, the State Government can only be a verifying authority, because the NCTE has granted unconditional approval by accepting the decision of this Court in W.P.No.15177 of 2007. 7. Mr.N.R.Chandran, learned senior counsel in addition to the contention of Mr.R.Muthukumarasamy, learned senior counsel would submit that in the subjectwise reservation, which is equivalent to regional selection, the chance of meritorious candidates is minimum as persons with lesser marks in different streams like, Arts and Vocational studies are able to get admission under 25% category of reservation, which will be a gross discrimination against the meritorious students. He would also submit that as far as the communal reservation is concerned, in the review petition in P.A.Inamdar case the Supreme Court dismissed the claim of the State Government made on the basis of Tamil Nadu Act 45 of 1994 and therefore, the State Government is estopped from raising the issue again. It is his further contention that in respect of the Schedule of activities, apart from infringing the powers of the Central body, it is purely without any reason, for, according to the learned senior counsel, among the professional courses, the Teacher Training Course is in fact the last resort and therefore, the last date for admission of students by third week of July is practically impossible. Further, the Schedule of activities was not incorporated in consultation with the NCTE at all. According to the learned senior counsel, even the First Year examinations for the candidates admitted in the year 2006-2007 have not been scheduled by the respondents, who are admittedly the examining body and admission for 2007-2008 is yet to be completed and the respondents themselves have not followed the scheme as propounded in the impugned Government Order. 8. On the other hand, it is the contention of Mr.N.Kannadasan, learned Additional Advocate General appearing for the respondents that the State Government being the examining body as per the NCTE Act, should be treated as affiliating body. He would also refer to various provisions of the NCTE Act to contend that the Act itself empowers the State Government to lay down norms and standards in consultation with the Central Government. He would further refer to the admission procedure found in the approval letter of the NCTE wherein it is clearly stated that the selection process of the students must be based on the policy of the State Government. He would also submit that the latest resolution passed by the NCTE based on the orders of this Court in W.P.No.15177 of 2007 itself would recognise the status of the State as examining body. According to the learned Additional Advocate General, the conduct of the State Government by incorporating the schedule to the impugned Government Order is in consonance with the NCTE regulations and it is not in derogation of the Central legislation as well as the regulations made by the NCTE. He would submit that it is true that under Entry 66 List I of Seventh Schedule, the Central agency is the authority, but, by virtue of Entry No.25 in List III (concurrent list) of the Seventh Schedule of Constitution of India, the State Government has the role to play while admitting students as examining body which cannot be said to be contrary to the provisions of the NCTE Act. According to him, no one of the provisions of the impugned Government Order is in violation of the NCTE Act. He would further submit that the Central authority, NCTE, has never raised objection about the Government Order and hence, it is not open to the petitioners to raise the same. 9. According to the learned Additional Advocate General when the State Government has not framed any Scheme based on the NCTE Act as examining body for the purpose of conducting the examinations bringing out the syllabus prescribing the term, days, etc., the Government Orders passed have to be treated as a proper guideline. He would submit that fixing of academic year from June to July in the impugned Government Order in normal understanding of any person would make no difference. He would submit that as far as the academic year 2006-2007 is concerned, some problems were created not because of the respondent, but partly because of NCTE in granting recognition throughout the year and also because of the grievance raised by the private Management like the petitioners, and therefore, various Government Orders were issued extending the time for approval of teachers and admission of students in the Institutions for the academic year 2006-2007. He would submit that as an agency, which is not unconnected with the conducting of private educational institutions, the State Government cannot stand as a passive spectator when the unscrupulous Managements, by giving false information to the NCTE, are obtaining approval and proceeding to commence classes without qualifying teachers, which will certainly affect the standard of students in the State of Tamil Nadu and the State Government is entitled to see that the academic career of students should be brought up in a proper manner. He would also submit that in respect of the newly recognised institutions only the extension of date for admission as well as approval of teachers has been given. Unless and until the teachers list is approved by the State Government as per the direction of the NCTE, such institutions are not entitled to admit any students. According to the learned Additional Advocate General, it is true that if any deficiency is found, it will be reported to the NCTE for proper action, but no one can compel the State Government to give approval to the teachers when the State authority has found that there is patent violation of norms prescribed by the NCTE in respect of qualification of teaches. It is his contention that it is strange to say that even before the approval of teachers with necessary qualifications, the institutions can admit students, which is antithesis to the concept of education itself. 10. I have heard the learned senior counsel and other counsel for the respective petitioners and the learned Additional Advocate General for the respondents and perused the entire records. 11. Considering the submissions made by the respective counsel, it can be categorised that the impugned Government Order is challenged on three grounds, viz., (i) Subjectwise allotment of seats in respect of Unaided institutions by directing 50% of the seats to be allotted to the science students; 25% to be allotted to Arts students and the remaining 25% to be allotted to the vocational stream students is ultra vires; (ii) The communal reservation by directing Self Financing Non-minority Teacher Educational Institutions to follow the policy of reservation in the following manner, viz., (a)Scheduled castes : 18% (b)Scheduled Tribes : 2% (c)Most Backward Class : 20% (d)Backward Class : 30% and (e)Open category : 31%, is illegal; (iii) The calendar of activity by fixing dates for admission etc., to be followed from 2007-2008, is not practicable, and therefore, illegal. 12. Out of the three grounds raised by the petitioners, in respect of the challenge on the basis of communal reservation, in a batch of writ petitions, viz., W.P.No.37233 of 2006 etc., batch, wherein G.O.Ms.(1D)No.226 School Education (U1) Department dated 28.08.2006, in which the policy of reservation of the State Government was directed to be followed in respect of admission of students in Teacher Training Institutions, was challenged and based on the judgement of the Apex Court, especially in P.A.Inamdar vs. State of Maharashtra (2005 (6) SCC 537), this Court has held that such reservation is not permissible in respect of admission of students in the private Self Financing Non- minority Institutions. In that case, it was held that in the event of the respective Institutions intending to follow the rule of reservation, there is no bar. In this case also as fairly submitted by the learned senior counsel Mr.R.Muthukumarasamy, it is left open to the petitioner Institutions to follow the said principle of reservation. In view of the same, no separate order is necessary as far as this issue is concerned and the order passed in the above batch of cases shall be binding. 13. Therefore, the only other two issues to be considered in these batch of writ petitions are, (i) Subjectwise reservation; and (ii) Calendar of activities to be followed from the year 2007-2008 onwards. 14. Before adverting the above said points, it is relevant to point out some of the provisions of the National Council for Teacher Education Act,1993. The said Act has been passed by the Government of India under Entry 66 of List I (Union List) of the Seventh Schedule to the Constitution of India. The said Entry 66 reads as follows: "66. Co-ordination and determination of standards in institutions for higher