1 CWP No.13038/2008 (B.Ed.matters) and other connected cass IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER (1) Bright Future Teacher Training V. State (SBCWP No.13038/2008) (2) Nav Bharti Shikshan Prashikshan V. State (SBCWP No.13039/2008) (3) Smt.Parmeshwari Devi Dhanraj V. State of Raj. And others (SBCWP No.13040/2008) (4) Alwar Teachers Training College V.State & or. (SBCWP No.13041/2008) (5) R.S.T.T.College . The State of Raj. & ors. (SBCWP No.13068/2008) (6) Suchita Kriplani Shikshan V. State and ors. (SBCWP No. 13070/2008) (7) Bal Bharti Training College V. State & ors. (SBCWP No.13072/2008) (8) B.R.Teachers' Training College V.State & ors. (SBCWP No.13073/2008) (9) Baba Bhagwan Das TT College V.State and ors. (SBCWP No.13075/2008) (10) Great India Teachers' Training College Versus State of Rajasthan and others (SBCWP No.13076/2008) Date of order ::: December 12, 2008 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr.A.K.Bajpai and Mr.V.D.Gathala, for the petitioner Mr.J.M.Saxena, Addl.AG for the State Mr.R.A.Katta, for the University of Rajasthan Mr.G.K.Garg, for the University of Kota Mr.Sanjay Pareek, for the N.C.T.E. REPORTABLE BY THE COURT 2 CWP No.13038/2008 (B.Ed.matters) and other connected cass (1) By the aforesaid writ petitions, the petitioners have challenged the impugned orders of rejection of No Objection vide orders dated 7/10.11.2008 which were passed after the final order passed by this Court in the writ petitions earlier filed by the present petitioners as well as other connected writ petitions on 5.11.2008. (2) Since common questions of fact and law are involved in these writ petitions, therefore, they are again clubbed together and are being decided together. (3) For the purpose of decision of these writ petitions, the facts of S.B.Civil Writ Petition No.13038/2008 Bright Future Teachers' Training College V. State of Rajasthan and others are taken as the leading facts. (4) The petitioner applied to the National Council for Technical Education (for short `the N.C.T.E.') for grant of recognition/permission for starting B.Ed. Course of one year duration with annual intake of 100 students. On 29.4.2008, the 3 CWP No.13038/2008 (B.Ed.matters) and other connected cass petitioner deposited the requisite fee/charges and made request to the University of Rajasthan for granting affiliation to the petitioner for B.Ed. Course. On 30.9.2008, the N.C.T.E. granted recognition/permission for starting B.Ed. Course of one year duration with annual intake for the academic year 2008-2009 subject to certain conditions and in case of non-fulfilment of the same, the recognition would be deemed to be for the next academic year i.e. 2009-2010. On 30.9.2008, the petitioner made a request to the State of Rajasthan to issue the No Objection in favour of the petitioner and to allow the petitioner to participate in the counselling for B.Ed. Course. (5) Since the petitioner was not allowed to participate in the counselling for admission in the B.Ed. Course, which was about to be held, the petitioner filed S.B.Civil Writ Petition No.12241/2008 before this Court for issuance of necessary direction to the respondents to allow the 4 CWP No.13038/2008 (B.Ed.matters) and other connected cass petitioner to participate in the counselling for admission of students in B.Ed.Course. It is pertinent to mention here that the aforesaid remaining writ petitions have been filed prior to 5.11.2008 and all of them have been disposed of on 5.11.2008 taking note of the fact that the counselling has been notified on 1.11.2008 and the same was to be over by 14.11.2008 but the applications of the petitioners were not decided. (6) By the aforesaid order dated 5.11.2008, the respondent State of Rajasthan was directed by this Court to examine the application of each of the petitioners and to pass appropriate orders by 10.11.2008 and on the same day, copies of the orders so passed be made available to the respective petitioner institution. Other necessary directions were issued to the University of Rajasthan as well as the Co- ordinator, P.T.E.T. with the further observation that in case of difficulty, it will be permissible for the State 5 CWP No.13038/2008 (B.Ed.matters) and other connected cass Government to co-ordinate with the other respondents and reasonably extend any date for completion of the formalities for the counselling. (7) On 7/10.11.2008, the respondent State of Rajasthan passed order that in order to provide equal opportunity, it would not be appropriate to grant admission to the persons lower in merit in the new Institutions and further in Science and Commerce, the students who obtained 30% marks in P.T.E.T.2008 have been admitted, therefore, keeping in view the standards of education and un-availability of the students above 30% marks, it would not be in the interest of the State to allow the College to participate in the counselling. In the said order, it has also been stated that considering the mandatory provision of completion of minimum 180 teaching days, the new Institutions cannot be allowed to participate in the counselling. Ultimately, it was concluded that for the academic year 2008-2009, participation of the petitioner 6 CWP No.13038/2008 (B.Ed.matters) and other connected cass in the counselling is not possible. For academic year 2009-2010, after examining the requisite eligibility, the participation of the respective Institutions in the counselling would be allowed as per the Rules. (8) It is stated in the writ petition that all the petitioner Institutions have submitted their applications either in the last week of September, 2009 or in the beginning of the month of October, 2008 but the respondent State, which has no effective role to play, after grant of the recognition by the N.C.T.E. has deliberately delayed the same and thereafter rejected their application(s) contrary to the recognition order of the N.C.T.E. of the respective Institution, more particularly Para 3.1 without consulting the University of Rajasthan and without further examining the fact that the students of the last counselling notified on 1.11.2008 were directed to report for admission in the respective 7 CWP No.13038/2008 (B.Ed.matters) and other connected cass Institutions on 14.11.2008 will complete 180 teaching days then how the students who would now be admitted in the next week starting from 17.11.2008 will not complete 180 teaching days. It is also stated that the said order has been passed by the State Government as an Appellate Authority over the respective recognition certificates granted by the N.C.T.E.and without consulting the University of Rajasthan, and that too, totally oblivious of the fact that both the aforesaid statutory bodies – N.C.T.E. and the University of Rajasthan which are the expert bodies established to maintain high standards in the education have not placed any bar for counselling. (9) Lastly, it has been stated in the writ petition that while granting the recognition in the last week of September, 2008, the N.C.T.E.never intended that the petitioner Institutions will not be allowed to participate in the counselling and further fact of affiliation with the University of Rajasthan and notifying the 8 CWP No.13038/2008 (B.Ed.matters) and other connected cass dates of academic calendar for B.Ed. Course is the prerogative of the University of Rajasthan. (10) The State of Rajasthan has neither filed reply in the earlier writ petitions nor in the present bunch of writ petitions. Ultimately, vide order dated 27.11.2008 all the aforesaid writ petitions were ordered to be listed on 2.12.2008 for final disposal. Thereafter also, time was available with the State Govt. to file reply. However, the State has defended its impugned orders on the same grounds mentioned in the respective orders of refusal to give the No Objection for the academic session 2008-2009. (11) University of Rajasthan has filed detailed reply and submitted therein that for P.T.E.T. 2008-2009, about 3 lacs candidates have applied and around 85,000 candidates have been declared eligible for counselling of B.Ed. and that the petitioner Institutions, except Great India T.T. College (SBCWP No.13076/2008) are to 9 CWP No.13038/2008 (B.Ed.matters) and other connected cass be affiliated with the University of Rajasthan, for which the University of Rajasthan has received the fees either in time or with late fees along with permission of the N.C.T.E. except in the cases of Bright Future Teachers' Training College (SBCWP No.13038/2008) and Alwar Teachers' Training College (SBCWP No.13041/2008), the University of Rajasthan has submitted that they have not received the permission granted by the N.C.T.E. as yet but since the same have been annexed with the writ petitions, the University of Rajasthan is yet to take decision on the applications submitted by the said Institutions. (12) It is stated at the bar by the counsel for the University of Rajasthan that for B.Ed. Courses, the University of Rajasthan has notified the start of the academic year from 26.9.2008 but since the State notified the last counselling on 1.11.2008, which was to be completed on 14.11.2008, the University of Rajasthan is 10 CWP No.13038/2008 (B.Ed.matters) and other connected cass considering extension of the date of start of the academic session 2008-2009. (13) Counsel appearing for the University of Rajasthan has categorically stated that the examinations will be held on completion of required minimum 180 teaching days from the date of commencement of the B.Ed. Course, in the light of the Rules and Regulations of the N.C.T.E. It is stated in the reply to the writ petition by the University of Rajasthan that as regards the examination, it is to be decided by the University of Rajasthan which is an expert body. (14) On raising the query whether there was any minimum qualifying marks in the P.T.E.T. Counsel for the University submitted that there is no minimum qualifying marks for B.Ed. either prescribed by the statute or by any other order by the University. There is also no order on record prescribing any minimum qualifying marks for P.T.E.T. by the State. The PTET was held to short list 3 lacs 11 CWP No.13038/2008 (B.Ed.matters) and other connected cass candidates for admission for few thousand seats and 85000 candidates have been declared eligible in the PTET as per the University’s reply. Under Ordinance 320 and 322 framed by the University of Rajasthan, relevant for the purpose of admission and examination of B.Ed. no minimum qualifying marks have been prescribed, therefore, the passing marks is the only relevant criteria for admission in B.Ed. For one more reason the State cannot prescribe the minimum qualifying marks as in case the students are lesser in number than the available seats, then there was no need of holding the P.T.E.T. Therefore, from all angles, the eligibility clause of Ordinance 320 and 322 of the University of Rajasthan are relevant in case of eligibility of the candidates. (15) On raising further query whether similar situation arose earlier and what was the stand of the University, counsel for the University stated that to meet out such type of contingency, the University 12 CWP No.13038/2008 (B.Ed.matters) and other connected cass may allow the Institutions to complete required minimum 180 teaching days either by holding extra classes on holidays or over time classes on teaching days and further counting one teaching day as two teaching days or by shortening the summer vacations in order to ensure that the examinations are held before the start of new academic session. (16) Mr.Katta appearing for the University has given the details of the applications as well as grant of affiliation to some of the colleges but despite that the State Government has not granted No Objection. The relevant column showing the writ petition number, name of the college, whether permission of NCTE was received and name of the college sent to the PTET as mentioned in the said Schedule is annexed and marked as Schedule-1 to this judgment which may be treated as part of this judgment. (17) Mr.Gopal Garg, counsel for the University of Kota has adopted the reply as 13 CWP No.13038/2008 (B.Ed.matters) and other connected cass well as the submissions made by Mr. R.A.Katta, counsel for the University of Rajasthan with the further submission that they will follow the academic calendar of the University of Rajasthan. (18) Main submission of counsel for the petitioners is that to meet out the requirement of infrastructure, library and the staff, all of them have invested huge amount and have further completed all other necessary formalities of affiliation and No Objection. The N.C.T.E. after inspection had granted recognition and the University has also sent names of some of the colleges for allowing them to participate in the counselling but the State Government has acted arbitrarily as an Appellate Authority over the recognition orders granted by the N.C.T.E. and the list sent by the University. The State is bound to honour the orders of the aforesaid statutory expert academic bodies as per the judgment of the Supreme Court in State of Maharashtra V. Sant Dnyaneshwar Shikshan 14 CWP No.13038/2008 (B.Ed.matters) and other connected cass Shastra Mahavidyalaya and others (2006) 9 SCC 1. The aforesaid judgment has been further followed by the Punjab and Haryana High Court in Vaish College of Education, Rohtak V. State of Harayana and others (CWP No.9270/2007 and other connected petitions, decided on 7.8.2007) whereby three directions have been issued which are relevant for the purpose of decision of these writ petitions. (19) Counsel for the petitioners submit that in the case before the Supreme Court the academic session was almost over, therefore, the case was ordered to be considered for the next academic session but in the instant cases, it is the beginning of the academic session 2008-2009 and this Court has also issued directions to dispose of the application for No Objection on 5.11.2008 during the process of counselling with the further observation that it would be permissible for the respondent to reasonably extend the date of counselling but the respondent State was 15 CWP No.13038/2008 (B.Ed.matters) and other connected cass pre-determined to reject the application on one ground or the other. (20) The respondent State has defended its order on the ground that in order to provide equal opportunity, it would not be appropriate to grant admission to the person lower in merit in the new institution and further in Science and Commerce the students who have obtained 30% marks have been admitted. Therefore, keeping in view the standards of education and non availability of the students above 30% marks, it would not be in the interest of the State to allow the College to participate in the counselling. Further, in case the students are now admitted then they would not be able to complete 180 teaching days, which is the mandatory requirement of the NCTE Regulations. (21) I have gone through record of the writ petitions and further considered rival submission of counsel for the parties. (22) Before proceeding further, I would like to quote relevant portion of Ordinance 16 CWP No.13038/2008 (B.Ed.matters) and other connected cass 320 and 322 of the University of Rajasthan, Para 3 of the recognition order and paras 5, 13, 15, 16, 62, 63&74, 64, 67&68, 76, 77 and 80 of the judgment of the Supreme Court in State of Maharashtra V. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others (supra). The same are as under: Ord.320. The objectives and the learning outcomes of the B.Ed. course are: OBJECTIVES: (a) to help future prospective teachers to develop competence to teach subjects of their specialization on the basis of an adequate theory of learning and a sound knowledge of the subjects. (b) To develop interests, attitudes and knowledge which will enable them (i) to foster the all round growth and development of children under their care and (ii) to provide guidance to individual pupils. (c) To develop an understanding of the aims and objectives of education in the Indian back-ground and to promote an awareness of the role of the school and the teacher in realising these aims and ideals. (d) To develop an understanding of the close relationship between society and the school between life and school work. (e) To build up a professional consciousness.” Ord.322. A candidate who after taking a Bachelor's/Shastri Degree of the University or of any other University recognized for the purpose by the Syndicate, with two teaching subjects (as defined in Note No.(i) below) has completed a regular course of study in a college affiliated to the University for one academic year and has during the course of the year delivered at 17 CWP No.13038/2008 (B.Ed.matters) and other connected cass least 40 lessons in a recognized school under the supervision of the staff of the college shall be eligible for admission to the examination for the degree of Bachelor of Education.....” (emphasis supplied) Para 3 of the recognition order dated 30.9.2008. “3. NOW, THEREFORE, in exercise of the powers vested under Section 15(3) (a) of the NCTE Act, 1993, the Northern Regional Committee hereby grants recognition/permission to Bright Future Teachers Training College, D-Block, Gautam Marg, Nirman Nagar, Jaipur-302019, Rajasthan for conducting B.Ed. Course of Secondary (level) of one year duration an annual intake of 100 (One hundred) students from the academic session 2008-09 under clause 7(11) of NCTE Regulation, 2007 notified on 10.12.2007 subject to fulfillment of the following: (i) The admission in the institution so recognised for the academic session 2008-09 shall be made only after affiliation by the examining body,before the commencement of the academic year and the admission of the students shall be completed well before the cut off date prescribed by the examining body for the academic year 2008-2009, failing which the recognition will be deemed to be for the next year academic year that is 2009-2010. (emphasis supplied) (ii) Formal orders for recognition/permission will operate for 2008-2009 only if requirement of 180 teaching days in the session would be fulfilled as per calendar of the University / affiliating body. The decision of the University in this record shall be final. (emphasis supplied) (iii) The institution shall, within 18 CWP No.13038/2008 (B.Ed.matters) and other connected cass one month of the receipt of recognition order, convert the endowment fund and reserve fund accounts into joint accounts to be operated along with an officer of the Northern Regional Committee. (iv) The institution shall comply with the various other norms and standards prescribed in the NCTE regulations, as amended from time to time. (v) The institution shall make admission only after it obtains affiliation from the examining body in terms of clause 8(12) of the NCTE Regulations, 2007 notified on 10.12.2007.” (emphasis supplied) Relevant portion of various paras of the judgment of Supreme Court (2006)9 SCC 1 “5. The petitioner is a public trust registered under the Bombay Public Trusts Act, 1950 as also society registered under the Societies Registration Act, 1860. It was the case of the petitioner that it was running a secondary school at village Kondhapuri, Taluk Shirur, District Pune, having a strength of about 150 students. The petitioner desired to impart education for BED course. To meet with the requirements of infrastructure, library, staff etc., it spent more than rupees one crore. The petitioner then made an application to SNDT Women’s University, Mumbai on 30.10.2004 by paying the requisite affiliation fees. A copy of the said application was forwarded to the Principal Secretary, Higher and Technical Education, Mantralaya, Mumbai. An application was also made by the petitioner to NCTE, Western Region Office, Bhopal on 31.12.2003 in the prescribed format for grant of permission to start BED college for women in accordance with the provisions of the National Council for Teacher Education Act, 1993 (hereinafter referred to as `the Act’) and the National Council for Teacher Education (Norms and Conditions for Recognition of Bachelor of Elementary Education) Regulations, 1995 (hereinafter referred to as `the Regulations’;). The petitioner also deposited the original fixed deposit receipt (FDR) of Rs.5 lakhs towards 19 CWP No.13038/2008 (B.Ed.matters) and other connected cass endowment fund.” “13. The High Court, therefore, was called upon to consider the role played by the State Government in the process of consideration of application by the institutions seeking recommendation of opening BED colleges by NCTE in the light of the provisions of the Act in juxtaposition to the extent of trained manpower required by the State and to take policy decision on the basis of output of teachers by such colleges. The Court was also called upon to consider whether in the absence of any material being made available by the State Government to NCTE the latter can process the application and take a decision contrary to the decision of the State Government. A question had also arisen as to whether the State Government can refuse permission to an institution which had been granted permission to start BED college by NCTE under the Act and whether policy decision of the State Government not to grant NOC would bind NCTE in the light of the provisions of the Act.” “15. The High Court held that in the light of the relevant provisions of the Act as interpreted by this Court in various decisions, the appropriate authority to take decision regarding opening of new colleges was NCTE and neither the State Government nor the University can act contrary to the decision of NCTE. According to the High Court, under the Act, the only authority which could take a decision regarding opening of new BEd college or increase in intake capacity was NCTE and such decision cannot be ignored either by the State authorities or by the University. So far as the function of the State Government was concerned, the High Court observed that it was in the nature of supply of necessary data and materials so as to enable the NCTE to undertake the process of coming to an appropriate decision but the State had no power to decide that it had taken a policy decision not to grant permission to open new BEd college for a particular period. Such decision was not in accordance with the provisions of the Act nor in consonance with law laid down by this Court. Regarding role of the University, the High Court held that it was incumbent on the University to take an appropriate decision and consequential action on the basis of the decision of NCTE and the provisions of the University Act required the University to implement such 20 CWP No.13038/2008 (B.Ed.matters) and other connected cass decision. It was, therefore, not open to the University to take any action overlooking the decision of NCTE and relying on a decision of the State Government. In the light of the above findings the High Court allowed the petitions filed by the institutions and dismissed the writ petition of the State Government.” (emphasis supplied) “16. The High Court, in the operative part, observed as under: “For the reasons stated in the judgment, we direct the Director of Higher Education, Government of Maharashtra to forthwith include the name of the petitioner Institute in the list of Central admission process for the year 2005-2006 BEd course consequent to the petitioner being allowed to start BEd college. The University considering Section 14(6) of the National Council for Teacher Education Act, 1993 to grant first-time affiliation to the petitioner College to enable the College to admit students. That affiliation would be subject to the petitioner College fulfilling the requirements as required by the University to grant first-time affiliation in terms of the University Act, Rules and statute to the extent that has to be complied with. It is made clear that those who have been admitted pursuant to the Central admission process are not eligible to apply against the seats now available and admissions already done will not be interfered with and the new seats will be filled in from amongst the candidates still on the merit list, by conducting a special round of admission. Rule made absolute to that extent in Writ Petition No.4769 of 2005. Rule discharged in Writ Petition No.6172 of 2005 subject to what we have set out in the body of the judgment.” (emphasis supplied) “62.So far as coordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively 21 CWP No.13038/2008 (B.Ed.matters) and other connected cass covered by Entry 66 of List I of Schedule VII to the Constitution and the State has no power