-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.4769 OF 2005 WRIT PETITION NO.4769 OF 2005 WRIT PETITION NO.4769 OF 2005 Shrinath Shikshan Prasarak Mandal, ) a Public Trust registered under ) Bombay Public Trust Act) having their ) Office at P.O.Kondhapuri, Taluka ) Shirur, District Pune. )...Petitioner Verus 1.The Registrar, SNDT Women’s ) University at Mumbai having its ) office at 1, Nathibai Tbhackersey ) Road, New Marine Lines,Mumbai-400020) 2.National Council for Teachers ) Education (NCTE), Wester Regional ) Office, Bhopal having its office at ) Manas Bhawan, Shyamla Hills, Bhopal-) 460 002. ) 3.The Director of Higher Education, ) Government of Maharashtara, Pune, ) having its officeat Central Building) Pune-411 001. ) 4.The Principal Secretary, Dept. of ) Higher and Technical Education, ) Maharashtara State, Mantralaya ) -2- Mumbai-400 032. ) ....Respondents Mr. C.J. Sawant, Senior Advocate with Mr. P.J. Pawar & Mr. S.H.Bhosale for Petitioner. Mr. A.A.Kumbhakoni, Associate Advocate General with Mr. P.I. Khemani, AGP for Respondent Nos. 3 and 4. Mr. Uday P. Warunjikar with Mr. Rakesh Johri & Balasaheb Bandal for Respondent No.2. Mr. R.A. Rodrigues with Mr. R.V. Phadnis for respondent No.1 WITH WITH WITH WRIT PETITION NO.6172 OF 2005 WRIT PETITION NO.6172 OF 2005 WRIT PETITION NO.6172 OF 2005 State of Maharashtra, through Higher ) and Technical Education Department )..Petitioner Versus 1.Sant Dnyaneshwar Shikshan ) Shastra Mahavidyalaya, ) Shrinath Shikshan Prasarak Mandal, ) -3- Kondhapuri, Taluka Shirur,Dist.Pune) 2.Smt.Kashibai Navle College of ) Education, Savitribai Phule ) Society’s Gat No.273/2, Godsewadi, ) Kamlapur, Taluka Sangoa, Solapur ) 3.Shri Gajanan Maharaj Shikshan ) Prasarak) Mandal’s Women Colege of ) Education at Otur, Dumberwadi, ) Tal. Junnar, Pune. ) 4.Jyotiba Shikshan Sanstha’s NTS ) College) of Education, Plot No.28, ) Shivram Nagar, Parbhani. ) 5.Dnyanganga College of Education, ) Zeal Education Society’s,No.25/3/3,) Hingane Khurd, Sinhagad Road, Pune.) 6.Janata Shikshan Prasarak Mandal’s ) Women B.Ed. College, Opp. R.T.O. ) Jehangirgar Colony, Railway Station) Aurangabad. ) 7.G.H. Raisoni Academy for Creative ) Teaching, G.H. Raisoni Foundation ) Society, Nagpur. ) 8.Mohamad Ali Johar Women’s College ) of Education, Everest Educational ) Society, Roshan Gate, Aurangabad. ) 9.Prajasattak B.ED. College,Indian ) Youth and Women Development Society) -4- Saiprabhu Apartment, Ravinagar ) Square, Nagpur. ) 10.Jijamata Bahuddeshiya Shikshan ) Prasarak Mandal, at Post Atoda,Tal) Jalkot, Latur. ) 11.Rajiv Gandhi College of Bachelor ) in Education Asthi,Allapalli,Tahsil Chamorshi Dist. Gadchiroli. ) 12.Panchganga Shikshan Prasarak Mandal At and Post Prayag Chikhli, Taluka) Karvir, Dist. Kolhapur. ) 13.Shri L.P. Raval College of ) Education and Research Raval ) Nagar, Near Main Post Office, Opp.) Rao, WAU Station, ) Mira Road (East), Thane. ) 14.Gramsudhar Yojana, Tal. Narhed, ) Dist. Nagpur. ) 15.Mahila Vikas Sanstha, Wardha, ) Kelkar Wadi, Nachangao, Wardha ) 16.Parwati Dhondiba Dhankude B.Ed. ) College, Shri Bhairavnath ) Shikshan Sanstha At and Post Baner) Tal. Haveli, Dist. Pune. ) 17.The National Council for Teacher ) Education, Hans Bhavan, Wing-II,1,) Bahadur Shah Zafar Marg, Near ITO,) -5- New Delhi110 002. ) (Through the Regional Director, ) NCTE, Western Region, Manas Bhavan) Shyamla Hills, Bhopal-462002. )..Respondents Mr. A.A.Kumbhakoni, Associate Advocate General with Mr. P.I. Kehmani, AGP for Petitioner. Mr. S.V. Pitre for Respondent No.3. Mr. Uday P. Warunjikar with Mr. Rakesh Johri & Balasaheb for Respondent No.17. Mr. N.S. Dhumal for Respondent No.13. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & DR. D.Y. CHANDRACHUD,JJ. DR. D.Y. CHANDRACHUD,JJ. DR. D.Y. CHANDRACHUD,JJ. DATE : 28th September, 2005 DATE : 28th September, 2005 DATE : 28th September, 2005 ORAL JUDGMENT (PER F.I. REBELLO, J.): ORAL JUDGMENT (PER F.I. REBELLO, J.): ORAL JUDGMENT (PER F.I. REBELLO, J.): . Rule in both the petitions. Respondents waive service. By consent heard forthwith. 2. We may briefly set out the facts of Writ Petition No.4769 of 2005. The petitioner is a Public Trust registered under the provisions of the -6- Bombay Public Trust Act and the Societies Registration Act. The petitioners are running a Secondary School having a strength of about 150 students. The petitioners desired to start an institute for B.Ed. course at Kondhapuri. To meet the requirement of infrastructure and other things, the petitioners have invested about Rs.1,17,09,553/- which amount has been expended towards land, land development, building, and other expenses as set out in para.2 of the petition. The petitioners made an application to SNDT Women’s University, Mumbai on 30th October, 2004 and paid the requisite affiliation fees. A copy of the application was also forwarded to the Principal Secretary, Higher and Technical Education, Mantralaya, Mumbai. The petitioners also applied to National Council for Teachers Education (NCTE), Western Region Office, Bhopal in prescribed format for permission to start B.Ed. College for Women with necessary application fees and format on 31st December, 2003 and deposited the original FDR of Rs.5,00,000/- towards Endowment Fund. The petitioners contend that SNDT Women’s University, Mumbai processed the petitioners application for affiliation and forwarded the same to the Principal Secretary, High & Technical Education, Mantralaya, Mumbai through the Director of Higher Education. The petitioners have averred -7- that their application was recommended for the establishment of the proposed B.Ed. College opened by the petitioners. NCTE by letter of 24th February, 2005 intimated to the petitioner whether the petitioners were ready for inspection as per the norms prescribed by NCTE. The Expert Committee of NCTE visited the petitioners campus on 6th June, 2005 and verified whether the infrastructure, staff and other norms were fulfilled. The report was submitted by the Committee to NCTE which approved and granted recognition for a B.Ed. College to be opened by the petitioners from the academic year 2005-2006 with an intake capacity of 100 students. After receipt of the said letter petitioners applied to the Government of Maharashtra on 4th July, 2005 for permission to start the college and/or inclusion of the name of the college in the Central admission process for the year 2005-2006. It is the case of the petitioners that the respondent No.4, the Principal Secretary to Department of Higher & Technical Education neither acted on the letter nor replied to the petitioner. As per the Maharashtra Universities Act after Government permission the institute can open the B.Ed. College. In the event the admission process is delayed the students will lose an academic year and the huge expenditure incurred by the petitioners on development of the -8- infrastructure and appointment of staff will be at stake. In para.1 of the petition, the petitioners have set out the various dates for completion of procedure for admission by the Central Admission Process. 3. In answer to the petition on behalf of respondent No.1 No.1 K.G.Bhide, Registrar, SNDT Women’s University has filed an affidavit. It is pointed out that the respondent No.1 did not recommend the case of the petitioners to respondent No.3 as in terms of the Perspective Plan for 2002-2007 the Districtwise allocation for Pune is only one college. It is further pointed out that considering the Perspective Plan the petitioners application was not recommended. Reliance is placed on a judgment of this Court at its Aurangabad Bench in Writ Petition No.7676 of 2004. Since we have disposed off other petitions based on this Judgment, for the sake of record we may point out that other institutions fell in the perspective plan prepared by the respective Universities. 4. On behalf of the respondent Nos. 3 and 4 a reply was also filed on 16th August, 2005 by Bipin Vamanrao Sutar, Under Secretary, Government of Maharashtra, Higher & Technical Education -9- Department. It is pointed out that the petitioner had to obtain NOC from the State Government. The State Government has an important role to play in the process of grant of permission by NCTE and that is demonstrated by the Apex Court in the case of St. John Teachers Training Institute vs. Karnataka Govt. reported in 2003 (3) S.C.C. 321 and the affidavit filed before the Apex Court by respondent No.2. It is pointed out that the State Government has been assigned an important task of development and improvement of teacher’s education and is vitally interested in education and specially in professional courses and it is the State Government which can correctly assess and know the extent of requirement of trained manpower and the supply of trained teachers keeping in view the requirements, change of occupation, etc. The input from the State Government by way of a NOC is vital for enabling the Council to discharge its functions and without the involvement of the State Government and availability of this vital input from the State Governments, NCTE cannot discharge its functions of grant of such permission. It is pointed out that there are 216 B.Ed. Colleges with an intake capacity of 20,180 students. In addition to these 216 existing B.Ed. Colleges, recently the NCTE has sanctioned additional 40 new B.Ed. Colleges on the basis of -10- NOC issued by the State Government prior to 2005-2006. It is also pointed out that the State Government has already issued NOC to nearly 80 new institutions upto 2004-05. There is sufficient intake capacity and in view of the sufficient intake capacity and other overall circumstances, a conscious decision was taken by the Cabinet Sub Committee in December, 2004 itself not to grant approval or issue NOC for starting any new institutions or increase the intake capacity of any existing institution imparting B.Ed. educational course for the year 2005-06. The decision by the Government was communicated to all the concerned Universities on 4th February, 2005 and the Universities were directed to communicate the Government decision to the concerned Institutions. The Universities, however, forwarded recommendations of the Institutions. It is on account of the policy decision of the State Government that the proposal of the petitioner institution was not forwarded to NCTE. It is pointed out that NCTE has not clarified under what circumstances NCTE had issued permission to the petitioners and other institutions without the NOC/endorsement of the State Government. Reference is then made to the Regulations made by NCTE for that purpose. -11- . An additional affidavit was filed by Bipin Vamanrao Sutar on 17th August, 2005. The decision of the Cabinet Sub Committee taken in its meeting dated 28th December, 2004 has been set out. It is pointed out that in the previous year 2004-05 the respondents had granted No Objection for starting new B.Ed. institution to about 80 institutions and accordingly communication was sent to NCTE, Bhopal vide communication dated 30th December, 2003 and 31st December, 2003. As the Cabinet took a decision to withdraw/cancel all these No Objection Certificates issued by the State Government some of the institutions to whom NOC were granted and subsequently cancelled filed Writ Petitions. A Division Bench of this Court was pleased to quash and set aside the decision of the State Government dated 17th January, 2004. However, liberty was given to the State Government to take such action in law after giving an opportunity of hearing to the petitioner therein. In so far as those institutions are concerned, the state Government revised the decision and issued fresh communication by treating the NOC as in operation. Similarly, in view of the order passed in Writ Petition No.762 of 2003 at the Nagpur Bench of this Court No Objection Certificate was also issued to 12 similarly situated institutions. After the decision of 28th December, -12- 2004, it is pointed out that the Government has not issued any single NOC in favour of any institution. The procedure for issuing NOC is then set out. . Respondent No.2 has filed an affidavit on 7th September, 2005. It is pointed out that the order dated 27th June, 2005 has been issued under Section 14 of the National Council for Teacher Education Act, 1993. NCTE had granted approval to petitioner’s for starting B.Ed. College with annual intake capacity of 100 students from the academic year 2005-06. It is pointed out that once NCTE has granted sanction, considering Section 14 of the NCTE Act and the Regulations framed, the State Government and SNDT University should have implemented the order by granting permission to start B.Ed. College. The source of power and the right of NCTE is then set out. It is pointed out that NCTE had framed guide-lines on 2nd February, 1996. Regulations have also been framed. The applications for grant of recognition must be accompanied with a No Objection Certificate. The Apex Court considering the Herculean task that NCTE has to discharge, has held that it was legal and proper to depend on the assistance of the concerned State Government. It is pointed out that the State Government did inform NCTE about its general policy -13- not to issue any NOC to new B.Ed. Institutions from the academic year 2005-06 in view of out-put of existing B.Ed. institutions. This was examined by NCTE which decided not to accept the same amongst others for the reason that it did not take into consideration the education policy of Government of India known as Sarv Shiksha Abhiyan which requires opening of large number of primary school and thereafter secondary schools; it did not take into consideration the preferential needs of hilly and remote areas, need of teachers for science, mathematics and English, need of non-formal education of adults, disabled, tribals, etc. It did not taken into consideration the need of trained teachers who do not seek employment in other institutions but wish to use the training in self employment such as opening of coaching classes., etc., and various other reasons which for the present need not be adverted to. . During the hearing of the petition an additional affidavit was filed on 14th September, 2005. It is pointed out that in the 73rd meeting the agenda included consideration of letter of State of Maharashtra dated 27th May, 2005, in which it was stated that the Government had decided not to issue any NOCs for starting new B.Ed. institutions during -14- the academic session 2005-06. The meeting was held between 3rd and 5th of June, 2005 which was attended by the State Representative of the State of Maharashtra. As the agenda could not be completed the meeting was continued on 16th and 17th June, 2005 at which meeting State Representative was not present. After considering the policy or views the Committee observed that the view expressed by the State of Maharashtara was not binding upon NCTE or conclusive. 5. We may now consider the reliefs and facts in Writ Petition No.6172 of 2006. This is a petition filed by the State Government. According to the State Government the Respondent No.17 i.e. the National Council For Teacher Education has granted permission to open 16 new B.Ed. Colleges in the State of Maharashtra inspite of the policy decision of the State Government. The reliefs, therefore, prayed are to quash the policy decision of NCTE to entertain/consider and/or grant any application of any educational institute seeking recognition/permission to open a new B.Ed. College within the State of Maharashtra during the academic year 2005-06 and to abide by the policy decision taken by the petitioner on 28th December, 2004 during the academic year 2005-06. Many of the facts -15- presently set out have already been set out in the earlier affidavit which has been filed in Writ Petition No.4769 of 2005 and to which we have exhaustively made reference earlier. Some of the facts bear repetition considering that this is a petition by the State Government. It is the contention of the petitioners in this petition that considering the scheme of the National Council for Teacher Education Act, 1993 the State Government has a vital role to play in the process of grant of recognition and that the Apex Court has accepted the vital and important role that the States Government such as the petitioner herein have to play in the process. It is pointed out that NCTE does not have any resources and/or its own infrastructure to assess the need of B.Ed. Education as also other relevant aspects including the scope for the trained teachers etc. throughout the country, much less a particular State. On account of that the 17th Respondent NCTE relies upon the resources of the State Government and its authorities to assess the relevant factors including the need for B.Ed. Education in the Country and the specific parts thereof. It is pointed out that NCTE has never brought to the notice of the petitioner any facts or figures by conducting any survey of its own for assessing the need/scope for B.Ed. Education -16- atleast in as much as the State of Mahatrahstra is concerned nor it has any material much less relevant and/or detailed particulars as to the facts and figures collected by the NCTE, independent of the present petitioner and on its own, which would enable NCTE to arrive at a conclusion as to whether any more B.Ed. Colleges are required within the area of petitioner. With a view to have a healthy competition between the educational institutions imparting education in the B.Ed. course, the State Government has taken a well thought out policy decision to the effect, that not a single new B.Ed. College than those already sanctioned are required to be approved and hence the prayers are to quash the policy decision of NCTE to entertain/consider and/or grant any application of any educational institution seeking recognition/permission to open a new B.Ed. College within the State of Maharashtra during the academic year 2005-06 and to abide by the policy decision taken by the petitioner on 28th December, 2004 during the academic year 2005-06. It is the contention of the petitioners in this petition that considering the scheme of the National Council for Teacher Education Act, 1993 the State Government has a vital role to play in the process of grant of recognition and that the Apex Court has accepted the vital and important role that the -17- States Government such as the petitioner herein have to play in the process. It is pointed out that NCTE does not have any resources and/or its own infrastructure to assess the need of B.Ed. Education as also other relevant aspect including the scope for trained teachers etc. throughout the contrary, much less a particular State. On account of that the NCTE relies upon the resources of the State Government and its authorities to assess the relevant factors including the need for B.Ed. Education in the Country and the specific parts thereof. It is pointed out that NCTE has never brought to the notice of the petitioner any facts or figures by conducting any survey of its own, for assessing the need/scope for B.Ed. Education atleast in as much as the State of Maharashatra is concerned nor it has any material much less relevant and/or detailed particulars as to the facts and figures collected by the NCTE independent of the present petitioner and on its own, which would enable NCTE to arrive at a conclusion as to whether any more new B.Ed. Colleges are required within the area of petitioner as such. The decision taken by NCTE, it is pointed out, and the reasons given for granting permission to open new B.Ed. College is unsustainable. It is also pointed out that the reasons given by the NCTE for concluding that the -18- policy decision of the petitioner dated 28th December, 2004 is not correct, are themselves factually incorrect and unsustainable and that the decision of NCTE is contrary to the policy decision of the petitioners dated 28th December, 2004. It is set out that in Maharashtra there are more than 350 Educational Institutions seeking to open new B.Ed. Colleges. It is also pointed out that the petitioner had granted some permissions to open B.Ed. Colleges for the academic year 2005-06. These cases were taken into consideration before the policy decision on 28th December, 2004 and after that the petitioner has not permitted a single new B.Ed. College. It is pointed out that while processing the applications to open new B.Ed. College, NOC/Endorsement of the petitioner is required. Reference is then made to various orders passed which may not be really necessary for deciding the controversy. It is pointed out that the petitioners have no remedy to challenge the decision of NCTE. The remedy of Appeal under the Act is not available to the petitioner, but only to persons aggrieved. It is pointed out that the persons aggrieved cannot be a party like the petitioner and in view of that the reliefs as prayed for. -19- . The petitioners have relied upon various documents including the affidavits filed on behalf of the NCTE in respect of other Petitions which were pending before this Court and which have already been disposed of by separate orders today. 6. On behalf of the respondent No.3 an affidavit has been filed pointing out that they had approached the State Government in October, 2004.In December, 2004 the University of Pune forwarded the proposal with the recommendation to the State Government for the establishment of the College. NCTE deputed a team of experts and after that in June, 2005 granted recognition for B.Ed. College for Women with intake capacity of 100 students. It is then pointed out that the State Government compels every Private Institutions to give an undertaking that no grant whatsoever will be claimed in future for running the College and it will be totally funded by Respondent No.3 and that it will be conducted on 100% No Grant Basis. 7. On behalf of NCTE, Regional Director Shri V.K.Dabral has filed an affidavit. It is pointed out that the petition ought not to be entertained as what the petitioner was seeking is virtually a relief contrary to the scheme of the Act and -20- contrary to the Judgment of the Apex Court in St. John’s Teachers Training Institute (supra). It is then pointed out that the case of the petitioner only rests on the policy decision of the State Government. It is pointed out that what the petitioner communicated to NCTE is the communication dated 28th December, 2004, with reference to the decision taken by the Cabinet Sub Committee meeting held on 28th December, 2004. NCTE contends that the same cannot be treated as a policy decision considering the provisions of the Constitution of India. It is then pointed out that NCTE is bound to consider cases on merits of the Applicant Institution. It is also pointed out that NCTE has not taken any general decision and the decisions are taken in accordance with the provisions of the Act while discharging its duties. The decision taken under Section 14 of the NCTE Act depends on the facts and circumstances of each individual cases. It is then pointed out that NCTE is a statutory Corporation established for specific purpose as more particularly provided in the object clause of NCTE. Section 12 of the Act lays down the duties of NCTE. The order passed by the NCTE under Section 14 is binding including on the petitioner. It is pointed out that under the NCTE Act, the petitioner has no role to play other than as agent for collecting the -21- data for and on behalf of NCTE. The reliefs, therefore, prayed are beyond the scope and the scheme of NCTE. The NCTE Act is enacted by Parliament in exercise of the powers under Entry No.66 of List I of the VII Schedule in the Union List. The State cannot make any Legislation in respect of the field of education as set out in List I. The State, therefore, it is submitted has no Legislative competency. As such the petitioners could not have taken any policy decision in respect of a matter covered by the NCTE Act. It is denied that NCTE does not have any relevant material. Considering Section 12 of the NCTE Act, it is bound to conduct survey and collect information. It is so doing over the years and taking policy decisions. It publishes periodicals and books based on information collected from various sources. It is pointed out that the decision taken by the NCTE even if contrary to