P^i^- fi -6) Writ Petition (c) No.4799 of 2009 (Petition under Article 226 of the Constitution of India) PETITIONER Kanti Darshan Colleqe of Education, Bhilai District Durg (C.6.) Pt. Ravi Shankar Shukla Universit/ Raipur A omother- POST FOR ORDER ON S'NOVEMBER. 2009 Sd/- Dhirendra Mishra Judge HI6M COURT OF CHHATrifiSARM 4T BII-4.SPUB Writ Petition fc) No.4799 of 2QQ9 (Petition under Art'wle 226 of the Constitution of India) PETITIONER Vs RESPON&ENTS Knnti Darshcn CoHege of Education run by Koanti Darshan Saikshanik Evam Computer Scaisthan, Kdnti Darshan Parisar, KOSQ Nagar, (Nehru Nagar) Bhilai, District Durg (C.6.5 Tnrough: Its President, Ramesh Kumar Shrivastava 1. Pt. Ravi Shankar Shukla Uniyersitv Raipur, Through Registrar University carripus, &E. Koad, Raipur (C©) 2. State of Chhattisgarh. Through- Secretary, School fcducaTion, onuwun, nnuriif'uiuy, isuipuF \J^v) DK5 Present: Mr. Jitendra Pali, Advocate for the petitioner. Mr. Manoj Kumar Dube, Advocate for respondent No.i Mr. Shashonk Thakur, Panel Lawyer for respondent No.2. OR DER (Passedon9S:.ll.Z009) Per Dhirendra Mishra. J^ 1. The petitioner h<xs filed this petition under Article 226 of the Constitution of India and prayed for following reliefs; "10.1. The Hon'ble Hiah Court may kindh/ be Dleased to call for entire record Dertainina to meetina of the Academic Council for the standing committee and records pertaining to recommendation of the petitioner College for opening construct established new Education Institution. 10.2. The Hon'ble High Court may kindly be pteased to direct the respondent No.2 to issue a corrigendum immediately correctino the order as per the recowmendations of Annexure P-4 issued by t5irectorate State Council for Education and Research (Annexure P-4). Respondent No.l Universitv be directed to issue the affiliation to the petitioner College. , 10.3. The Hon'bte Hiah Court may kindly be pleased to quash order (Annexure P-1). 10.4. Cost of the Detition be allowed. 10.5. Any other Relief (s) which the Hon'ble Hiah Court deeins fit and orooer in view of the facts <md circumstemces of the case, may also be qranted." 2. Briefly stated, 9r-iev<nice of the petitioner is -ttiat the petitioner coltege applied for recognition for runnina B.Ed. Course from National Council for Teacher Education, Western Reaional Committee, New Delhi (for short 'NCTE'), for an annual intake of 100 students on 21.10.2008. After scrutiny of the application submitted by the petitioner", after- obtaining report from the Visitina Team of NCTE and considerina the recommendation of the State fioyernment and the fact that the Committee is satisfied that the institution/societv fulfills the reauirements under the Drovisions of the National Council for Teacher Education Act, 1993 ffor short *Act, 1993'). rules and releyant reaulations includina the norms <md standards for the SEC teacher education programme, the NCTE, in exercise of powers under Section 14 (3) (a) of the Act, 1993, granted recognition/permission for conducting B.Ed. (Co-education) Course of SEC of one year durotion with an annual intake of 100 (5EC) from -the acodemic session 2009- 2010 under Clause 7 (11) of the NCTE (Recoanition Norms &Procedure) Re9ulation, 2007 (for short 'Reaulation, 2007') yide Annexure P-2 as per terms and conditions wentioned in the lefter of recognition. Apart from applyina for recognition from NCTE, the petitioner institution had also approoched the State Sovernment throuah the Schoot Education Departnient, whereupon; the State ©overnmentvide its memo dated 15.4.2009 Mnnexure P-3) addressed to the Reaional Director, NCTE; Bhopal its recommendation as per terms mentioned in the aforesaid document. However; due to inadyertent mistake in the recommendation letter of Annexure P-3. recommendation for increase l^? 1 of 100 students in B.Ed. Course was mentioned in place of recommendation for openina B.Ed. Course. When 1+)is mistake wos pointed out by the petitioner yide its memo dated 24.7.2009 (Annexure P-8) addressed to the Director, State Council for Education & Research Traininq, RaiDur ffor short 'SCERT'), the Director yide his memo dated 29.7.2009 (Annexure P-4) addressed to the Secretary, School Education DeDartment, reguested to amend the earlier recommendation dated 15.4.2009. Since the State ©oveminenthas not accorded approval for ooeninq new colteqe, therefore. as oer recominendation of the inspection cowmittee of the university, the Standing Committee of the Uniyersity Academic Council in its meetinq dated 8.8.2009 has decided to refuse affiliation for B.Ed. Course for the academic session 2009- 2010. The petitioner institution vide its opptication dated 12.8.2009 (Annewre P-7) requested for immedkite fresh inspection after constitutina insoection committee so that the institution could oar'ticiDate in the B.Ed. Counselina for the academic session 2009-10. r r - - - _ - - ^ ' •• 3. Resoondent No.l-University in its reoly has averred that the State fiovemment hasnot oranted oermission to the oetitioner institution to open a new college. The application for affiliation has been rejected as per recommendation contained in the special report filed by the Inspection Committee of the University. Kanti Darshan Saikshiinik Eyain Computer Sansthcn, a registered education society, has opened a college in the name of 'Kanti Darshon Mahavidhyaloy' at Bhilai with B.Ed. & B.Com classes for which recognition has been granted by the universitv. The societv aaain ooened a colleqe in the naine of 'Kanti Darshan Mahila Mahavidhyalay' with -the classes of B.Com & B.Sc. 1 year and the above course Wds also accorded permission. The petitioner society again cnplied for affiliation for B.Ed. Course to be run by 1K.&. Atahoyidhyalay, Bhikti' and the affiliation was accorded by the university. Thus, the petitioner society is already running a teachers ^l training course. Since the petitioner does not have independent building, library, lab; ctassrooms, hall ond even regular Principal has not been appointed in the coHeye, which is necessary as per Rule 3 of the Statute-27 of the universitv, the reguest of affiliation has been refused by the uniyersity. Allegation of yictimization hofi been denied. 4. The State Sovernment in its separate return haye ayerred that the ODDlication submitted by the oetitioner before NCTE was forwarded to SCERT which is under respondent No.2; for carryina out inaiection of the Dr'emises, facilities etc. ond for recominendation to the NCTE, whereupon, lefter dated 15.4.2009 (Annexure P-3) wos issued by the State. However, subseauent to issuance of letter of Annexure P-3, a letter of Annexure P-4 wos addressed to the Secretarv, Education Department of respondent No.2 and the Secretary sent corrioendum to NCTE, Bhooal. However, it subseguently reyealed that the oetitioner institution does not haye separate buildinq of its own. The building of Kanti Darshan ShiRsha Mahayidhyalay is beina shown as -the building of K.D. College of Education. The petitioner society is seeking to run two seBarate education colleqes under the societv in the same buildina. In these circumstoinces, the Detitioner institution connot be recommended for startina fresh B.Ed. Course neither its case can be recommended for increase of seats in B.Ed. Course. 5. Mr. Poli, learned counsel aooearinq for the oetitioner institution arqued that the School Education Department after due verification of the infrastructural focilities ovailobte in the petitioner institution had recommended for opening of new B.Ed. Course in the petitioner institution. t)ue to inadyertent error crept in the recomniendation letter of Annexure P-3, the same was souqht to be rectified yide memo of Annewre P-4 addressed by the Director, SCERT to the Secretory, School Education Department clearly mentioning that recommendation of Annexure P-3 was for openina B.Ed. Course in the petitioner institution. From the return of respondent No.2 it is clear that the recommendation of Annexure P-3 was made after due verification by ']./•(' \ •the SCERT and correction in the recommendation, as Dro&osed vide Annexure P-4, was also forwarded bv the Secretarv to NCTE. No fresh inspection was ever conducted by the SCERT after recommendation of Annexure P-3 & P-4 and no reoort has been procured in this regard ond a bald statement has been made in the counter affidavit that the petitioner institution does not have any independent buildina for runnina the colleae. • He further argued that document of Annexure Rl-1 i.e. inspection report submitl'ed by the in^ection comwittee to the University, clearly mentions that the petitioner institutjon has necessary infrastructure for ooeninq new B.Ed. Course, however, in Para-14 of the reoort an adyerse comment has been made by the inspectina conimittee that 'on inspection it was found that the oetitioner institution does not have onv seoarate buildinp, librarv, lab, classrooms, hall and other facilities and eyen a Dermanent Princioal has not been aooointed dnd thus. K.D. Colleae of Educotion does not have anv seoarate buitdina'. The observction recorded in Para-14 of the inspection report runs contrary to the earlier part of the report in which details of facilities available in the oetitioner institution has been mentioned wi-rii facts and figure. He vehemently argued that NCTE is flpex body in the matters of teacher education institution and admitt'edly, the NCTE hns recoanized/oermitted the oetitioner institution to ooen B.Ed. Course with cn intake of 100 students. From the documents of Annexure P-3 & P-4 and pleadinqs of the State, it is monifestlY clear that the State has already decided to recommend the case of the petitioner institution for ooenina B.Ed. Course. It was arqued that once recognition is granted by the NCTE under Section 14 (6) of the Act, 1993. the University is obliged to arant affiliation to such institution and the Acts. Ordinances ond Regulations of the Uniyersity do not OBDlv to such case. When the NCTE arants recoanition. based on the rr / - -/ ^ ' finding that the college has necessary infrastructural facilities, the 6 uniyersity has no power or outhority to decline affiliction on the around of lack of infrastructural facilities. If the insoection reDort of the university finds lack of infrastructural facilities and recoanition has been obtained illeaallv, it mav brinq the same to the notice of NCTE, so that •the NCTE can cancel the recoqnition under Section 17 of the Act. 1993. It inav also challenge the recoanition aranted bv filino an ODDea! under Section 18 of the Act, 1993 before the NCTE. 6. Mr. bubey, tearned counsel for respondent No.l a^ued that first thirteen paragraphs of the inspection report, in fact, have been filled- in by -tfie oetitioner institution itself and actual findina of the inspection coinmitt-ee, based on the physical verification, is contained in Para-14, as in Para 1 to 13 the information Drovided by the oetitioner instiliition have been reoroduced and the same are not the findinqs of the insDection committee. Referrina to Clauses-6 & 8 of the recoqnition order, it was araued that the admissions are to be aiven onh^ after offitiation from the examining body in terms of Clause-8 (12) of the Reoutation, 2007. The institution is reouired to futfill reguirements that mav be prescribed by the regulatory body like U6C. affiliatino university body & the State ©oyemment.Since the shortcominos pointed out by the inspection committee in para-14 are manctatory requirements under the Statute-27 & 28 of the Statute & Ordinonces of the Uniyersity. The petitioner cannot claim affiliation as a matter of right, particularly when the State Sovemrnent has not accorded perniission for opening new B.Ed. Course. 7. Similar ar9uments were advanced by learned counsel for respondent No.2. 8. I haye heard leamed counsel for the parties. 9. From the averments in the return filed by -the State it is clear that the dDDlication submitl'ed bv the Detitioner before the NCTE was forwarded to the SCERT, which is under respondent No.2, for carrying out inspection of the premises, facilities etc. cuid sent -Hie recommendation to NCTE. Thereafter, recommendation of Annexure P- 3 was issued by -Hie State. It is also not in dispute that inadvertent error present in the recommendation of Annexure P-3 was subsequently proposed to be rectified yide Annexure P-4 by the &irector, SCERTthrouah the Secretarv. School Education beoartment. -» - - -- ^^ _----—-----^.. - -^.—..;----.^ who in turn forwarded the same to the NCTE. No additional document has been filed by the State to show that after sendina recommendationof Annexure P-3 <S P-4 ouiv fr-esh insoection was conducted in the premises of -the petitioner institution. 10. Similarly, the universit/ has cited the inspection report (Annexure Rl- 1) of the Inspectina Committee; constituted by the university, of the Detitioner's Dremises for refusina affiliation to the oetitioner insti-hjtion, however, from perusal of the report- of Annexure Rl-1, which has been filed by the university, we find that in Para 1 to 13 infrfflstructural facilities ayailable in the institution has been detailed with facts and fiaure, howeyer, at the end of the reoort it has been observed that the Detitioner institution does not have <my seoarate buildinq, tibrary, lab, classrooins, hall and other facilities and eyen a Dermanent Princgal has not been aooointed. The aboye obseryation has been made without commenting upon the earlier entries in the report from Para 1 to 13. 11. In the matter of State of Maharashtra Vs Sant Dnyaneshwar Shikshan Shastra AAahavidyalaya and others the Hon'ble Supreme Court referring to its judgment in the matter of Jaya 6ol<ut Educational Trust Vs, Commr, & Secy, to 6ovt. Higher Education Daptt. with opproval hac observad thus: "Therefore, the State could not haye any 'polic^ outside the AICTE Act and indeed if it had a oolicy, it should haye olaced ' (2006) 9 SCC I 2 /'innni < c'r'r1111 \A.WV/ J O^^V/ A./ t /"^-^ \ "I \ '^^/ ^.^^' •the same before AICTE ond that too before the tatter qranted permission. Oncs Ihat procedure laid down in the AICTE Act and Reauhtions had been followed uncter Rewlation 8(4), and the Central Task Force had also given its famurable recommendations, -there wasno scope for wiy further objection or cpproyal by itie S'tvite. We way however add that if thereafter, any fresh facts came to tight after an approval was grcnted by AICTE or if the State felt that some conditions attached to the permission cnd required by AICTE to be coinplied with; were not complied with. then the State ©overnmentcould always write to AICTE, to enable the latter to -take appropriate action." (emphasis supolied) Referrina to its earlier judament, the Honble Suoreme Court obseryed thus: "62. From the above decisions, in our judgment, the law appears to be very well settled. So far as coordination and determination of sttindards in institutions for higher education or research, scientific cnd technical institutions are concerned, Ihe sub tect is ewlusively coyered by Entry 66 of List I of Schedule VEE to the Constitution ond the State has no power to encroach upon the legislatiye power of Parliament. It is only when the subiect is covered bv Entrv 25 of List HI of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as -the State Leaislatures and apDrooriate Act can be made by the State Legislature subject to limitations <md restrictions under the Constitution. 63. In the instont case, admittedly, Parliament hos enocted the 1993 Act. which is in force. The preamble of the Act provides for estabtishment of National Council for Teacher Education (NCTE) with a yiew to achievina planned and coordinated development of the teacher-education system throughout the country; the regulation and proper maintenance of norms and L.,! standards in •the teacher-education systein and for inatters connected therewith. With a yiew to achievina •that obiect, the National Councit for Teacher Education has been established at four olaces bv "riie Central 6oyernn>ent. It is thus clear that the field is fullyw\d conipletelyoc.cuyed by an Act of Parlwment caid coyered by Entrv 66 of List I of Schedule VII. It is, tharefore, not ooen to the State Leqislature to encroach uoon the said field. Parliament atone could haye exercised the power by inaking aoDroDriate law. In the circumstonces, it is not ooen to the State Soyernment to refuse permission relyinq on a State Act or on oolicy consideration". 12. After considering yarious arguments putforth by the State of Mahontshtra, it was finally observed -that final authority lies with the NCTE ond the NCTE cannot be deoriyed of its outhority or oower in takina aDDrooriate decision under the Act irresoective of absence of no obiection certificate bv the State Soyemment. Absence or non- oroduction of NOC by the institution, therefore, was immaterial and irreleyant so far as the oower of NCTE is concerned and it has been held in Para-80 that as per scheme of the Act, 1993 once recognition has been granted by NCTE under Section 14 (6) of the Act, every uniyersity ("ewminin9 body") is obliged to gront affiliation to such institution and Sections 82 & 83 of the University Act do not apply to such cases. 13. This Court vide order dated 09.10.2009 (Annexure A-l) passed in W.P. (c) No.4061/09 fMnitri Educational ond Cultural Association, Bhiali Vs. State of C.6. & others) while considerino the identical issue has held that unless the recoanition gnmted to the petitioner is stayed or set aside by the competent authority, the university is bound to act under Section 14 f6) of the Act, 1993. If the uniyersi-ty, on the basis of inspection report of its inspection committee, is of -the opinion that NCTE accorded recoqnition wi-thout essential infrastructural facilities; it has to take recourse to the remedies available to it under the i's^iK-^^K'.^^'^.ifi-fSi^'.-'^W^ -^ 10 1 ^A Statute against the grant of recognition by NCTE by forwarding report to the NCTE with a reauest for withdrawal of recoanition or in •t+ie alternatiye, may challenae the recoanition, so qranted, bv filina aooeal under Section 18 of the Act, 1993. 14. Relyina upon the decision of •the Hon'ble Supreme Court in the matter of Sant Dnyaneshwar Shikriian Shastra Mahavidhyakya it is held that it is not open to the State fiovemment to refuse permission to open new B.Ed. Course in the oetitioner institution and the final authority lies with the NCTE. NCTE cannot be deorived of its oower or authoritv in takina appropriate decision under the Act; 1993 irrespectiye of absence of NOC by the State Sovernment. 15. In the result, the petition is allowed. Respondent State is directed to DOSS oDDroDriate orders keeoina in yiew its own recommendation of Annexure P-3 and the memo (Annexure P-4) of the Director, SCERT, addressed to the Secretary, School Education Deoartnient. On oossina of aDDrooriate orders bv the State fiovemment, as directed, the resoondent-University diall also comDlY with the mandatory orovisions of sub-section f61 of Section 14 of the Act, 1993 in the matt-ers of arant of affiliation to the Detitioner institution. 16. No order as to costs. Roshan/- Sd/- DhirendraMishra Judge