SCA/21306/2007 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21306 of 2007 With SPECIAL CIVIL APPLICATION No. 21331 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SHREE VIDHYAPREM VARDHAN EDUCATION TRUST - Petitioner(s) Versus THE STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS MAMTA R VYAS for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR AR THACKER for Respondent(s) : 2, MR AJ SHASTRI for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 18/01/2008 ORAL JUDGMENT SCA/21306/2007 2/28 JUDGMENT 1. Rule. Mr. Thakkar waives notice for the University and Mr. Shastri waives notice for respondent No.3. With the consent of the learned advocate appearing for both the sides, the matter is finally heard. 2. It appears that the issues which arise for consideration in the present cases are covered by the decision of this Court (Coram:D.A. Mehta, J.) dated 01.11.2007 in Special Civil Application No.19088 of 2007 and allied matters. In the said Judgement, this Court inter alia observed at para 16 to 35 as under: “3. Under Chapter-IV of the National Council For Teacher Education Act, 1993 (the Act) which deals with RECOGNITION OF TEACHER EDUCATION INSTITUTIONS Section 14 provides for the procedure for obtaining recognition. Sub-section (6) of Section 14 of the Act is the trump card on the basis of which the petitioners have moved the petitions founded on the submission that every examining body is bound to grant affiliation to the Institution who has been granted recognition by NCTE. Over and above reliance on Section 14(6) of the Act, reliance has also been placed on the decision of the Apex Court in the case of State of Maharashtra V/s. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors. JT 2006(4) SC 201. In light of the aforesaid decision of the Apex Court, the learned advocates for respondent- Universities did not dispute the fact that upon recognition having been granted by NCTE, the examining bodies had to grant affiliation but, the principal thrust of the argument was based on the rights of the University to seek adherence by the SCA/21306/2007 3/28 JUDGMENT Institutions to the academic schedule fixed by the University. The submission was that the academic schedule was not fixed only for the B.Ed. Course but was a schedule fixed for all other courses in all other faculties of the Universities and if other Institutions / Colleges conducting various other courses were required to abide by the academic schedule, no exception could be made in case of Institutions / Colleges intending to run B.Ed. Course, only because NCTE kept on issuing recognition orders without having regard to the academic schedule of the respective Universities to which the Institutions were seeking affiliation. 4. The grievance is justified. Even the learned counsel for NCTE could not seriously resist this submission. It was submitted that in fact to avoid such a situation, NCTE had amended the relevant Regulation so as to remove the last date for application for recognition of aspiring Institutions and simultaneously also ensured this by issuing recognition orders wherein no particular academic year was mentioned. Thus leaving it open to the examining body to grant affiliation to an Institution on the basis of the academic schedule of the examining body itself. 5. The learned senior counsel appearing for the Universities have submitted that irrespective of allotment of students and the admission granted in their favour by the petitioners, the Universities would like the Court to examine the legality and validity of the decision taken by the Universities to refuse affiliation / allotment of students for the current academic year, namely, academic year 2007-08 in the context of the academic schedule fixed by the Universities, as well as the provisions that require requisite percentage of attendance by every student in each SCA/21306/2007 4/28 JUDGMENT academic term so as to achieve a composite minimum attendance. According to the learned senior counsel for the Universities, the issue has not to be viewed only from the stand-point of the petitioner-Institute or the University but has also to be considered from the angle of the students themselves, including the demand for reshuffling by the students who have already been granted admission in a particular Institution, but are seeking admission to a preferred Institution located in city / town of preference of the student depending on various factors like native place of the student, residence of the student, etc. 6. Though contentions were raised on behalf of the Universities regarding the last date for making an application by the students and allotment of students in context of the right of the Universities to adhere to academic schedule fixed by the Universities in so far as present group of petitions is concerned, the Court does not enter into the said controversy considering the fact that the students have already been granted admission pursuant to orders made by this Court. 7. On behalf of the respondent- Universities, attention was invited to Norm 2.0 which deals with Duration and Working Days as provided in Norms and Standards for Secondary Teacher Education Programme leading to Bachelor of Education (B.Ed.) Degree as appearing in Appendix-I to Regulations 2006. It was submitted that Norm 2.1 stipulates that B.Ed. programme shall be of a duration of at least one academic year, but the term “Academic Year” having not been defined by either NCTE Act or the Regulations thereunder should get meaning from the academic year fixed by the Examining Body and that should be the period which should be taken into consideration for the purpose of duration of the B.Ed. SCA/21306/2007 5/28 JUDGMENT programme. That in the event, recognition order from NCTE is issued and/or received after the date of commencement of the academic year as fixed by the examining body neither the petitioners nor NCTE should be heard to submit that by virtue of provisions of Section 14(6) of the Act and the Apex Court decision in case of State of Maharashtra V/s. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors.(supra) affiliation and allotment of students must be made regardless of the academic year having commenced. That the right available to an applicant-Institution to seek affiliation and allotment of students can be exercised by the Institution for the immediately succeeding academic year, but none can be heard to contend that affiliation must be granted and students must be alloted during an academic year regardless of the time that may have elapsed vis-a-vis the academic schedule fixed by the Examining Body / University in a given case. 8. In this context, attention was also invited to Norm 2.2 which provides for Working days and stipulates that there shall be at least 200 working days out of which at least 40 days shall be for practice-teaching in about ten schools at different levels like upper primary / secondary / senior secondary level, and such period of 200 days has to be exclusive of the period of examination and admission etc. In other words, the period of 200 days stipulated by Norm 2.2 was for the purpose of imparting theoretical tuitions and practical teaching comprising of each working day to be a minimum of six hours in a six-day week. Elaborating on the submission, it was contended that the Norm itself required that for at least 200 working days, which is the minimum prescribed, physical presence of teacher- students and teachers is necessary in the Institutions to ensure their availability for individual advice, SCA/21306/2007 6/28 JUDGMENT guidance, dialouges, and consultation as and when needed. That this minimum presence as prescribed by the Norm laid down by NCTE cannot be equated with, nor can be substituted for, the minimum attendance prescribed by Examining Body / University as per its own academic schedule read with the relevant provisions which provide for the prescribed percentage of attendance. 9. According to the learned counsel for respondent-Universities, NCTE vide Norm 4 provided for staff, and their qualifications. However, NCTE, after granting recognition, had virtually shifted the responsibility of ensuring availability of adequate staff to be monitored by the Examining Body / University and for ensuring this also, the Examining Body / University had to be granted time during which such an exercise of verification could be undertaken. It was therefore submitted that the Examining Body / University cannot be expected to grant affiliation and allot students immediately upon Institutions approaching the University, nor can the University grant affiliation round the year disregarding academic schedule fixed by the University. 10. A further contention was that in the earlier Regulations of 2002 - NCTE had provided 31st December of a calender year as the dead line for receiving applications from Institutions seeking recognition but in the present Regulations, 2006 no such dead line is provided. That this has resulted in a situation where NCTE keeps on receiving applications round the year and also grants recognition at any time of the year, in the process upsetting the academic schedule of the respective examining body. 11. The last submission made on behalf of the respondent-University was that NCTE must be directed to ensure that grant of SCA/21306/2007 7/28 JUDGMENT recognition is made on or before a particular date of a calender year so as to ensure that the students are able to obtain admissions for the academic term that normally commences from 15th June of every calender year. This in turn would ensure compliance with the Norm of NCTE regarding Duration and Working Days and also enable the students to meet with prescribed statutory percentage of attendance, as prescribed by the respective Universities. That even if NCTE did not mention in its order of recognition that such order was applicable for a particular academic year NCTE must state in clear terms in the recognition order that the affiliation and allotment of students shall be subject to the academic schedule of the examining body. Thus indicating to the Institutions that on basis of the recognition order, affiliation can only be sought for the immediately next succeeding academic year. 12. During course of hearing one of the issues on which lot of debate took place was the right of the Examining Bodies / Universities to inspect the infrastructural facilities of the applicant- Institutions. The stand of the petitioners being that in light of the Supreme Court decision in case of State of Maharashtra V/s. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors.(supra) such a right no longer existed even if provided in the respective Statutes of the University. On the other hand, the stand of the University was that if the examining body was to ensure compliance with the Norms and Standards stipulated by NCTE, the right of the Examining Body / University to inspect infrastructural facilities cannot be taken away, and such right, even if not exercised before affiliation and allotment of students should be permitted to be exercised even post affiliation to verify the availability of infrastructure as shown to be existing as per application made by SCA/21306/2007 8/28 JUDGMENT the Institution to NCTE. Alternatively, it was submitted that if a representative of an Examining Body is included in inspection team nominated by NCTE before recognition is granted, the grievance of both the petitioners and the respondent-University would stand redressed and only bona-fide Institutions would come into existence who can really impart education to the student- teachers. 13. On behalf of Saurashtra University it was also submitted that the earlier Norms for applications provided a consent / No Objection Certificate obtained from the University to be attached to the application that the Institution may make to NCTE but as the said provision has been deleted, the University has no check or no means to verify the capability of the applicant to run a B.Ed. Course. Hence, if the said provision is reintroduced, it may possibly result in a smooth process of granting affiliation immediately after recognition order is issued by NCTE. 14. One more area of conflict which has come to the Notice of the Court as ventilated by the learned advocates for the petitioners as well as the respondent- Universities is the requirement of NCTE to provide staff profile while the application for recognition is being processed. It was submitted on behalf of the petitioners that the practical difficulties faced by the applicant-Institutions are being overlooked by NCTE on one hand and by the Universities on the other hand. That after submission of staff profile by an applicant-Institute it is not known as to how much period will NCTE consume before granting the final recognition order. Similarly, at times NCTE makes conditional orders, one of the conditions being appointment of staff and only on fulfillment of the said condition, issuing of final recognition order. That in SCA/21306/2007 9/28 JUDGMENT such event, even if an applicant-Institute complies with such a condition there is no certainty as to when: (i) Final recognition order will be issued by NCTE; (ii) Affiliation shall be granted and Students alloted by the University. This leads to a situation, according to the petitioners, wherein even if the staff is appointed, the Institute which has not commenced functioning is required to bear the expenses of such staff already appointed. Furthermore, considering the number of Institutes conducting B.Ed. Courses it becomes difficult, if not impossible to retain the staff so appointed in absence of any certainty as to the point of time of allotment of students. The submission was that in such circumstances, the insistence by NCTE to submit staff profile and/or appoint staff before final recognition order is issued is an idle formality and does not achieve any purpose. 15. That there is one more practical difficulty faced both by the applicant Institutions and the Universities. Normally, appointment of staff is required to be vetted by the Universities and for this purpose, the Universities have consistently provided that the selection process for the staff has to be through a selection committee wherein one of the members is a representative of the University while the remaining members are representatives of the Government and the Management. That the University would not like to undertake a selection process by nominating a representative to the selection committee unless and until the Institute concerned has been granted affiliation. Thus in effect ultimately, delay in commencement of the SCA/21306/2007 10/28 JUDGMENT educational activities in majority of the cases, beyond the date of commencement of the academic year. 16. After hearing the learned advocates for the petitioners, for the respondent- Universities and NCTE it is clear that this litigation has been generated on the one hand by NCTE issuing orders of recognition without any cut-off date resulting in the petitioners claiming affiliation and allotment of students for the current academic year; on the other hand, either due to tardy response on part of the Universities or no response by the Universities. In the circumstances, the Court has found it to be just and proper if the parties are asked to streamline their respective procedures so as to ensure that at-least in future, this unwarranted litigation is not generated. 17. NCTE is an apex body who is supposed to achieve a planned and co- ordinated development of the teacher education system throughout the country by making appropriate regulations and providing for a proper maintenance of Norms and Standards in the teacher education system as stated in the preamble to the Act. When the Bill was presented in 1992 in the Statement of Objects and Reasons it was stated that the Bill seeks to empower the Council to make qualitative improvement in the system of Teacher Education by phasing out sub- standard institutions and courses for Teacher Education. Unfortunately, NCTE has not been able to achieve the said objects for which the Act has been brought on the statute book. To the contrary, the functioning of NCTE has given rise to sub- standard institutions by permitting affiliation of institutions which do not have the requisite infrastructural facilities, which do not have requisite staff members, which do not have adequate SCA/21306/2007 11/28 JUDGMENT administrative staff back up to achieve the object of planned and co-ordinated development by establishing a suitable system of teacher education system. One instance of this situation which has come to the notice of the Court is the case of one MAHESHWAR EDUCATION TRUST - Petitioner of Special Civil Application No.18937 of 2007. One need not dwell more on this aspect of the matter as the said petition is yet to be finally heard and decided. 18. In light of the powers conferred under Section 32(2) of the Act, NCTE has framed Regulations and they have been amended from time to time. The last of the Regulations being “National Council For Teacher Education (Recognition Norms and Procedure) (Amendment) Regulations, 2006” (Regulations 2006). 19. In the case of State of U.P. and Others V/s. D.K.Singh and others AIR 1987 SC 190, the Supreme Court was called upon to decide the question whether a course of study should commence in January or July of a year. The High Court had, while repelling the stand of the authorities that every year the Post Graduate Course is commenced in January, expressed a view that it was unreasonable on part of the authorities to compel the students to wait for six months for no fault of theirs and the authorities were rigid in their view that the course should commence in January only. Reversing the decision of the High Court, the Apex Court observed: “3. Having considered the matter we think that the High Court was not justified in interfering in a matter of such an academic nature as this. The question whether a course of study should commence in January or July of a year in a post graduate medical institution is dependent on number of factors like the availability of seats, SCA/21306/2007 12/28 JUDGMENT the availability of beds in the Hospital, the availability of teachers, laboratories and equipment and perhaps a host of other factors with which we are not familar. Ordinarily, it should, therefore, be matter best left to the University. In the case of medical studies the Medical Council of India must also have a say in the matter. We find that the Medical Council of India has prescribed a teacher-student ratio of 1:1 for post graduate medical courses. To have two parallel post graduate medical courses running simultaneously will certainly disturb the teacher-student ratio. This is certainly a serious matter concerning the standard of medical education and cannot be lightly brushed aside. We also notice that admissions to post graduate courses in all medical colleges in Uttar Pradesh are made once a year only and never twice a year. We do not think that the authorities can be said to have acted arbitrarily and unreasonably in not departing from the practice which they had invariably been following. When an academic year should commence and when it should end is eminently a matter for the education authorities and not for the court. We cannot dislocate the time schedule of the university merely for the convenience of a few students. The appeal is, therefore, allowed. The judgment of the High Court is set aside and the writ petition is dismissed”. (emphasis supplied) Therefore, the settled legal position is that it is not open to the Court to dislocate the time schedule of the University merely for the convenience of a few students, and when an academic year should commence and when it should end is eminently a matter for the education authorities and not for the Court. What applies to students shall equally apply to the Institutions conducting various courses SCA/21306/2007 13/28 JUDGMENT including B.Ed. Course. The self financed institutions cannot be permitted to insist that students must be alloted regardless of the point of time when the recognition orders are issued by NCTE. In light of this established position in law it has become necessary to ensure that NCTE revises its own schedule so as to make it compatible and in consonance with the academic schedule fixed by the University. As already noted hereinbefore, the entire genesis of litigation is issuance of recognition orders made by NCTE throughout the year without having regard to the academic schedule fixed by the Universities, namely, the Examining Bodies, who directly interact with the students and are answerable to the student community at large by conducting timely examinations. A direct consequence of insisting for allotment of students after commencement of an academic term is that the student concerned is either not imparted the requisite quality of education and for requisite period; or if education is imparted the exercise takes place within such a compressed period that the student is not in a position to fully grasp the education imparted to the student. The net result being poor performance by the student at the University examinations resulting in saddling the society at large with poor / sub-standard teachers; and the University being asked to shoulder blame for poor quality of results without the underlying reasons being addressed. 20. Hence, NCTE would be well advised to ensure that in the first instance applications made to NCTE for recognition and permission to commence a new course are restricted upto a particular date in a calender year so as to give NCTE enough time to process the application well within time and pass the final order of recognition in such a manner that the Institute is in a position to commence functioning in line SCA/21306/2007 14/28 JUDGMENT with the academic schedule fixed by the examining body. In other words, the final order of recognition has to be made at a point of time leaving enough period available to the University to comply with the requisite formalities of affiliation and allotment of students so that the studies commence at the start of the academic year and in accordance with the academic schedule fixed by the University. For this purpose, NCTE shall have to make appropriate modification in its Regulations by stipulating cut-off date for receipt of applications and also stipulate an outer limit for issuance of recognition orders for a particular academic year. The term “academic year” in this context will have to be the academic year of the University concerned with whom the applicant Institute is seeking affiliation and NCTE will have to bear this in mind while fixing its own schedule for receipt of applications, processing of applications, and issuance of final order. 21. The consensus amongst the counsel for the various parties in the present proceedings is that in so far as State of Gujarat is concerned, different Universities have uniformly adopted 15th June of a calender year as the date of commencement of academic year. So the academic schedule which concludes in the month of April of the next calender year, takes within its hold the first academic term, followed by Diwali vacation, the second academic term, and the conducting of examinations. 22. In the aforesaid circumstances if NCTE provides for 31st October of a calender year as cut-off date for receipt of applications for the immediately succeeding year, it would result in an ideal situation. The next termini being 15th May of the succeeding calender year for the purpose of SCA/21306/2007 15/28 JUDGMENT issuance of final recognition order. This would give NCTE six and half months and leave four weeks from the last date of issuance of final recognition order to the date of commencement of the academic schedule, namely, 15th June, for the Universities. 23. Simultaneously, NCTE should make