In the High Court of Judicature at Madras Dated : 19..08..2006 C O R A M The Honourable Mrs. Justice Prabha Sridevan W.P. Nos.22161, 22215, 22820, 24502, 24629 & 24870 of 2006 Self Financing Private Teacher Training Institutes Association (Regd.), rep. by its Secretary S. Nicholson, No.241/5, Rohini Flats, 7th Avenue, .. Petitioners in Anna Nagar West, Chennai-101. W.P. No.22161 of 2006 Tamil Nadu Self Finance Colleges of Education Management Association (Regd.), Rep. by its Secretary S. Vijayakumar, Old No.7, New No.11, 3rd Cross Street, .. Petitioners in West C.I.T. Nagar, Chennai-35. W.P. No.22215 of 2006 Self-Financing Teacher Training Institutes Association (Regd.), rep. by its President A.K. Ramasamy, No.30, Bundar Street, .. Petitioners in Parrys, Chennai-1. W.P. No.22820 of 2006 All India Private Educational Institution Association (Regd.), rep. by its President, No.5, M.P. Avenue, Majestic Colony, .. Petitioners in Saligramam, Chennai-93. W.P. No.24502 of 2006 Tamil Nadu Private Self Financing D.T.Ed. and B.Ed. Colleges Management Association, rep. by its President Dr. A. Sheik Haneef, 178/73, Vellala Street, .. Petitioners in Ayanavaram, Chennai-23. W.P. No.24870 of 2006 All India Private Educational Institution Association (Regd. No.3822 of 2003), rep. by its President, No.5, M.P. Avenue, .. Petitioners in Majestic Colony, Saligramam, Chennai-93. W.P. No.24629 of 2006 Versus https://hcservices.ecourts.gov.in/hcservices/ 1. The State of Tamil Nadu, rep. by its Secretary to Government, School Education Department, Fort St. George, Chennai-9. 2. The Secretary to Government, Higher Education Department, Government of Tamil Nadu, Fort St. George, Chennai-9. 3. The National Council for Teacher Education, Rep. by its Member Secretary, Hans Bhavan, Wing II, New Delhi-110 002. 4. The Regional Director, National Council for Teacher Education, Southern Regional Committee, First Floor, C.S.D. Complex, H.M.T. Township, Bangalore-31. 5. The Director of Collegiate Education, Government of Tamil Nadu, D.P.I. Campus, Chennai-6. 6. The Director of Teacher Education, Research & Training, .. Respondents in W.P. Government of Tamil Nadu, Nos.22161, 22215, D.P.I. Campus, Chennai-6. 24502 & 24870 of 2006 W.P.24629/06 1. The State of Tamil Nadu, rep. by its Secretary to Government, School Education Department, Fort St. George, Chennai-9. 2. The National Council for Teacher Education, Rep. by its Member Secretary, Hans Bhavan, Wing II, New Delhi-110 002. 3. The Regional Director, National Council for Teacher Education, Southern Regional Committee, First Floor, C.S.D. Complex, H.M.T. Township, Bangalore-31. https://hcservices.ecourts.gov.in/hcservices/ 4. The Director of Collegiate Education, Government of Tamil Nadu, .. Respondents in D.P.I. Campus, Chennai-6. W.P. No.22820 of 2006 Prayer : Petitions filed under Article 226 of the Constitution of India respectively seeking - a writ of certiorari calling for the records in respect of the impugned Government Order in G.O. Ms. No.90, School Education (U1) Department dated 21.6.2006 and the consequential Government Order in G.O. (1D) No.180, School Education (U1) Department dated 3.7.2006, both issued by the 1st respondent and quash the same as illegal, unconstitutional and void insofar as the members of the petitioner are concerned; a writ of certiorari calling for the records in respect of the impugned Government Order in G.O. Ms. No.90, School Education (U1) Department dated 21.6.2006 issued by the 1st respondent and the consequential Government Order in D.O. Letter No.12271/E1/2006 dated 29.6.2006 issued by the 2nd respondent and quash the same as illegal, unconstitutional and void insofar as the members of the petitioner are concerned; a writ of certiorari calling for the records in respect of the impugned Government Order in G.O. Ms. No.90, School Education (U1) Department dated 21.6.2006 and the consequential Government Order in G.O. (1D) No.180, School Education (U1) Department dated 3.7.2006 of the 1st respondent and quash the said Government Orders as illegal, unconstitutional and void insofar as the members of the petitioner are concerned; a writ of certiorari calling for the records in respect of the impugned Government Order in G.O. Ms. No.90, School Education (U1) Department dated 21.6.2006 issued by the 1st respondent and the consequential Government Order in D.O. Letter No.12271/E1/2006 dated 29.6.2006 issued by the 2nd respondent and quash the same as illegal, unconstitutional and void insofar as the members of the petitioner are concerned; a writ of certiorari calling for the records in respect of the impugned Government Order in G.O. Ms. No.90, School Education (U1) Department dated 21.6.2006 and the consequential Government Order in G.O. (1D) No.180, School Education (U1) Department dated 3.7.2006, both issued by the 1st respondent and quash the same as illegal, unconstitutional and void insofar as the members of the petitioner are concerned. https://hcservices.ecourts.gov.in/hcservices/ a writ of certiorari calling for the records in respect of the impugned Government Order in G.O. Ms. No.90, School Education (U1) Department dated 21.6.2006 and the consequential Government Order in G.O. (1D) No.180, School Education (U1) Department dated 3.7.2006, both issued by the 1st respondent and quash the same as illegal, unconstitutional and void insofar as the members of the petitioner are concerned. For Petitioners in : Mr. N.R. Chandran, Senior Counsel W.P. No.22161 of 2006 : for Mr. R. Suresh Kumar For Petitioners in :Mr. R. Muthukumarasamy, Senior Counsel W.P. No.22215 of 2006 : for Mr. R. Suresh Kumar For Petitioners in : Mr. G. Masilamani, Senior Counsel W.P. No.22820 of 2006 : for Mr. R. Suresh Kumar For Petitioners in : Mr. P. Chandrasekar for W.P. No.24502 2006 : M/s. Chandrasekar Associates For Petitioners in W.P. No.24870 of 2006 : Mr. V. Sanjeevi For Petitioner in W.P.24629/2006 : A.K. Nirmalanandan For Respondents/ : Mr. R. Viduthalai, Advocate General State Government:for Mr.M.Sekar, Spl. Govt. Pleader (Edn.) For N.C.T.E. : Mr. S. Udayakumar, Sr. Central Govt. Standing Counsel O R D E R This is yet another tussle with regard to the demarcation of power in the field of education. 2. On 21.6.2006, the Government of Tamil Nadu issued a Government Order appointing a High Level Committee to enquire into the deficiencies in private Teacher Training Institutes and B.Ed. Colleges, and to find out if they possess the required infrastructural facilities and to file a report. The Chairman of the Committee is Thiru. K. Aludaiya Pillai, I.A.S. (Retired). The institutions which are subject of the G.O. are those institutions which have commenced functioning between the year 2001 and 2006, and the Annexure to the G.O. contains the list of all such institutions. On 29.6.2006, the second respondent addressed a letter to the fifth respondent inviting his attention to the aforesaid G.O. According to this communication, https://hcservices.ecourts.gov.in/hcservices/ the second respondent was of the opinion that it will be impossible for the Committee to visit all the B.Ed. Colleges and therefore, it was decided to constitute a Three Member Committee, splitting the list of colleges regionwise and instructing the Joint Director of Collegiate Education to inspect the colleges regarding the availability of infrastructure and to submit a report. By the communication dated 3.7.2006, the institutes were divided regionwise The scope of the enquiry was – (a) to enquire whether all the institutions possess the required infrastructure facilitites; (b) to find out whether the appointments of teachers and servants were approved or whether provisional approval was obtained; (c) to find out if there are any defects, and how the defects could be removed; (d) to make recommendations as to how permission should be granted to such institutions so that there would be room for complaints. The G.O. is extracted hereunder: "jdpahh; Mrphpah; gl;lag; gapw;rp epiya';fs; kw;Wk; ,sepiy Mrphpah; gapw;rp fy;Y}hpfs; bjhl';fg;gl;ljpy;. eilbgw;w jtWfis tprhuiz bra;tjw;fhf xU tprhuizf; FG mikj;J jtWfs; fz;Lgpof;fg;gl ntz;Lk; vd;W muR fUJfpwJ/ 2/ vdnt ,jw;fhf jpU/F/MSilagps;is. ,/m/g/.(Xa;t[) mth;fs; jiyikapy; fPH;fz;l egh;fis cWg;gpdh;fshff; bfhz;l cah;kl;l tprhuizf;FG epakpf;fg;gLfpwJ ? 1) jpU/F/MSilagps;is. ,/m/g/.(Xa;t[) jiyth; Kd;dhs; Jiznte;jh;. kJiu fhkuh$h; gy;fiyf; fHfk; 2) jpU/th/m/rpt"hdk;. cWg;gpdh; Kd;dhs; gs;spf; fy;tp ,af;Feh; 3) jpU/o/tpf;lh;. cWg;gpdh; Kd;dhs; fy;y}hpf; fy;tp ,af;Feh; 4) jpU/v!;/b$ar;re;jpu nkhfd;. cWg;gpdh; Kd;dhs; jiyikg; bghwpahsh;. bghJg;gzpj; Jiw 5) Kidth;/v!;/MWKfk; cWg;gpdh; https://hcservices.ecourts.gov.in/hcservices/ TLjy; ,af;Feh;. bjhHpy;El;gf; fy;tp ,af;ffk; 6) jpU/gp/kzp. ,iz ,af;Feh; cWg;gpdh; gs;spf; fy;tp ,af;ffk; brayh; 3/ tprhuizf;FGtpd; Ma;t[ tuk;g[fs; gpd;tUkhW ? (m) 2001?2006 Mk; Mz;L tiuapYk; Jtf;fg;gl;l jdpahh; fy;tpapay; fy;Y} hpfs; mit Jtf;fg;gLk;nghJ njrpa Mrphpah; fy;tp FGkk; tiuaiu bra;Js;sgo nghjpa fl;likg;g[ trjpfs; bfhz;oUe;jdth vd;gija[k; Kiwahd tpjpfspd; fPH; Mrphpah;-gzpahsh; epakd';fSf;fhd m';fPfhuk; tH';fg;gl;oUe;jdth vd;gija [k;. ,y;iybadpy;. ,jw;fhd epge;jidfSld; Toa chpa mDkjp bgwg;gl;ljh vd;gija[k; jw;nghJ mf;fy;Y}hpfs; nghjpa fl;likg;g[ trjpfSld; cs;sdth vd;gija[k; ghprPYj;J ,jpy; vt;thbwy;yhk; jtWfs; eilbgw;wpUf;ff; TLk; vd;gij Ma;t[ bra;J mwpf;if rkh;g;gpj;jy;/ (M) 2001?2006 Mk; Mz;L tiuapYk; Jtf;fg;gl;l jdpahh; Mrphpah; gl;lag; gapw;rp epWtd';fs; mit Jtf;fg;gLk;nghJ njrpa Mrphpah; fy;tp FGkk; tiuaiu bra;Js;sgo nghjpa fl;likg;g[ trjpfs; bfhz;oUe;jdth vd;gija[k; Kiwahd tpjpfspd; fPH; Mrphpah;-gzpahsh; epakd';fSf;fhd m';fPfhuk; tH';fg;gl;oUe;jdth vd;gija[k;. ,y;iybadpy;. ,jw;fhd epge;jidfSld; Toa chpa mDkjp bgwg;gl;ljh vd;gija[k; jw;nghJ jdpahh; Mrphpah; gl;lag; gapw;rp epWtd';fs; nghjpa fl;likg;g[ trjpfSld; cs;sdth vd;gija[k; ghprPYj;J , jpy; vt;thbwy;yhk; jtWfs; eilbgw;wpUf;ff; TLk; vd;gij Ma;t[ bra;J mwpf;if rkh;g;gpj;jy;/ (,) jdpahh; fy;tpapay; fy;Y}hpfs;-Mrphpah; gl;lag; gapw;rp epWtd';fspy; nkw;Twpa tifapy; FiwghLfs; ,Ug;gpd; mit vt;tpjk; fisag;glyhk;/ (<) ,dptUk; fhy';fspy; vt;tpj g[fhh;fSf;Fk; ,lkpd;wp vt;tpjk; jdpahh; fy;tpapay; fy;Y}hpfs; - Mrphpah; gl;lag; gapw;rp epWtd';fs; Jt';f mDkjp mspj;jy; bjhlh;ghf FG ghpe;Jiuj;jy;/ 4/ ,f;FG Kjy;epiyf; FGthFk;/ ,f;FGthdJ jkJ tprhuizia Koj;J K:d;W khj';fSf;Fs; muRf;F mwpf;if rkh;g;gpf;Fk;/ Ma;twpf;ifa[k; ghpe;Jiua[k; tpiutpy; mspf;fg;gl ntz;Lk;/ 5/ ,f;FGtpd; jiyikaplk; gs;spf; fy;tp ,af;Feh; mYtyfk;. brd;id?6 MFk;/ 6/ ,t;thiz epjpj; Jis m/rh/vz;/2214/FS/P/06 ehs; 21/06/2006d; ,irt[ld; btspaplg;gLfpwJ/" 3. The writ petitioners, who are either Associations of Self- https://hcservices.ecourts.gov.in/hcservices/ Financing Colleges of Education or Association of Self-Financing Private Teacher Training Institutes, want this G.O. to be quashed. 4. According to the petitioners, the State Government has no power to inspect the teaching institutions, much less appoint a Committee for this purpose. Interim stay was granted. The respondents expressed urgency to have the stay vacated since allegedly, there were many irregularities in these institutions which had given rise to complaints. The matter was taken up and all parties agreed that the writ petitions could be taken up for final disposal. 5. Mr. N.R. Chandran, learned senior counsel appearing for the petitioner in W.P. No.22161 of 2006 submitted that a bare reading of the G.O. would show that the respondents have pre-judged the issue and they are proceeding on the basis that irregularities have been committed in the commencement of the institutions. He submitted that there is total lack of jurisdiction on the part of the State to issue the G.O. The entire field is occupied by Entry 66 of List I of the Constitution of India. Learned senior counsel further submitted that the G.O. does not satisfy the test of reasonableness since it suffers from the vice of irrationality, illegality and proportionality. The G.O. smacks of official bias. There is unnecessary keenness to pursue a particular course of action. The present Government is under the impression that all the institutions which have commenced between the years 2001 and 2006 had the blessings of the previous Government and now, the institutions are caught in the cross-fire. The learned senior counsel submitted that actually, none of the institutions, which are members of the petitioner-Association, has been granted the No Objection Certificate by the previous Government. Learned senior counsel further submitted that teacher training education is 'higher education'. It trains teachers to teach children and therefore, it would come under the definition of 'higher education'. The learned senior counsel referred to the Tamil Nadu Private Colleges Regulation Act (hereinafter referred to as the State Act) and submitted that the recognition granted under the State Act ceases to have force after the National Council for Teacher Education Act (hereinafter referred to as the Central Act) came into force. After the Central Act has come into force, the State has not granted any recognition to any Teacher Training Institute. All the relevant provisions of the Act(s) were referred to. 6. Mr. G. Masilamani, learned senior counsel appaeirng for the petitioner in W.P. No.22820 of 2006 submitted that the field is fully occupied, and if the State cannot legislate touching upon the subject, the State does not have executive power either, since executive power is co-extensive with the legislative power. It was further submitted that the role of the State with regard to the institutions in question arises only at the pre-grant-of-approval stage when the institutions are required to obtain a NOC, and at the post-grant-of-approval stage, the State becomes functus officio. The https://hcservices.ecourts.gov.in/hcservices/ threshold is crossed after the approval is granted and the State's role comes to an end. It is not open to the State thereafter to enquire whether the approval has been granted by the NCTE in accordance with the Act, the Rules and the Regulations. The State most certainly cannot embark on a roving enquiry into the working of the NCTE to find out what errors might have occurred in the grant of permission. When the institutions make an application for NOC, copies of all the documents that are forwarded to the NCTE for grant of approval are also sent to the State and so, the files should be with the State and they can very will look into their records to see whether the institutions had the necessary infrastructure facility No State can act on suspicion. The learned senior counsel further submitted that the legislative powers of the Centre and the State are clearly demarcated. The G.O. is violative of Articles 245 and 246 of the Constitution of India. It lacks the authority of law and breaches the Federal structure. 7. Mr. R. Muthukumarasamy, learned senior counsel appearing for the petitioner in W.P. No.22215 of 2006 referred to Article 162 of the Constitution and submitted that the main limb of the said Article relates to List I, while the proviso thereto relates to List III The State has been denuded of its power, both legislative and executive, in view of Entry 66 of List I and Entry 25 of List III. The field is totally occupied, leaving no room for the executive to pass any order. Even if it is taken for granted that the State has the power to fix eligibility critteria which are not in derogation of the standards of education, the State definitely cannot assess the infrastructural facility, which is an intrinsic component of standards of education and therefore, covered by Entry 66. 8. The learned Advocate General submitted that the G.O. is an aspect of legislative power. The power of inspection in the State Act and the Central Act is different. To say that the State cannot inspect and cannot make any enactment in respect of teaching insitutions or issue executive orders is to totally deprive the State of all its powers under Entry 25. The learned Advocate General referred to NCTE Regulation 6 and submitted that the State's power is traced to this Regulation and that the State cannot issue an order cancelling or revoking the NOC unless it is given the power of inspection and therefore, the power of inspection is incidental and ancillary. The learned Advocate General also submitted that the fact that all these institutions have commenced between 2001 and 2006 would show that there is a mushrooming of institutions without any regulation. The learned Advocate General further submitted that if there is uncontrolled increase in the number of teachers that pass out of these institutions, then the State will not be able to provide employment to all of them. 9. The learned counsel appearing for the NCTE submitted that all https://hcservices.ecourts.gov.in/hcservices/ that the State can do is bring the complaints, if any, to the notice of the NCTE and the NCTE will take action, since it is this Council which is supreme as regards the maintenance of standards in Teacher Training Insitutes and B.Ed. Colleges. 10. The petitioners objected to the word 'mushrooming' used by the learned Advocate General. According to the petitioners, the National Educational Policy is to have a teacher for every 300 children and the need for teachers can never ceases to exist, especially since the right to primary education has been given the status of a Fundamental Right. By the judgment in St. John's Teachers Training Institute vs. Regional Director, National Council for Teacher Education [(2003) 3 S.C.C. 321], all the Teacher Training Institutes were closed and it is only after the NCTE Act came into force that Teacher Training Insitutes came into existence once more, and when the State caused delay in granting NOC to such institutions, the Supreme Court said that if the matter was to stagnate, then the NOC is deemed to have been granted. The fact that so many institutions came up between 2001 and 2006 is because no institution came into existence for a considerable period of time and once the NCTE started granting approval, the accumulated stagnation manifested itself. It was submitted that the constitutional purport of education must be understood and that right to education is a right to life. According to the petitioners, the fact that the State is not able to provide employment is not relevant insofar as the right to education is concerned. It was submitted that the mindset of the State must change. The graduates from these institutions could very well seek their appointment elsewhere or they could even give private tuition and earn their living. On the ground of inability to provide employment and without statistics to support their case, the State cannot initiate any action,much less can the State encroach upon a field which is fully occupied by the Central enactment. According to them, the provisions of the State Act cannot be invoked since these institutions have come out of the purview of the said Act. Further, the issue of mala fides has not been denied by the respondents. The G.O. does not satisfy the test of Wednesbury principle of reasonableness. 11. The relevant clauses of the National Council for Teacher Education Act, 1993 are extracted hereunder : "2(e) "Institution" means an institution which offers courses or training in teacher education." (i) "Recognised institution" means an institution recognised by the Council under Section 14." (l) "Teacher education" means programmes of education, research or training of persons for equippnig them to teach at pre-primary, primary, secondary and senior secondary stages in schools, and includes non-formal education, part- time education, adult education and correspondence education." https://hcservices.ecourts.gov.in/hcservices/ "13. Inspection. - (1) For the purposes of ascertaining whether the recognised institutions are functioning in accordance with the provisions of this Act, the Council may cause inspection of any such institution, to be made by such persons as it may direct, and in such manner as may be prescribed. (2) The Council shall communicate to the institution the date on which inspection under sub-section (1) is to be made and the institution shall be entitled to be associated with the inspection in such manner as may be prescribed. (3) The Council shall communicate to the said institution, its views in regard to the results of any such inspection and may, after ascertaining the opinion of that institution, recommend to that institution the action to be taken as a result of such inspection. (4) All communications to the institution under this section shall be made to the executive authority thereof, and the executive authority of the institution shall report to the Council the action, if any, which is proposed to be taken for the purposes of implementing any such recommendation as is referred to in sub-section (3)." "17. Contravention of provisions of the Act and consequences thereof. - (1) Where the Regional Committee is, on its own motion or on any representation received from any person, satisfied that a recognised institution has contravened any of the provisions of this Act, or the rules, regulations, orders made or issued thereunder, or any condition subject to which recognition under sub-section (3) of section 14 or permission under sub-section (3) of section 15 was granted, it may withdraw recognition of such recognised institution, for reasons to be recorded in writing : Provided that no such order against the recognised institution shall be passed unless a reasonable opportunity of making representation against the proposed order has been given to such recognised institution : Provided further that the order withdrawing or refusing recognition passed by the Regional Committee shall come into force only with effect from the end of the academic session next following the date of communication of such order." 12. Regulation 6 of the NCTE Regulations reads as hereunder : Regulation 6 https://hcservices.ecourts.gov.in/hcservices/ Requirement of No Objection Certificate from the State Government/U.T. Administration (i) Application from every institution seeking recognition to start a course or training in teacher education or from an existing institution seeking permission to start a new course or taining and/or increase in intake shall be accompanied by a No Objection Certificate (NOC) from the State or Union Territory in which the institution is located. (ii) The endorsement of the State Government/UT Administration in regard to issue of No Objection Certificate (NOC) will be considered by the Regional Committee while taking a decision on the application for recognition. (iii) If the NOC issued by the State Government/UT Administration does not indicate the intake, it will be for the Regional Committee to determine the intake taking into account the infrastructural and instructional facilities available in the institution and other relevant provisions in the Norms and Standards applicable to the relevant teacher training programme. (iv) The NOC issued by the State Government/UT Administration will remain valid till such time the State Government/UT Administration wigthdraws/cancels it. (v) The NOC will be deemed to have lapsed if the institution fails to get recognition within three years from the date of its issue. (vi) Requirement of NOC shall not apply to Government Institutions. (vii) Requirement for NOC shall not apply to University Department for taking up innovative teacher education programme for a maximum intake of 50 (fifty only). The question as to whether a programme is innovative will be decided by the concerned Regional Committee. 13. The latest judgment of the Supreme Court in J.T. 2006 (4) S.C. 201 [State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya] answers almost all the questions raised in the present case. In that case, the State of Maharashtra took a policy decision not to grant NOC to any institution for starting new B.Ed. College for the Academic Year 2005-06. A Public Trust, which desired to impart education for B.Ed. Course, applied to the NCTE. The NCTE approved it and granted recognition for the academic Year 2005-06. The institution applied to the State for grant of permission to include its name in the Central Admission Process. There was no reply Therefore, a writ petition was filed and in the affidavit filed by the State Authorities, it was contended : https://hcservices.ecourts.gov.in/hcservices/ "It was only the State Government which could correctly assess and know the extent of requirement of trained manpower and supply of trained teachers keeping in view the requirements, change of occupation and demand of such teachers. The input from the State Government through NOC was thus vital for enabling NCTE to exercise its powers and discharge its functions properly and without involvement of the State Government and availability of necessary input by the State Government, NCTE could not grant permission. ..... " In that case, on behalf of the NCTE, it was submitted before the Supreme Court that the role played by the State Government is only consultative in nature and once the State is consulted, its function comes to an end. The Supreme Court relied upon J.T. 1995 (3) S.C. 136 [State of Tamil Nadu vs. Adhiyaman Educational & Research Institute] and observed as follows : "We may, however, state that NCTE and contesting respondents are right in relying upon a decision of this Court in Adhiyaman, referred to earlier. In Adhiyaman, this Court was called upon to consider the constitutional validity of some of the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and the Rules made thereunder as also the Madras University Act, 1923 and the Rules made thereunder. It was contended that certain provisions of the State Acts were inconsistent with the provisions of the Central Act (All India Council for Technical Education Act, 1987) and hence were inoperative. This Court upheld the contention of the petitioners and ruled that State Legislature could not enforce an Act if it is inconsistent with the Central Act and to the extent of such inconsistency, the Central Act would operate and State Acts would