HON’BLE SRI JUSTICE GODA RAGHURAM W.P.Nos. 24873 and 27031 of 2007 DATE: 07.02.2008 W.P.No.24873 of 2007 Between: Mula Kavitha … Petitioner And The Convenor, Ed-CET-2007, Ground Floor, Visakhapatnam and 4 others. … Respondents W.P.No.27031 of 2007 Between: Ginne Sailaja … Petitioners And The Convenor, Ed.CET-2007, Visakhapatnam. … Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM Writ Petition Nos.24873 and 27031 of 2007 COMMON ORAL ORDER: Heard Sri Konareddi Anji Reddy and Sri Kumar Babu, learned counsel for the petitioners, respectively, Sri Sudesh Anand, learned counsel for the Convener, Ed.CET 2007 and the learned Government Pleader for School Education. Petitioners are the candidates who appeared Ed.CET 2007 and obtained less than 50%, but more than 45% marks at the said entrance examination and are desirous of pursuing courses of B.Ed in the State of Andhra Pradesh. The Ed.CET-2007 common entrance test, pursuant to the notification dated 30.03.2007 was held on 05.05.2007. As per the information brochure furnished to the candidates, the eligibility for appearing at the entrance test is 45% aggregate marks in the qualifying examination. For SC/ST candidates, a mere pass in the qualifying examination is sufficient. None of the petitioners belong to SC or ST category and were thus required (as per the initial notification and instructions) to possess 45% aggregate marks in the qualifying examination. Petitioners did possess this percentage of marks and considering themselves qualified to appear at the entrance examination (in accordance with the instructions issued along with the notification), prepared for the examination, appeared at the test and obtained ranks thereat. On 10.04.2007, the Convener, Ed.CET 2007 issued a corrigendum to the Ed.CET notification issued on 30.03.2007. According to this intimation, as per the revised National Council for Teacher Education (NCTE) norms and standards, candidates with at least 50% marks in Bachelor’s Decree or Master’s Degree are alone eligible for admission into the B.Ed programme, except candidates belonging to SC/ST. The corrigendum further intimated that this rule is applicable to candidates who had already submitted applications to the Convener, Ed.CET 2007, in response to the notification dated 30.03.2007. At the hearing today, Sri Sudesh Anand, the learned counsel for the Convener, Ed.CET 2007 has placed for perusal of this Court a notification dated 21.07.2006 issued by NCTE and published in the Gazette of India Extra-Ordinary Part III (4), being the National Council for Teacher Education (Recognition, Norms and Procedure) (Amendment) Regulations 2006 (for short “the Regulations 2006”). Regulation 2(2) of these Regulations stipulates that these would come into force from the date of their publication in the official gazette. Neither expressly, by any compelling implication from the text of the Regulations 2006 nor from the grant of power under the provisions of the National Council for Teacher Education Act, 1993 (the 1993 Act), is vouchsafed to the NCTE a power to make retroactive regulations. The norms qua the Regulations 2006 enumerate (in paragraph 3.2.1 of the Norms and Standards for Secondary Teacher Education Programme leading to Bachelor of Education Degree) that candidates with at least 50% marks either in the Bachelor’s Degree and/or in the Master’s Degree or any other qualification equivalent thereto, are eligible for admission to the programme, except in case of SC/ST/OBC communities and other categories as per the rules of the Central/State Government/UT Administration concerned, for whom relaxation shall be as per the State Rules. The corrigendum issued by the Convener, Ed.CET, dated 10.04.2007 is thus in conformity with the Regulations 2006, is the contention of Sri Sudesh Anand. The corrigendum has also been published in four newspapers on 12.04.2007, much earlier to the date of the entrance examination, which was held on 10.06.2007. All the candidates who had applied pursuant to the notification dated 30.03.2007 were thus duly notified of the requirement of 50% marks in the qualifying examination, as the condition of minimum eligibility to appear at the Ed.CET 2007. The petitioners herein were nonetheless permitted to appear at the Ed.CET 2007, despite not having 50% marks in the qualifying examination. Apparently, there was no serious scrutiny of their applications. It would appear that the available B.Ed seats in the State are in excess of the demand for them, at any rate in certain disciplines. The petitioners therefore expect to obtain a B.Ed seat in some college or the other. They were denied allotment and consequent admission, by the Convener, Ed.CET on the ground that they do not possess the minimum eligibility as per the Regulations 2006. The petitioners are thus before this Court seeking appropriate relief, inter alia, a direction to the respondents not to insist on 50% marks in the qualifying examination, instead be rest content with 45%, as per the terms of the initial notification dated 30.03.2007. In W.P.No.24873 of 2007, by way of W.P.M.P.No.35642 of 2007, there is an additional relief sought. The petitioner seeks extension of the benefits qua G.O.Rt.No.1066 dated 10.12.2007 to all the methodologies in B.Ed. Petitioner is desirous of admission into the Social Studies methodology. Petitioner contends that G.O.Rt.No.1066, an executive exercise by the State of A.P., is arbitrary and violates the equality injunctions mandated by Article 14 of the Constitution. By the order in G.O.Rt.No.1066 dated 10.12.2007 (in purported exercise of executive power available under Article 162 of the Constitution), the State Government reduced the minimum marks required in the B.Ed qualifying examination to 40% for admission to Mathematics and Physical Sciences methodologies alone, for the year 2007-08 in purported relaxation of Rule 4(3) of the Rules issued in G.O.Ms.No.92 Education Department, dated 16.11.2006. It further directed that after affording opportunity to all Ed.CET candidates, the remnant vacant seats be thrown open for admission to candidates seeking admission into Mathematics and Physical Sciences methodologies, i.e., even to those who had not even appeared for the Ed.CET, 2007 and who obtained 40% of the aggregate marks in the qualifying degree examination, for the year 2007-08. In paragraph 4 of this order, a communication from the Secretary, A.P. State Council for Higher Education (APSCHC) dated 01.12.2007 is referred to, whereby the Secretary, APSCHC is reported to have informed the State about fourteen thousand seats remaining vacant at the end of second phase of B.Ed counselling of which 6800 seats pertain to Mathematics methodology and 2000 seats to the Physical Sciences methodology. It would appear that the Secretary, APSCHC, Hyderabad, also recommended to the State that the eligibility criteria for admission to the vacant seats in any methodology be reduced to a minimum pass in the qualifying examination both as regards seats to be allotted by the Convener as well as in management quota, besides proposing appropriate amendments to the rules issued by the State Government for admission into B.Ed course (in G.O.Ms.No.92 Education Department, dated 16.11.2006). In purported exercise of powers conferred under Sections 3 and 7 of the Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act,1983, the State, in G.O.Ms.NO.92 dated 16.11.2006, issued Statutory Rules known as the Andhra Pradesh Colleges of Education (Regulation of admission into B.Ed courses through common entrance test) Rules, 2006. These statutory rules neither grant nor enable any power to the State to relax the provisions of the statutory rules. In the absence of any power under the provisions of the Rules issued in G.O.Ms.No.92, it is not clear under what authority the State assumed a power to overreach the trajectory of the statutory rules, to issue an executive fiat relaxing the rules. It would be a singularly ill informed executive authority if unaware of the long settled and well established principle that exercise of executive power cannot run counter to nor overreach the Statutory Rules. Ignorance of law by the State appears the exclusive foundation for issuing the order in G.O.Rt.No.1066. There is another aspect. The NCTE, an expert federal body constituted under the provisions of the 1993 Act has issued a statutory notification (the Regulations 2006) mandating the standards of eligibility for the entrance examination for admission to the B.Ed course, in exercise of powers conferred by the federal raft of powers qua the 1993 Act. It is axiomatic that the powers of the State including legislative powers (if there be any concurrent) would stand eclipsed on account of such paramount exercise by the federal exercise of power and by the prescription of norms by the Federal Agency. This is an equally established constitutional discipline. Notwithstanding the provisions of the 1993 Act, and the Regulations 2006 issued by the NCTE, in compliance of which the APSCHE through its Convener, Ed.CET 2007 had issued the Corrigendum (on 10.04.2007), the Secretary, APSCHE had strangely recommended to the State for issuing orders for dilution of standards of education at the entrance level. The inference is inviting that the State and the APSCHE are ignorant of the primacy of the NCTE and of the provisions of the 1993 Act and of the corollary subordination of the State to federal mandates norms. These State agencies and State actors failed to recognize their incompetence to issue orders or Regulations which overreach or smother the Regulations 2006 issued by NCTE. The executive order issued in G.O.Rt.No.1066 has the clear impact of subverting the standards of teacher education as stipulated and mandated by the Regulations 2006. The order in G.O.Rt.No.1066 is therefore ab initio incompetent and cannot be recognized by this Court nor any relief could be granted to the petitioners on the basis of such incompetent order. The Amendment Regulations 2006 issued by the NCTE constitute the exclusive and dominant exercise of Regulatory power by the federal agency (NCTE) under a federal grant of power qua a federal legislation (the 1993 Act). State power, in particular the executive power of the State is ever subordinate and complementary to the federal exercise of power in these circumstances. The learned counsel for the respondents including the learned Government Pleader do not suggest any legal foundation for G.O.Rt.No.1066. On the aforesaid analysis, the orders in G.O.Rt.No.1066 cannot be recognized in law. This is a clearly vacuous exercise of non- existent power by an incompetent authority besides being subversive of the operative federal regime, the Regulations 2006. G.O.Rt.No.1066 is inoperable for the further reason that no executive power is preserved to issue relaxations to the statutory rules issued in G.O.Ms.No.92 dated 16.11.2006. G.O.Rt.No.1066 is, therefore, a still- born instrument. The Convener, Ed.CET 2007 ought not to act in accordance with the orders in G.O.Rt.No.1066 and in derogation of the obligation to act in conformity with the Regulations, 2006. The operative legal regime is qua the Regulations 2006. It is these standards and criteria for admission to B.Ed as contained therein that operate to control the power and discretion of the State as well as the Convener, Ed.CET 2007. The Regulations 2006 circumscribe and direct the conduct and restrict the executive power of the Government of Andhra Pradesh, as also the APSCHE and the several Colleges of Education in the State of Andhra Pradesh. One Dr.C.B.S.Venkataramana, the Principal Secretary to the Government, School Education Department, has filed a counter- affidavit on behalf of the State. The reasons vouchsafed in this counter-affidavit in justification of the orders issued in G.O.Rt.No.1066 read as under: “The admissions into B.Ed course are being made on the basis of Ed.CET ranking as per State Government rules, issued in compliance with the judgment of the Hon’ble Supreme Court of India in the “inamder case”. At present, seats in B.Ed courses in each college in the State are filled up in various methodologies as per G.O.Ms.No.26, School Edn.(Trg.A1) Dept.Dt.03.02.2007 as shown below. Mathematics : 30% Physical Sciences : 15% Biological Sciences : 25% Social Studies : 30% NCTE had fixed a norm of 50% minimum marks in qualifying examination required for admission into B.Ed course. The Ed.CET for the year 2007-2008 was conducted in June 2007, counseling was conducted starting from November 2007 and at the end of 2nd phase of counseling it was found that a large number of seats were left over in Mathematics (6800 out of total of 16800 seats) ad Physical Sciences (3000 out of total 8400 seats) methodology. In view of the above, the A.P.State Council of Higher Education, B.Ed Admissions Committee (Single Window-I) discussed the issue in a meeting specially conducted for this purpose and the matter was thoroughly discussed in its entirety. It was felt that the phenomenon of Mathematics and Science methodology seats in B.Ed course remaining vacant could be ascribed to the following reasons. a) In general students of Mathematics and Physical Sciences are proportionately smaller in number than other courses in any college or university at degree level. b) These proportionately less number of Mathematics and Physical Science students also have many attractive alternative professional careers to choose after completion of degree, including (i) Computer applications; ii) Pharmacy; iii) Medical Technology and iv) Bio-Technology courses etc. Thus even among those proportionately smaller number of Mathematics and Physical Sciences students, a good number (who have good marks) most likely go for other professional courses. c) In the current society’s younger generation career preferences, Education as a profession is getting a low priority, when other alternatives are available. In the light of the above factors, it was felt that if adequate number of Mathematics and physical sciences graduate students are not attracted to education as a profession, there could be severe shortages of qualified teachers in these subjects in future, which exists even now. In view of the above, the Secretary, APSCHE, sent a proposal to the Government (sic-to) change the minimum % (percentage) of marks in qualifying examination for the Mathematics and Physical Sciences methodologies from 50% to pass grade as the required qualification for admission into B.Ed course for the year 2007-08. Government after careful examination of the matter, sent a proposal to NCTE to permit reduction of qualifying exam marks in these two methodologies from 50% to 40%. The Principal Secretary, School Education Department had personally met the Vice-Chairman of the NCTE in this regard, who appreciated the matter and agreed with the need to reduce the norm of qualifying exam marks in these two subjects; and assured that a decision would be communicated to the State Government in this regard soon. Keeping in view of the urgency of the matter to complete admissions and commence classes which are already badly delayed and in anticipation of receipt of approval from the NCTE, Government after careful examination, issued orders reducing the qualifying exam marks for Mathematics and Physical Science methodologies from 50% to 40%. In reply to para 2 of the petitioner’s affidavit, it is respectively submitted that NCTE had fixed a minimum of 50% marks in the qualifying examination for admission into B.Ed course. Accordingly Government vide G.O.Ms.NO.92 (Edn.Trg) Dt.16.11.2006 amended the eligibility criteria and fixed 50% as the minimum marks required in qualifying examination for admission into B.Ed for the year 2007-2008. There were a total of 549 B.Ed colleges in which admissions were made through counselling which was conducted starting from November, 2007. The total number of seats in these 549 number of colleges, for admission for 2007-2008 were 56000 of which as per Government Orders, 16800 seats (30%) were reserved for Mathematics methodology, 8400 (15%) for Physical Sciences, 1400 (25%) for Biological Sciences, and 16800 (30%) for Social Studies. It may be stated in this regard that Government fixed these methodology wise earmarking of seats in order to ensure that qualified teachers are available in the State School Education sector, for both Government schools and private schools, particularly at the High School level which is critical. In reply to para 3 of the affidavit, it is respectfully submitted that the Secretary, APSCHE Hyderabad had submitted a report furnishing the number of vacant seats in various methodologies at the end of 2nd phase of counseling for admission into B.Ed. for the year 2007- 2008. The information as furnished by the Secretary, APSCHE, Hyderabad is given below. Sl.No. Methodology Total No.of Seats available No.of seats left over at the end of 2nd phase of counseling Number of eligible candidates left over 1 MATHEMATICS 16800 6800 ZERO 2 PHYSICAL SCIENCE 8400 3000 ZERO 3 BIOLOGICAL SCIENCE 14000 2804 7500 4 SOCIAL STUDIES 16800 1574 27500 In reply to para 4 of the affidavit, it is respectfully submitted that it is a fact that the Secretary, APSCHE proposed that the eligibility criteria for admission into B.Ed may be changed to mere pass in qualifying examination. Keeping in view of the large number of seats left over in Mathematics and Physical Sciences methodology for the year 2007-2008 and to avoid a situation wherein the large number of teachers posts in Mathematics and Physical Sciences methodology in Government and private High Schools might be vacant for want of qualified teachers in these subjects in future, Government after careful examination of the proposal of Secretary, APSCHE, Hyderabad and in view of the prevailing situation wherein most of the Mathematics and Physical Sciences Graduates are preferring in join and take up jobs in Engineering, Computer, IT and Pharmacy fields, reduced the minimum marks in qualifying examination required for admission into B.Ed course from 50% to 40% in respect of Mathematics and Physical Sciences Methodology. As the number of seats left over in Biological Sciences and Social Studies methodologies were much smaller, and number of candidates eligible and awaiting admission in these methodologies were many times more than the number of seats vacant, the decision was not extended to social studies methodology. It is a fact that the NCTE is the competent authority to fix the eligibility criteria for admission into B.Ed. Before reducing the minimum marks in qualifying examination required for admission into B.Ed in respect of Mathematics and Social Studies methodologies the Principal Secretary (SE) had discussed with the NCTE authorities and orders reducing the minimum marks in the qualifying examinations for admission into B.Ed course in Mathematics and Physical Sciences methodologies were issued vide G.O.Rt.No.1066 dt.10.12.2007.” From the averments in the counter-affidavit extracted above, it appears that the State believes that the ends justify the means and absence of power is no constraint to the exercise of it. It is rather unfortunate that a large number of students desirous of admission into B.Ed programmes are misled by such incompetent and extravagant exercise of non-existent power even by responsible authorities in the higher echelons of the State executive. The State has issued an executive order in violation of a binding Federal Regulation, in anticipation of an amendment to a Federal Regulation (the Regulations 2006) by a federal agency (the NCTE) which has no retrospective Regulation issuance power under the provisions of the 1993 Act ! In the several paragraphs in the counter-affidavit, the Principal Secretary to the School Education does not assert any legal foundation underlying G.O.Rt.No.1066 or by what authority the State could dilute the standards of teacher education admissions in the context of the standards having already been mandated by the Regulations, 2006. In view of the analysis in the preceding paragraphs and in the absence of any legal justification offered in the counter-affidavit of the State, this Court holds that the orders in G.O.Rt.No.1066 are still-born and inoperative ab initio. Sri Sudesh Anand placed before this Court another gazette notification dated 27.11.2007 issued by NCTE, published in the Gazette of India, Extraordinary (Part III Sec.4), called the National Council for Teacher Education (Recognition Norms & Procedure) Regulation 2007, (the Regulations 2007). Regulation 1(2) of the Regulations 2007 stipulate that these come into force with effect from the date of their publication in the Official Gazette. As per paragraph 3.2.1 of the Norms and Standards for Secondary Teacher Education appended to the Regulations 2007, candidates with 45% marks either in the Bachelor’s Degree and/or in the Master’s degree or any other qualification equivalent thereto, are eligible for admission to the B.Ed. Programme. Since it is nobody’s case that the NCTE has retroactive regulation making power; in the light of the specific position obtaining from Regulation 1(2) that the Regulations 2007 come into force from the date of their publication in the Official Gazette; and since the Gazette notification is dated 27.11.2007, the conclusion is irresistible that the Regulations 2007 have mere prospective operation. They cannot apply to the admissions to the B.Ed., courses in the State which have already concluded before effectuation of the 2007 Regulations. The Regulations 2007 cannot retrospectively impact the Ed.CET 2007, which necessarily had to be conducted and consequent admissions made in accordance with the Regulations 2006. Even from the counter affidavit of the fourth respondent in W.P.No.24873 of 2007, extracted supra, no legal basis is discernable in issuance of the executive order in G.O.Rt.No.1066. For the reasons afore stated, the executive order of the State in G.O.Rt.No.1066 dated 10-12-2007 is patently incompetent and unauthorized exercise of executive power and cannot be recognized in law being inoperative. For the aforesaid reasons, this Court discerns no infirmity in the prescription of 50% eligibility marks in the relevant qualifying Ed.CET 2007 entrance examinations for B.Ed courses for admission into B.Ed except in respect of the candidates belonging to the SC/ST. There are no merits in the writ petitions and the writ petitions are accordingly dismissed. There shall be no order as to costs. ------------------------------ GODA RAGHURAM, J Date: 07.02.2008 SH/KLP