IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2011 CORAM : THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.3236 of 2010 and M.P.Nos.1, 2 and 3 of 2010 M/s.Senthil Education Society, Rep. by its Secretary, No.36, Thiyaga Raja Street, Pondicherry-605 001. .. Petitioner Vs. 1.The Member Secretary, National council for Teacher Education, Wing-II, Jans Bhawan, 1, Bahadur Shah Zafar Marg., New Delhi-110 002. 2.Regional Director, National Council for Teacher Education (NCTE) Southern Regional Committee, 1st Floor, CSD Building, HMT Post, Jalahali, Bangalore-560 031. .. Respondents PRAYER : Writ petition is filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records relating to the public notice dated 28.07.2009 issued by the 1st respondent and the Order No.F.SRO/NCTE/2009-2010/16235 dated 28.10.2009 passed by the 2nd respondent and to quash the same and to direct the 2nd respondent to consider the petitioner's application dated 22.10.2009 by granting recognition for enhancement of intake for B.Ed., courses w.e.f. academic year 2010-2011 onwards. For Petitioner : M/s.P.V.S.Giridhar for Mr.P.V.S.Giridhar and Sai Associates For Respondents : M/s.K.Ramakrishna Reddy SCGSC ORDER The writ petition is filed for setting aside the public notice dated 28.07.2009 issued by the 1st respondent and the Order No.F.SRO/NCTE/2009-2010/16235 dated 28.10.2009 passed by the 2nd respondent and to direct the 2nd respondent to reconsider the petitioner's application dated 22.10.2009 to grant recognition for enhancement of intake for B.Ed. Courses with effect from academic year 2010-2011 onwards. https://hcservices.ecourts.gov.in/hcservices/ 2.The brief facts which are relevant for consideration herein are : The petitioner was, by order dated 28.11.2005 of the second respondent, accorded recognition for starting a B.Ed college with an intake of 100 students during the academic year 2005-2006 and the petitioner has after duly complying with all the norms and standards framed by National Council for Teacher Education [herein after shortly referred to as 'NCTE'] established the college and has been running the same. As any existing recognised institutions could on completion of three academic sessions of a recognised course apply for enhancement of intake, provided the institution duly satisfies all the conditions set forth by the regulations, the petitioner herein has after duly completing three years and having created required infrastructure which is larger enough to support the additional intake, submitted duly filled up application dated 22.10.2009 along with all requisite documents and receipt for payment of necessary processing fee, to the 2nd respondent seeking permission for additional intake of 100 students for the academic year 2010-2011. The 2nd respondent has by its communication dated 28.10.2009 returned the application on the ground that NCTE, New Delhi has decided not to further recognise/permit institution for conduct of teacher training course for the academic session 2010-2011 in the State of Pondicherry as policy decision vide public notice in Times of India dated 29.07.2009. As per the public notice impugned herein, the policy decision is taken with the view to achieve planned and coordinated development of teacher education system and in order to regulate growth of teacher education at all levels, the policy decision is so taken in consultation with the State Government/Union Territories and this step is being taken by NCTE as a temporary measure for regulating the growth of teacher training institutions, pending State-wise assessment of the manpower requirement of trained teachers in the country. The propriety, validity and enforceability of such policy decision and the consequential communication of the 2nd respondent are now seriously challenged in this writ petition. 3.The learned counsel for the petitioner has sought to question the propriety and validity of the impugned policy decision and the communication on more than one ground by questioning the authority of NCTE to take one such policy decision and by denying the applicability of such prohibition to an application for additional intake as made by the petitioner. It is seriously contended by the learned counsel for the petitioner that NCTE is under Section 32 of the NCTE Act only empowered to frame any rules or regulations which are not inconsistent with the provisions of the Act and the Rules made thereunder and the same shall be generally for carrying out the provisions of the Act and NCTE is not empowered to pass regulations amounting to absolute prohibition for establishing new college or a new course or for additional intake and it is for the concerned State Government or Union Territory to take one such policy decision or even the state https://hcservices.ecourts.gov.in/hcservices/ Government/Union Territory, as the case may be, are not empowered to take general policy that too on common ground without adopting individual oriented approach and without applying the acid test individually in the light of the relevant regulations laying down norms and standards and even otherwise, the Policy decision is only for prohibiting establishment of new college and not for applying for additional intake. 4.Per contra, the learned standing counsel for the respondents would seriously attempt to justify the authority of NCTE to impose one such prohibition by way of policy decision. It is further argued that the policy decision so taken cannot be the subject matter of judicial review and the policy decision is taken only to prevent mushroom growth of establishment of teacher training institutions and commercialisation of teacher education and for want of employment opportunities to all the certificate holders in future. It is further seriously contended by the learned standing counsel for the respondents that there was active exercise undertaken by the Government to go into the existing relevant factors and vital statistics are collected by the Government which would go to show that there are already more teachers available than necessary, thereby there is no likelihood of further need of such teachers arising in future. The learned counsel for the respondents has also produced the study report which is the outcome of statewide assessment made relating to demand and supply estimates of teachers and teacher educations and the withdrawal letters received from few institutions for withdrawal of recognition on the ground of want of response for the course, for perusal of this Court to duly consider and appreciate the situation which according to the respondents compelled the authority concerned to take the policy decision impugned herein. 5. I heard and considered the rival submissions made on both sides and perused the materials available on records. 6.The cause of action for filing this writ petition is the return of the petitioner's application for additional intake of 100 students on the ground that as per the policy decision taken by the respondent National Council for Teachers Education vide public notice published in Times of India dated 29.7.2009 not to accord further recognition or permission to start fresh institutions for conducting teacher training courses for the Academic Year 2010-2011 in 13 States/Union territories one among which is state of Pondicherry. 7.The short point that arises for consideration herein is as to whether NCTE has while performing its powers and functions as defined under Section 12 of NCTE Act, empowered to take policy decision to totally ban the establishment of new institutions and as to whether the ban imposed for according recognition/permission to establish new institutions amounts to ban for seeking permission for enhancement of additional intake. https://hcservices.ecourts.gov.in/hcservices/ 8.NCTE is established under the NCTE Act with a view to achieve planned and coordinated development of the teacher education system throughout the country and also to lay down norms for establishment, regulation and maintenance of the Teacher Training Institutions with a view to standardise the teacher education system all over the country and the matters connected therein. Section 3 of the Act, speaks about the establishment of the Council and the members who go to constitute the Council. Section 12 in Chapter III prescribes the functions of the Council and Sec. 12 begins to say that it is the duty of the Council to take all steps as it may think fit for ensuring planned and coordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under the Act as laid down under S.12(a) to 12(n) few among which are: The council may- (c) Co-ordinate and monitor teacher education and its development in the country; (d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions; (e) lay down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum; (f)lay down guidelines for compliance by recognised institutions, for starting new courses or training, and for providing physical and instructional facilities, staffing pattern and staff qualification; (m) take all necessary steps to prevent commercialization of teacher education. 9.Section 14 of the Act, empowers every institution offering a new course or training to make an application to the Regional Committee concerned for grant of recognition in such form and in such manner as may be determined by regulations. S.14(2) prescribes fee payable along with the application and S.14(3) lays down the mode of disposing of the application seeking recognition/permission with or without conditions. Section 15 lays down similar procedure for seeking recognition to start any institution or new course in the existing training institution. Section 15(3) prescribes the manner and the particulars based on which the conditions to be complied with. 10.S.32(i) empowers the council by notification in the Official Gazette to make regulations not inconsistent with the provisions of the Act and the rules made thereunder and generally to carry out the provisions of the Act. S.32(2)(a) to (p) lists the matters in respect of which the regulations to be made by NCTE. S.32(2)(e) to (h) lays down the manner in which the application shall be made for recognition and the conditions for the proper conduct of new institution or new course, etc. In https://hcservices.ecourts.gov.in/hcservices/ exercise of the powers vested upon the council u/s.32 regulations, norms and standards are laid down regarding the procedure in the matter of recognition and the regulations 3 to 8 shall cover all matters relating to teacher education programmes including norms and standards and procedure for recognition of institution, commencement of new programmes and addition to sanctioned intake in existing programmes and other matters incidental thereto, the categories of institutions eligible for consideration of their applications, the manner of making application and time limit, processing fees, processing of applications and conditions for grant of recognition, etc. 11.NCTE has taken a policy decision vide public notice dated 28.10.2009 not to grant further recongition/permission to start new institution with a view to achieve planned and coordinated development of teacher education system and in order to regulate the growth of teacher education at all levels. The policy decision so taken is in consultation with the State Government/Union Territories. The learned counsel for the petitioner has in the course of his argument produced detailed study material regarding demand and supply estimates of school teachers and Teacher Educators (2007-08 to 2016- 2017) along with list of tables on various matters relating to the issue, which would of-course support the contention raised on the side of the respondents that considering the total number of institutions Government and Private and unaided Private, Aided private at all levels in various places in Pondicherry region, the number of passed out, the number of intake for every year, number of unemployed teacher certificate holders and the percentage of demand and supply to various schools at all levels as per which percentage share of B.Ed course at all levels i.e., upper primary, secondary, senior secondary stage is far below 50% of enrollment and on this ground, the learned counsel for the respondents sought to justify the policy decision taken by NCTE. 12.The learned counsel for the respondents has also cited various authorities of the Supreme Court reported in (1996) 9 SCC 709 in Tata Iron & Steel Co. Ltd. v. Union of India and another, 2001 (3) SCC 635 in UGAR Sugar Works Ltd. v. Delhi Administration and others, (2003) 5 SCC 437 in Union of India and another v. International Trading Co and another, 2004 (5) SCC 232 in Union of India and another v. Manu Dev Arya, 2007 (10) SCC 684 in Indian Airlines Officers' Assn. v. Indian Airlines Ltd and others and 2009 (3) SCC 649 in State of Kerala and another v. Naveena Prabhu and others, for the legal proposition that policy, policy decision and policy matter cannot be the subject matter of judicial review. However the restraint imposed by the judicial authority to review policy decision is, in my considered view, not blanket one and the interference by the court when there is any violation of statutory or constitutional provision and when the decision so taken is arbitrary, is allowed in some of the judgments cited on the side of the respondents reported in (2008) 3 SCC 432 in Basic Education Board, U.P. v. Upendra Rai and others, 1998 (4) SCC 117 in State of Punjab and others v. Ram https://hcservices.ecourts.gov.in/hcservices/ Lubhaya Begga and others. The Supreme Court has also in the judgement reported in (1996) 3 SCC 15 in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu and others and (2000) 5 SCC 231 in Jaya Gogul Educational Trust. v. Commissioner & Secretary to Government, Higher Education Department, Thiruvanathapuram, Kerala and another, dealt with the policy decision of the government and interfered with the same. Hence, the first objection raised against the maintainability of the writ petition is negatived. 13. Regarding the authority of NCTE our High Court has on more than one occasion dealt with the powers of NCTE and our High Court in the judgements reported in 2005 (2) CTC 182 in Bharathidasan University v. Dhanalakshmi Srinivasan Educational and Charitable Trust and 2002 Writ L.R. 94 in the Government of Tamil Nadu and others v. Emmanuel Teacher Training Institute and others is pleased to uphold that the Council has exclusive jurisdiction to start and maintain any institution and in the latest judgment, it is observed that NCTE Act covers entire field of teacher education and is not restricted to area of recognition alone. However, it is further held such jurisdiction can be exercised by such manner in accordance with the regulations laid down by NCTE in exercise of powers u/s. 32 of the NCTE Act. 14. The combined reading of Section 32 and regulations particularly regulations 4 & 5 would disclose that NCTE has no authority under the guise of policy decision to impose a general ban not to accord recognition or permission for establishment of new colleges. Our High Court has in the authority reported in 2002-Writ L.R. 94 in (1) The Government of Tamil Nadu rep. By its Secretary, Department of School Education, Chennai and two others v. 1.Emmanuel Teacher Training Institute rep. By its Manager Mr.C.Rajan, Tirunelveli District and another, dealt with the validity of Regulations 5(e) and 5(f) providing for obtaining no objection certificate from the State Government/Union Territories in which the teachers training institution is located, to be enclosed with any application for recognition or permission to start teacher training institution or to increase the intake by the recognised institution, as the case may be, to be submitted to the Regional committee concerned. In the said case, some of the institutions made due applications to the State Government seeking no objection certificate for applying for either permission to start afresh teacher training institution or additional intake as the case may be and the applications are rejected on the common ground that there are thousands of unemployed teacher training degree holders and there is no possibility of such teachers being provided with job and NOC could not be given for starting fresh teacher training institution and batch of writ petitions came to be filed challenging the same. The writ petitions are dismissed in favour of the State Government and the aggrieved independent institutions preferred writ appeals and all the writ appeals involving identical issues and other cases at writ petition stage are disposed of by common order. The Division Bench of our High https://hcservices.ecourts.gov.in/hcservices/ court has, while dealing with the authority of State Government in refusing to issue NOC on common ground of policy decision, discussed in paragraphs 14 to 16 and 18 of the judgment about the limited jurisdiction of NCTE and for proper and better appreciation, the paragraphs 11, 14 to 16 & 18 of the judgment are reproduced herein: 11. ... A statement is made practically in each order that there are already 60000 unemployed trained teacher on the record of various employment exchanges and more particularly in the live list therein and, therefore, there are already more teachers available than necessary and thereby there is no likelihood of the need of such teachers arising in future. It is repeated practically in all the orders that because of the fact of the surplus number of teachers being available and in some places there are said to be 32000 teachers - there was no necessity of any teacher and for that reason the opening of the new teacher's training institutes was not necessary. In some orders, it is stated that as on 31.12.1988 there were 28500 unemployed secondary grade teachers and the results of more than 10500 trained teachers were to be published as on 31.03.1999 and the rate of intake is only 3000 to 4000 per annum. There will be unemployment problem for another thirty years in so far as these teachers are concerned. In some orders, the State Government mentioned that the child population had reduced drastically in the State to the extent of 1500000 and therefore, in future, nearly 35000 trained teachers would be rendered surplus considering the students teacher ratio fixed at 1:40." 14.On this background, it will be worthwhile to see whether such wholesale rejection by common reasons was justified. As a matter of fact, when we see the scheme of the Act, it is clear that by this Act “National Council” was established for achieving planned and coordinated development of the teacher education system throughout the country. Section 12 of the act provides for the functioning of the council while Section 14 speaks of the recognition of the institutions offering course or training in teacher education. Sec.14 provides that every institution offering or intending to offer a course or training in teacher education has to make an application individually to the Regional Committee concerned and the Regional committee has to be satisfied about such institution having adequate financial resources, accommodation, library, qualified staff, laboratory etc. It is also required to be satisfied that the institution fulfils such other conditions https://hcservices.ecourts.gov.in/hcservices/ required for proper functioning of the institution as may be determined by regulation. It is only then that the Regional Committee may pass order granting recognition...”Even a reasonable opportunity” is required to be given to the institution before rejecting the application of such institution for recognition. The order passed under Sec.14 for recognition has also been made available under Sec.18. Similarly under Sec.15 of the act, permission of the Council is requird for starting a new course or training by an institute which is already a recognised institution. The Council is required to examine even such proposals thoroughly regarding the viability of such new courses or training along with so many other factors like financial resources, available facilities etc. 15.The reading of Sec.14 and Sec.15 of the act will suggest that the matter of recognition of the institution has been treated to be on the individualistic lines and not by way of a general policy. It will be seen that every institute seeking recognition or seeking permission for starting a new course or training has to pass the acid test “individually” and indeed, there cannot be any generality regarding such matters. Every individual institute has to answer the tests laid down by the Act. 16.Under Sec.32, the Council has the power to make regulations which are not inconsistent with the provisions of the Act and the Rules made thereunder and generally for carrying out the provisions of the Act. Sub-sections (e), (f), (g) and (h) provided that the regulation shall be as regards the form and the manner in which the application for recognition is to be made, the conditions required for proper functioning of the institute and conditions for granting recognition and the form and the manner in which an application for permission is to be made under Sec. 15 as also the conditions required for proper conduct of new course or training and conditions for granting permission under Sec.15. Accordingly, regulations seem to have been framed on 3.11.1995 and Regulation 4 therein provides for the starting of new course or training while Regulation 5 provides for the manner of making the application Clauses (e) and (f) of Regulation 5 require the production of a “No Objection Certificate” from the State for starting a teacher training institute. The very look of regulations 4 and 5 would suggest that even these regulations are highly individualistic in nature in the sense that these regulations along https://hcservices.ecourts.gov.in/hcservices/ with Sections 14 and 15 have an individual-oriented approach incase of institutions in the sense that thereunder every new institute has to be specifically considered as regards its merits and demerits. Regulations 4 and 5 are after all the further fallout of Secs. 14 and 15 and, therefore, they cannot have any different shades or dimensions from those sections which are highly individualistic in character. It will be seen that Secs.14 and 15 do not spell out any policy decision. 18....It was pointed out that there has to be a proper assessment for the establishment of teacher training institutes keeping in mind the starting of the additional primary and middle schools in the distant areas, hilly areas and rural areas. It is also pointed out by the learned counsel that by the very scheme of the Act, it was obvious that though the National Council and the Regional Council were to consider the question of recognition, the State Government had also a major role to play and it is only for that reason that the regulations required the State Government to record their No Objection to start a particular institution. It is obvious that the State Government would be required to take all these factors into consideration” 15.One more ground on which the policy decision is seriously challenged by the learned counsel for the petitioner is that the policy is applied only for non-minority institution. As rightly argued by the learned counsel for the petitioner, when the reasoning for taking such a policy decision is to achieve planned and coordinated development of the teacher education system and in order to regulate the growth of teacher education at all levels and in view of mushrooming growth of teacher training educational institutions without any standard or without any basis infrastructure, there is no well laid down reasoning or logic to restrict the decision with respect to non-minority institutions that too in few States alone and this court finds serious force in the contention raised on the side of the petitioner that the policy decision vide public notice suffers from arbitrariness. In this context the observation of our High Court in para 19 of the judgment in Emmanuel Teacher Training Institute can be usefully quoted. In the said case, the Government while imposing ban for establishing new colleges by non-minority institutions, increased the seats by 50% in case of minority institutions and it was observed in para 19 as follows: "A question was asked therefore that if the State Government was increasing the seats how could it justify its stand that it would not permit opening of any new institution. It was also pointed out that in some individual cases, https://hcservices.ecourts.gov.in/hcservices/ there was a dire need for the teacher training institutions at that particular places." and the observation can be usefully quoted in the instant