IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.10.2007 C O R A M : THE HONOURABLE MR.A.P.SHAH, THE CHIEF JUSTICE THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR.JUSTICE P. JYOTHIMANI W.P.No.28304 OF 2007 and M.P.Nos.1 to 3 of 2007 Rukmani College of Education, run by Rukmani Educational and Charitable Trust, No.208, National Highway, Mangalapuram Post, Kadayanallur–627 751, Tirunelveli District, rep.by its Correspondent S.Deepak. ... Petitioner -vs- 1. The State of Tamil Nadu, rep.by its Secretary, Higher Education Department, Fort St.George, Chennai-600 009. 2. The Registrar, Manonmaniam Sundaranar University, Abishekapuram, Tirunelveli District. 3. The Controller of Examinations, Manonmaniam Sundaranar University, Abishekapuram, Tirunelveli District. ... Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records from the second respondent in No.MSU/CD/FA/B.Ed./2007, dated 08.8.2007, quash the same as far as it relates to the granting of affiliation from the Academic Year 2007-2008 onwards and further direct the 2nd respondent to grant affiliation to one Year B.Ed.Course run by the petitioner from the Academic Year 2006-2007 onwards and pass any other further or other orders. For petitioner :: Mr.P.Jayaraman, S.C. For Mr.B.Rabu Manohar https://hcservices.ecourts.gov.in/hcservices/ For respondents :: Mr.G.Sankaran, Spl.G.P.(Edn) for R1 Mr.V.Govardhanan for M/s.Row & Reddy for RR2 and 3 & also for Bharathidasan University Mr.M.Sekar for Thiruvalluvar University, Bharathiar University and Periyar University Mr.Kandavadivel Doraisamy for Madras University Mr.N.R.Chandran, SC and Mr.R.Muthukumarasamy, SC for M/s.R.Suresh Kumar and P.D.Audikesavalu (Intervenor) Mr.S.Sethuraman for Madurai Kamaraj University Mr.P.R.Gopinathan, Standing counsel for NCTE, Bangalore. *** O R D E R (ORDER OF THE COURT WAS MADE BY THE HONOURABLE THE CHIEF JUSTICE) This case has been referred to the Full Bench as the Division Bench found that there is divergence of opinion and, particularly, the ratio of the Division Bench decision in The University of Madras vs Loordhu Ammal Educational Trust and another, 2005 W.L.R 395 cannot be reconciled with the decision of the other Division Bench in Vinayaka Missions College of Nursing and Para-Medical Sciences v. The Tamil Nadu Nurses and Midwives Council, 2006 (4) CTC 162. 2. The challenge in the present petition is to the order of the second respondent Manonmaniam Sundaranar University, dated 08.8.2007, by which the University has granted provisional affiliation to Rukmani College of Education started by the petitioner Trust for running B.Ed. Course with an intake of 100 students for the academic year 2007-2008. The petitioner has questioned the order of the second respondent University on the ground that the petitioner is entitled for grant of affiliation for B.Ed. Course from the academic year 2006-2007. The claim is made on the basis that the National Council for Teacher Education (hereinafter will be referred to as 'the NCTE', for brevity's sake), which is the competent authority to grant permission to start educational colleges, has granted permission vide order dated 06.10.2006 to run the B.Ed Course for the academic year 2006-2007. The petitioner Trust made an application for affiliation to the second respondent University on 31.10.2006, enclosing the approval order granted by the NCTE. Anticipating the grant of affiliation the petitioner admitted students for the academic year 2006-07. As per the statutes of the second respondent University relating to affiliation and approval of colleges and autonomous colleges, the https://hcservices.ecourts.gov.in/hcservices/ procedure for granting affiliation is explained in Statute 21, which inter-alia reads as follows:- ''21. A College applying for affiliation or approval shall send a formal letter of application to the Registrar between the 1st July and 31st October proceeding the academic Year in which the courses are proposed to be started and shall give full information in the letter of application on the following matters: a to j. .......... ". Statute 30 makes it clear that the affiliation or approval shall not be retrospective in the following terms:- ''30. Affiliation or approval shall in no case be granted with retrospective effect. Attendance at courses of instruction provided in colleges or in subjects before affiliation or approval is granted shall not qualify for the grant of certificates of attendance, and such attendance shall not entitled any candidate to exemption from the production of certificates of attendance." By virtue of the aforesaid Statutes, since the petitioner Trust has applied for affiliation on 31.10.2006, it is entitled for grant of affiliation from the academic year 2007-2008 and, also due to the fact that the students admitted to the institution would not be in a position to complete the requisite number of term days, the second respondent granted provisional affiliation only from the academic year 2007-2008. 3. According to the petitioner, under the National Council for Teacher Education Act, 1993 (73 of 1993) (hereinafter, for brevity's sake, will be referred to as the 'NCTE Act'), the authority contemplated therein viz., NCTE has granted its approval for the academic year 2006-2007 in its order, dated 06.10.2006 and, therefore, the University was bound to grant affiliation for the same academic year and further according to the petitioner, once the NCTE has granted approval, the grant of affiliation by the University is only a formality and the University ought to have granted affiliation from the year 2006-2007. In support of these submissions, reliance has been placed on the decision of the Division Bench in Vinayaka Mission's College of Nursing and Para- Medical Sciences -vs- The Tamil Nadu Nurses and Midwives Council (supra), wherein, while referring to the provisions of the Indian Nursing Council Act, 1947, relating to affiliation of B.Sc., Nursing Course by the affiliating University, the Bench has taken a view that when once the Indian Nursing Council and the Tamil Nadu Nursing and Midwives Council had granted recognition for B.Sc., Nursing Course for the academic years 2002-2003, 2003-2004 and 2004-2005, it was the duty of the University to consider and grant affiliation for the academic years 2002-2003 and 2003-2004 and accordingly made directions. On the other hand, on behalf of the https://hcservices.ecourts.gov.in/hcservices/ second respondent University reliance has been placed upon a decision in The University of Madras -vs- Loordhu Ammal Educational Trust (supra), where another Division Bench of this Court while dealing with similar circumstances of the present case, where the approval of the NCTE was obtained and thereafter anticipating affiliation from the University, the institution has admitted students, held that mere recognition by the NCTE will not amount to automatic grant of affiliation by the University and no college can claim affiliation as of right and it is only for the University in its discretion to grant affiliation or not and that admission of students before affiliation was granted by the University was wholly illegal. Reliance is also placed on the decision of the Supreme Court in A.P.Christians Medical Educational Society -vs- Government of Andhra Pradesh, 1986 (2) SCC 667, where the Supreme Court has held that the Court cannot direct the University to disobey the statutes to which it owes its existence and the regulations made by the University itself. In view of this apparent conflict of opinions about the role of University vis-à-vis the teacher training institutions, the Division Bench has referred this matter to the Full Bench. 4. We have heard Mr.P.Jayaraman, learned Senior Counsel appearing for the petitioner; Mr.G.Sankaran, learned Special Government Pleader (Education) appearing for the first respondent; Mr.V.Govardhanan, learned counsel appearing for respondents 2 and 3 i.e., Manonmanian Sundaranar University and its Controller of Examinations. Considering the importance of issues involved, notices were issued to all the concerned Universities as well as the NCTE and Mr.M.Sekar, Mr.S.Sethuraman, Mr.Kandavadivel Doraisamy, Mr.V.Govardhanan learned counsel appearing for various Universities and Mr.P.R.Gopinath, learned counsel appearing for the NCTE made their submission. Mr.N.R.Chandran and Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the intervening institutions also made their submissions. 5. Mr.P.Jayaraman, learned senior counsel appearing for the petitioner contended that since the NCTE granted recognition by its order dated 06.10.2006 for the academic year 2006-2007, the University was bound to grant affiliation for the same academic year, in view of the mandatory provisions contained in Section 14 (6) read with Section 17 (3) and (4) of the NCTE Act. Learned counsel urged that in view of judgment of the Supreme Court in Union of India vs. Shah Goverdhan L.Kabra Teacher’s College, 2002 (8) SCC 228 and in State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, 2006 (9) SCC 1, the field of Teacher Education is fully occupied by the NCTE Act enacted by the Parliament under Entry 66 List I and any encroachment made by any of the provisions of the relevant University Act shall be deemed to be inoperative. Learned senior counsel submitted that a teacher training institute is entitled to admit students immediately after recognition and that the restriction placed by the University Act and Statutes that the admission shall be made only after the affiliation is granted, is an encroachment into the occupied field of a Central Legislation. He also submitted that after the judgment of the Division Bench of this Court in Vinayaka Mission's College of Nursing and Para-Medical Sciences -vs- The Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Nurses and Midwives Council (supra), the University has no power to reject an application on the ground that it was made after a cut- off date or on the ground that it is belated, once the expert body under the Central Legislation had granted recognition. 6. Mr.N.R.Chandran and Mr.R.Muthukumarasamy, learned senior counsel appearing for the intervening institutions submitted that after the enactment of the NCTE Act, the NCTE is the final authority and has primary voice in establishing teacher training institutions. Learned counsel submitted that sub-section (6) of Section 14 of the NCTE Act expressly mandates the University to act in accordance with the directions of the NCTE and the University cannot over-look the statutory scheme. Therefore, when once the NCTE has made inspection and was satisfied that the necessary infrastructure was available and the institution would be able to conform to the required standards of education, the grant of affiliation is a mere consequence and no discretion is left to the University so far affiliation as is concerned. Heavy reliance was placed on the decision of the Supreme Court in State of Tamil Nadu v.Adhiyaman Educational and Research Institute, 1995 (4) SCC 104; Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust -vs- State of Tamil Nadu, 1996 (3) SCC 15; and Jaya Gokul Educational Trust -vs- Commissioner of Secretary to Government, Higher Education Department, 2000 (5) SCC 231. A reference was also made to a Division Bench judgment of this Court in Bharathidasan University vs Dhanalakshmi Srinivasan Educational and Charitable Trust, 2005 (2) CTC 182, where the Bench held that a combined reading of Section 14(4) and 14(6) read with Section 16 of the NCTE Act obligates an affiliating body (University) to grant affiliation on receiving information as to recognition of an institution from the NCTE and leave no discretion to the affiliating body to stipulate any more condition, especially condition of obtaining prior permission from the State Government which would render the order of recognition ineffective. 7. In reply M/s. V.Govardhanan, M.Sekar, Mr.S.Sethuraman, Mr.Kandavadivel Doraisami, learned counsel appearing for respective Universities submitted that the educational institutions cannot admit students to B.Ed course unless affiliation has been granted by the University, and hence, until and unless, the University grants affiliation to the institution, it had no right at all to admit students to the course which would lead to conferring a University degree. Learned counsel submitted that the University before granting affiliation is entitled to be satisfied that the college seeking affiliation has proper facilities, competent and qualified teaching staff and no college can claim affiliation as a matter of right. Learned counsel placed heavy reliance on the judgment of the Division Bench of this Court in The University of Madras vs Loordhu Ammal Educational Trust and another(supra) and an unreported judgment of this Court (rendered by D.Murugesan, J) in Sree Arumugam Teacher Training College v. Thiruvalluvar University (W.P.Nos. 8685, 8687, 8869 and 8786/2006 dated 04.04.2006) and yet another unreported judgment of this Court (rendered by V.Ramasubramanian,J) in Annai JKK Sampoorani Ammal Charitable Trust v. Bharathiar University (W.P.No. 34923 of 2006 fated 22.10.2006). Reliance was also placed on a decision of the Division Bench of the https://hcservices.ecourts.gov.in/hcservices/ Delhi High Court in Rahol Dhaka Vikas Society v. Guru Govind Singh Indra Prastha University and others , AIR 2001 (Del.) 154. It was, further, contended that it is not permissible for an unaffiliated institution to admit students and to permit such students to appear for the examination conducted by the University and then to compel the University to issue certificate in favour of those who have undertaken the examination. It was contended that the Supreme Court has repeatedly deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the garb of interim orders passed in the petitions. In this connection, a reference was made to the judgment of the Supreme Court in Regional Officer, CBSE v. K.U.Sheena Peethambaran, 2003 (7) SCC 719. It was also submitted that the NCTE Regulations themselves provide for atleast 200 working days inclusive of period of examination and admission etc, and since the NCTE permission came only in October 2006, the students of the petitioner institution could not complete the term days, and therefore the decision of the University to grant affiliation only from the academic year 2007- 2008 was perfectly in tune with the requirements of the NCTE Regulations. 8. Mr.P.R.Gopinathan, learned counsel appearing for the NCTE submitted that a teacher training institute is required to commence a course within the academic year specified by the concerned affiliating authority like Universities in cases of B.Ed. M.Ed., B.P.Ed., M.P.Ed., Courses and State Government for D.T.Ed., C.P.Ed., Pre-Primary etc. after obtaining Unconditional Recognition from NCTE. The University or affiliating authority is required to affiliate an institution for the academic year which is viable. If the academic year specified by the NCTE has already started before the institution obtained the recognition order, the affiliating body will decide on the matter whether to affiliate the institution in the running academic year if possible or for the next academic year. He submitted that as per the previous regulations, the last date for submission of application by the institutions was 31st December of ever year for the ensuing academic year, but after the regulations were revised the institutions can submit the applications to the NCTE throughout the year and the Regional Committee will process the applications throughout the year and it is for the concerned affiliating authority (University) to grant affiliation for the academic session, which is viable for offering the course. 9. Before we deal with the contentions of the parties, it would be appropriate if we refer to the relevant provisions of law of the Constitution delineating respective spheres of the Central and the State Legislatures. Entry 66 of List 1, i.e. the Union List of Seventh Schedule of the Constitution reads as follows:- ''66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions." This entry has remained unchanged since the inception of the Constitution. Before the Constitution (Forty-second Amendment) Act, 1976, which came into force with effect from 03.1.1977, Entry 11 in List II, i.e. the State List and Entry 25 in List III, i.e. the Concurrent List, were as follows:- https://hcservices.ecourts.gov.in/hcservices/ ''11. Education including universities subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III". Before amendment, Entry 25 reads as follows:- ''25. Vocational and technical training of Labour." After amendment, it reads as follows:- ''25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour". 10. The subject “co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions" has always remained the special preserve of Parliament. This was so even before the Forty-second Amendment, since Entry 11 of List II even then was subject, among others, to Entry 66 of List I. After the said Amendment, the constitutional position on that score has not undergone any change. All that has happened is that Entry 11 was taken out from List II and amalgamated with Entry 25 of List III. However, even the new Entry 25 of List III is also subject to the provisions, among others, of Entry 66 of List I. It cannot, therefore, be doubted nor is it contended before us, that the legislation with regard to co- ordination and determination of standards in institutions for higher education or research and scientific and technical institutions has always been the preserve of Parliament. What was contended before us was that once Parliament enacts a Legislation in respect to a particular field of education, the expert body constituted under the said Legislation shall have supremacy over the affiliating bodies like the Universities, which are created by the Acts of the Legislatures of the States and grant of affiliation would be a matter of mere formality. In order to appreciate the correctness of this contention, it is necessary to consider the relevant provisions of the NCTE Act and the Regulations framed thereunder. 11. The National Council for Teacher Education Act, 1993 (NCTE Act) has been enacted by Parliament and deals with teacher education. It came into force with effect from 01.7.1995. The Preamble of the Act is relevant and reads thus :- ''An Act to provide for the establishment of a National Council for Teacher Education with a view to achieving planned and coordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith." 12. Section 2 is definition clause, wherein various terms have been defined. "Council" is defined as the National Council for Teacher Education established under sub-section (1) of Section 3 of the Act. "Institution" has been defined in Section 2(e) of the Act as "an institution which offers courses or training in teacher https://hcservices.ecourts.gov.in/hcservices/ education". "Teacher Education" has been defined in section 2(l) thus : ''2(l) 'teacher education' means programmes of education, research or training of persons for equipping 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;" Section 2(n) defines the term "university" thus:- ''university" defined under clause (f) of Section 2 of the University Grants Commission Act, 1956 and includes an institution deemed to be a university under Section 3 of that Act. Chapter II provides for establishment of a Council and Chapter III deals with functions to be performed by the Council. Section 12 imposes duty on the Council to take necessary steps for ensuring planned and coordinated development of teacher education and for determination and maintenance of standards for teacher education. 13. Chapter IV is material and provides for recognition of teacher training institutions. Section 14 deals with recognition of institutions offering course or training in teacher education and reads as follows:- ''14 (1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations: Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee. (2) the fee to be paid along with the application under sub- section (1) shall be such as may be prescribed. (3) On receipt of an application by the Regional Committee from any institution under sub-section (1), and after obtaining from the institution concerned such other particulars as it may consider necessary, it shall,- (a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that https://hcservices.ecourts.gov.in/hcservices/ it fulfills such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or (b) if it is of the opinion that such institution does not fulfill the requirements laid down in sub-clause (a), pass an order refusing recognition to such institution for reasons to be recorded in writing: Provided that before passing an order under sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the institution concerned for making a written representation. (4) Every order granting or refusing recognition to an institution for a course or training in teacher education under sub-section (3) shall be published in the Official Gazette and communicated in writing for appropriate action to such institution and to the examining body concerned, the local authority or the State Government and the Central Government. (5) Every institution, in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of sub-section (3). (6) Every examining body shall, on receipt of the order under sub- section (4), - (a) grant affiliation to the institution, where recognition has been granted; or (b) cancel the affiliation of the institution, where recognition has been refused." 14. Section 16 of the NCTE Act reads as follows:- “ 16. Affiliating body to grant affiliation after recognition or permission by the Council: - Notwithstanding anything contained in any other law for the time being in force, no https://hcservices.ecourts.gov.in/hcservices/ examining body shall, on or after the appointing day, - (a) grant affiliation, whether provisional or otherwise, to any institution; or (b) hold examination, whether provisional or otherwise, for a course or training conducted by a recognized institution, Unless the institution concerned has obtained recognition from the Regional Committee concerned, under Section 14 or permission for a course or training under Section 15.” 15. Sections 17(3) and 17(4) of the NCTE Act read as follows: - “17. Contravention of provisions of the Act and consequences thereof: -- (3) Once the recognition of a recognized institution is withdrawn under sub-section (1), such institution shall discontinue the course or training in teacher education, and the concerned University or the examining body shall cancel affiliation of the institution in accordance with the order passed under sub-section (1), with effect from the end of the academic session next following the date of communication of the said order. (4) If an institution offers any course of training in teacher education after the coming into force of the order withdrawing recognition under sub-section (1), or where an institution offering a course or training in teacher education immediately before the appointing day fails or neglects to obtain recognition or permission under this Act, the qualification in teacher education obtained pursuant to such course or training or after undertaking a course of training in such institution, shall not be treated as a valid qualification for purposes of employment under the Central Government, any State Government or University, or in any school, college or other educational body aided by the Central Government or any State Government”. 16. Section 31 of the NCTE Act enables the Central Government to make rules to carry out the purpose of the Act. Likewise Section 32(1) of the Act empowers the Council to make regulations not inconsistent with the provisions of the Act and the rules made thereunder for the purpose of carrying out the provisions of the Act. In exercise of the powers conferred under sub-section (2) of Section 32 of NCTE Act, the National Council for Teacher Education has framed Regulations, known as, "The