CWP No.12569 of 2008 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.12569 of 2008 Date of Decision: 17-10-2008 Nancy College of Education and another ....Petitioners Versus National Council for Teacher Education and another .....Respondents Coram: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Rajiv Atma Ram, Senior Advocate, with Shri BNS Sharma, Advocate, for the petitioners. Shri Vinod S. Bhardwaj, Advocate, for respondent No.1. Shri Rohan Chaudhary, Advocate, for Shri G.S. Ghuman, Advocate, for respondent Nos. 2 and 3. Shri Sandeep Moudgil, DAG, Punjab, for respondent No.4. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. The petitioner, a self financed institution, has invoked the writ jurisdiction of this Court for directing the National Council for Teacher Education (for short `NCTE’), to permit the petitioner the additional intake of 100 students. Vide communication dated 25.7.2006 (Annexure P.1), the petitioner was recognized by the NCTE for conducting B.Ed. Course with annual intake of 100 students. Thereafter, the petitioner obtained affiliation from the Punjabi University for the academic sessions 2006- 07. It is the case of the petitioner that on 15.10.2007 (Annexure P.3), the petitioner has sought permission for additional intake of 100 students through an application submitted to the Regional Director of the NCTE. CWP No.12569 of 2008 (2) It is pointed out by the petitioner that it checked the position of the application form with respondent-NCTE and was told that the petitioner had to apply in the prescribed proforma in triplicate with the requisite fee. It is, thereafter, on 17.12.2007, the petitioner submitted an application in requisite forms and documents along with fee and FDRs. In the meantime, the National Council for Teacher Education (Recognition Norms and Procedure) Regulations 2007 (for short `the 2007 Regulations'), came into force with the date of publication of the said Regulations in the Official Gazette i.e. on 10.12.2007. The case of the petitioner is that since the petitioner has applied for recognition on 15.10.2007 i.e. prior to publication of 2007 Regulations, therefore, the request of the petitioner for additional intake has to be governed by the old Regulations and not by 2007 Regulations. In support of such contention, reliance is placed upon Clause 8(6) of the 2007 Regulations. Before we proceed further, the relevant Clauses from 2007 Regulations, read as under:- “6. Processing Fees:- There shall be a uniform fees of Rs.40,000/- for processing of an application for grant of recognition to an institution to conduct a teacher education programme or addition to programme or intake in the existing programme payable in the form of a demand draft of any Nationalized Bank drawn in favour of the Member Secretary, NCTE, payable at the city where the Office of the Regional Committee is situated. The Government institutions are exempted from payment of processing fee as per the relevant provisions of NCTE Rules, 1997, as amended from time to time. 7. Processing of Applications (1) The applicant institutions shall ensure submission of applications complete in all respects. However, in order to cover the inadvertent omissions or CWP No.12569 of 2008 (3) deficiencies in documents, the office of the Regional Committee shall point out the deficiencies within 30 days of receipt of the applications, which the applicants shall remove within 90 days. No application shall be processed if the processing fees of Rs.40,000/- is not submitted and such applications would be returned to the applicant institutions. (2) Simultaneously, on receipt of application, a written communication alongwith a copy of the application form submitted by the institution (s) shall be sent by the office of Regional Committees to the State Government/U.T. Administration concerned. xx xx xx 8. Conditions for grant of recognition (1) xx xx xx (2) xx xx xx (3) An institution shall be permitted to apply for enhancement of course wise intake in teacher education courses already approved, after completion of three academic sessions of running the respective courses. (4) xx xx xx (5) xx xx xx (6) All the applications for additional intake in B.Ed. and B.P.Ed. received on or before the date of this notification in the Gazette of India shall be considered as per the provisions of the Regulations 2005 notified on 13.1.06. However, the provisions of Regulation 8(5) above shall also be applicable to them.” The argument of the learned counsel for the petitioner is that the petitioner having submitted an application for recognition of the additional intake on 15.10.2007, therefore, the restriction of granting additional intake prior to the expiry of 3 years in terms of Regulation 8 (3) of 2007 Regulations, would not be applicable. On the other hand, the stand of the NCTE is that the request CWP No.12569 of 2008 (4) for grant of recognition was received on 17.12.2007, therefore, the request of the petitioner for additional intake cannot be considered before the expiry of three years of the initial intake in terms of Regulation 8(3) of 2007 Regulations. Learned counsel for the petitioner has further argued that 2007 Regulations were required to be placed before the Parliament in terms of Section 33 of the National Council for Teacher Education Act, 1993 (for short `the Act'). Since such Regulations have not been placed before the Parliament, such Regulations framed are not enforceable. The Hon’ble Supreme Court in National Council for Teacher Education and Anr. v. Committee of Management and Ors., AIR 2006 Supreme Court 1415, has examined the earlier Regulations framed in the year 2002 by the NCTE and held that even if such Regulations are to be considered directory in nature, still substantial compliance of the Regulations was necessary. It is obligatory on the part of the institute to file an application, which was complete in all respects. The application submitted by the petitioner on 15.10.2007 was an application simpliciter on a plain paper. Neither the complete disclosure regarding available infrastructure was made nor the fees required for processing of application forms was submitted, nor the fixed deposits in terms of the statutory Rules were furnished. Therefore, the said application cannot be treated as an application filed by the petitioner for permission for the additional intake under the Regulations. The furnishing of the said application cannot be treated to be a substantial compliance of the Regulations. In fact, the said application cannot at all be said to be under the Regulations then applicable. The application made by the petitioner only on 17.12.2007 can be said to be an application in terms of the provisions of the Regulations for the grant of permission for additional intake of 100 seats. The said application has CWP No.12569 of 2008 (5) been admittedly submitted after the publication of the 2007 Regulations. Therefore, additional intake cannot be permitted before the expiry of three years. Since the petitioner was granted recognition for the academic session 2006-07, therefore, before the expiry of three years, the request of the petitioner for additional intake, could not be considered. Thus, we are of the opinion that the petitioner cannot get permission for the additional intake prior to the expiry of three years. The argument raised by the petitioner that since the Regulations have not been laid before the Parliament, therefore, such Regulations are not enforceable, is without any merit. Section 33 of the Act, reads as under:- “33. Rules and regulations to be laid before Parliament. - Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation, or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or . regulation.” In M/s Atlas Cycle Industries Ltd. and others v. State of Haryana (1979)2 SCC 196, the Hon’ble Supreme Court has found that there are three situations of laying the Rules before the Parliament, which are as under:- CWP No.12569 of 2008 (6) “(i) Laying without further procedure; (ii) Laying subject to negative resolution; (iii) Laying subject to affirmative resolution.” The provisions of Section 33 of the Act as reproduced above, provides for a simpliciter laying of the Rules before the Parliament. The question whether the laying of the Rules before the Parliament, is mandatory or directory or whether laying is a condition precedent to their operation has been considered by the Hon’ble Supreme Court in M/s Atlas Cycle Industries' case (supra). The Hon’ble Supreme Court has held to the following effect:- “22. .......In the instant case, it would be noticed that sub-section (6) of Section 3 of the Act merely provides that every order made under Section 3 of the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made. It does not provide that it shall be subject to the negative or the affirmative resolution by either House of Parliament. It also does not provide that it shall be open to the Parliament to approve or disapprove the order made under Section 3 of the Act. It does not even say that it shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide. It does not even specify the period for which the order is to be laid before both House of Parliament nor does it provide any penalty for non-observance of or non-compliance with the direction as to the laying of the order before both Houses of Parliament. It would also be noticed that the requirement as to the laying of the order before both Houses of Parliament is not a condition precedent but subsequent to the making of the order. In other words, there is no prohibition to the making of the orders without the approval of both Houses of Parliament. In these circumstances, we are clearly of the view that the CWP No.12569 of 2008 (7) requirement as to laying contained in sub-section (6) of Section 3 of the Act falls within the first category, i.e. “simple laying” and is directory not mandatory. xx xx xx 32. From the foregoing discussion, it inevitably follows that the Legislature never intended that non- compliance with the requirement of laying as envisaged by sub-section (6) of Section 3 of the Act should render the order void. Consequently non-laying of the aforesaid notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question before both Houses of Parliament cannot result in nullification of the notification.” In the aforesaid case, the reference was made to D.K. Krishnan v. Secretary, Regional Transport Authority, Chittor , AIR 1956 Andhra 129, wherein the validity of Rule 134A of the Madras Motor Vehicles Rules, 1940, was considered and it was held by the Hon’ble Mr. Justice Subba Rao, as he, then was, to the following effect:- “The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or Legislature to control delegated legislation. That control is sought to be effected by directing the rules or regulations made by the delegated authority to be laid before the Parliament. Where the statute makes the laying of the rules before Parliament a condition precedent or the resolution of the Parliament a condition subsequent, there is no difficulty as, in the former case, the rule has no legal force at all till the condition precedent is complied with and in the latter case, it ceased to have force from the date of non-compliance with the condition subsequent. Nor can there be any difficulty in a case where the Parliament or the Legislature, as the case may be, specifically prescribes the legal effect of non- compliance with that condition. But more important CWP No.12569 of 2008 (8) question arises when the Parliament directs the laying of the rules before the Parliament without providing for the consequences of non compliance with the rule. In the case of a statute directing rules to be laid before the Parliament or the Legislature without any condition attached, the rule is only directory. Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interests, the dereliction of the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules. It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rule shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the Parliament or the Legislature, as the case may be if they intended to make that rule mandatory, they would have clearly mentioned the legal consequences of its non- compliance as they have done in other cases. This rule [ i.e. the one contained in Section 133 (3) ] therefore, is not made either a condition precedent or a condition subsequent to the coming into force of the rules. It does not provide for any affirmative resolution. The rule continues to be in force till it is modified by the Parliament. If sub-section (3) is only directory, in view of the opinion expressed by us, it is clear from a fair reading of the words used in the section that the rules made under the section came into effect immediately they were published and they continued to be in force because it is not suggested that they were modified by the Legislature. We, therefore, hold that the rule in question is valid.” In Bharat Hari Singhania and others v. Commissioner of Wealth Tax (Central) and others 1994 Supplementary (3) Supreme Court Cases 46, the Hon’ble supreme Court has held to the following effect:- CWP No.12569 of 2008 (9) “24. Dr. Gauri Shankar submitted that inasmuch as Section 46 provides for the rules being laid before both the Houses of Parliament for the specified period, it must be deemed that Parliament has approved these rules. The consequence, according to the learned counsel, is that the rules have acquired a higher status – almost as good as that of the statute itself. It is not possible to agree. The requirement of laying before the House is one form of parliamentary control. But by that means, the rules do not acquire the status of the statute made by Parliament. Indeed, the rules are effective as soon as they are made and published. Parliament is, no doubt, entitled to modify the said rules in such manner as it thinks appropriate or even annul them. But it does not mean that the rules become effective only after the expiry of the period for which they are to be laid before Parliament. Section 46(4) expressly provides that any such modification or annulment of rules by Parliament “shall be without prejudice to the validity of anything previously done under that rule”. To reiterate, the rules even after they are laid before both Houses of Parliament for the specified period, yet continue to be delegated legislation. All that may be said is that Parliament did not find any justification to amend or modify the rules, and nothing more.” Still later, in Quarry Owners' Association v. State of Bihar and others, (2000)8 Supreme Court Cases 655, it was held that every function and every exercise of power, by the State Government is under one or the other Ministry which in turn is accountable to the legislature concerned. Where any document, rule or notification requires placement before any House or when placed, the said House inherently gets the jurisdiction over the same, each member of the House, subject to its procedure gets the right to discuss the same, they may put questions to the Ministry concerned. Irrespective of the fact that such rules or CWP No.12569 of 2008 (10) notifications may not be under the purview of its modification, such member may seek explanation from such Ministry of their inaction, arbitrariness, transgressing limits of their statutory orbit or any such other matter. The Hon’ble Supreme Court has held as under:- “55. However, since we have upheld the impugned notifications issued by the State to be within the ambit of delegation and that delegation is not excessive as there are enough guidelines and control over the State Government, notwithstanding its check on the State under sub-section (3) of Section 28, it would not have any effect on its validity. But we make it clear that when a statute as under sub-section (3) of Section 28 requires the placement, it is the obligation of the State Government to place such with this specific note before each House of State Legislature. Even if it has not been done, the State shall now do place before each House of the State Legislature at the earliest, the notification dated 28.9.1994 and will also do so in future while framing rules or issuing any notifications under the Rules framed under sub-section (1) of Section 15 of the Act.” Finally, the Hon'ble Supreme Court, concluded to the following effect:- “61. (a) to (c) xxx xxx xxx (d) Requirement of mere placement of the rules or the notifications before the State Legislature is also one of the forms of check on the State Government to exercise its powers as a delegatee. (e) In this case, the impugned notification dated 28.9.1994 has not been placed as required by sub- section (3) of Section 28 of the Act. The State Government is directed to do so now at the earliest. (f) However, non-placement of the said notification would not invalidate the same, as this requirement is only directory.” In view of the aforesaid provisions of law, we are of the CWP No.12569 of 2008 (11) opinion that in terms of Section 33 of the Act, the Regulations are required to be placed before the Parliament, but such requirement is only directory and is in the form of Parliamentary control over the State Government exercising powers of delegated legislation. If the Parliament modifies such Regulations, only then such modified Regulations would come into force, but in the absence of any modification, the Regulations will not cease to be operative. In view of the above, there is no merit in the present writ petition. Consequently, the same is dismissed. (HEMANT GUPTA) JUDGE (KANWALJIT SINGH AHLUWALIA) JUDGE October 17, 2008 ds