SCA/7807/2008 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7807 of 2008 For Approval and Signature: HONOURABLE MR. JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SHAHJANAND EDUCATION TRUST - Petitioner(s) Versus HEMCHANDRACHARYA NORTH GUJARATUNIVERSITY PATAN & 3 - Respondent(s) ========================================================= Appearance : MR PRAKASH K JANI for Petitioner(s) : 1, MR MITUL K SHELAT for Respondent(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 2 - 4. MR AJ SHASTRI for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 13/06/2008 ORAL JUDGMENT In this petition under Article 226 of the Constitution of India, the petitioner has challenged the decision and order dated 12.05.2008 taken by SCA/7807/2008 2/33 JUDGMENT the Executive Committee of respondent No.1- University in the meeting held on 30.04.2008. A copy of the said decision, which is a Resolution being Resolution No.42(21) passed by the Executive Committee of respondent No.1 in the meeting on 30.04.2008 is placed on record at Annexure-D [Page 65 of the petition). By virtue of the said decision, communicated to the petitioner on 12.05.2008, respondent No.1-University has declined the petitioner’s request for affiliation despite the fact that the petitioner has been granted recognition by the National Council for Teacher Education (‘NCTE’ for short) under the provisions of the National Council for Teacher Education Act, 1993 [hereinafter referred to as 'the Act'] read with the National Council for Teacher Education (Recognition, Norms & Procedure) Regulations, 2005 (hereinafter referred to as 'Regulations 2005). While challenging the said decision and action of respondent No.1-University, the petitioner has also prayed that appropriate directions may be issued directing respondent No.1-University to grant SCA/7807/2008 3/33 JUDGMENT affiliation and to place the petitioner-College in the list of B.Ed. college approved for admissions for the current academic year starting from 16.06.2008. 2. Mr.P.K.Jani has appeared for the petitioner which is a Trust incorporated as a Public Trust and runs education institute imparting education and seeks to start a B.Ed. college. Upon hearing Mr. Jani for the petitioner, notice was issued to respondent Nos.1 and 2. In response to the notice, Mr.Mitul K. Shelat, appears for respondent No.1- University. Mr.Shelat submitted that in view of the facts of the case and allegations made by the petitioner, the NCTE would be necessary party. In that view of the matter, the petitioner has impleaded, by amending the petition, the NCTE as respondent No.3 and State of Gujarat as respondent No.4. Notices were issued to the said respondents and Mr. Shastri, learned Advocate has entered appearance on behalf of NCTE i.e. respondent No.3. Affidavit of respondent No.1- SCA/7807/2008 4/33 JUDGMENT University and respondent No.3-NCTE have been filed. 3. The relevant facts are in a very narrow compass. The petitioner made an application for recognition, as required under the provisions of the Act, on 27.12.2006 to the respondent No.3 and requested that recognition to its college for B.Ed. course may be granted. The said application remained pending for quite long time with respondent No.3 NCTE and before any final decision could be taken the respondent No.3 brought in effect, from 10.12.2007 (hereinafter referred to as 'Regulation 2007') i.e., after one year since the application was made, amendment in the Regulations 2005 including the Clause 8(5) of the Regulations 2005 pertaining to infrastructural facilities. Then, despite and after the amendment the Respondent No.3 NCTE granted, by an order dated 17.3.2008, recognition in favour of petitioner's B.Ed. college. In view of the recognition, the petitioner made application-request for application to the respondent No.1 university. The respondent No.1 SCA/7807/2008 5/33 JUDGMENT university has, upon taking into account the amendment in erstwhile clause 8(5) i.e., new Clause 8(7), rejected the request on the ground that the petitioner did not fulfill the requirement regarding infrastructural facility as required by Clause 8(7) of the Regulations 2007. Aggreived by the said decision, the petitioner is before this Court. Mr. P.K. Jani has appeared for petitioner and Mr. M.K. Shelat has appeared for respondent No.1 university and Mr. AJ Shastri has appeared for respondent No.3 NCTE. 4. Heard the learned advocates for respective parties. Today, submissions at some length have been made by Mr.Shelat for respondent No.1- University. While referring to and relying upon the reply affidavit of respondent No.1-University, Mr. Shelat submitted that the decision of respondent No.1-University is based on, and it came to be taken in light of, the amendment effected by respondent No.3-NCTE in its Rules i.e. above referred SCA/7807/2008 6/33 JUDGMENT Regulations 2007 and all that the respondent No.1- University has done is that it has relied upon and put into effect the said amendment in the regulation which, inter alia, requires that the institute seeking to impart education for B.Ed. courses/degree must possess land, on the date of application, free from encumbrances which should be either of its ownership or must be taken on lease from government/government institution for a period of not less than 30 years and since the petitioner does not fulfill the said condition, the affiliation has been denied. 5. Mr. Jani submitted that once NCTE granted, despite the said amended provisions in the aforesaid Rules, the recognition to the petitioner-college then the respondent-University cannot decline affiliation. In support of the said submission Mr. Jani heavily relied upon the judgment of the Hon'ble Apex Court in case of State of Maharashtra Vs. Sant Dhyaneshwar Shikshan Shastra Mahavidyalya and Ors., reported in (2006) 9 SCC 1. He also relied upon the SCA/7807/2008 7/33 JUDGMENT order dated 07.08.2006 passed by this Hon'ble Court (Coram: Hon'ble Mr. Justice Akil Kureshi) in Special Civil Application No.13906 of 2006. Mr. Jani also relied upon the reply affidavit filed on behalf of respondent No.3-NCTE, particularly on the avermens made in Paragraph Nos.7 and 9 of the said affidavit. 6. Mr. Shelat further submitted that the said Regulations 2007 of respondent No.3-NCTE are in the nature of delegated legislation and would apply to the applications pending for consideration but not decided on the date on which the amendment is notified. He submitted that the subject amendment is notified on 10.12.2007 and since the petitioner’s application to respondent No.3-NCTE for recognition was pending on 10.12.2007, the said application would be governed by the said amended provisions and the same would apply to the said application. 7. In view of the contentions raised by the respective parties, the petition is required to be admitted. Hence RULE. However, considering the fact SCA/7807/2008 8/33 JUDGMENT that the admission process is likely to be commenced very shortly upon the request of the parties and with their consent, the matter is taken up for final hearing and disposal today. 8. It is not in dispute that the petitioner seeks to commence B.Ed. course with an annual intake of 100 students in its college for which an application for recognition to respondent No.3-NCTE was made on 27.12.2006 and that the petitioner does not have land and/or building of its ownership however it has entered into a rent agreement with another Trust, who owns a building and has given, on rent to the petitioner, a building with furniture, computer room, library, education equipments, playground, etc. for its B.Ed. college and the said rent agreement is dated 09.12.2006 and there is also no dispute that the petitioner made an application for recognition on 27.12.2006 i.e. after the said rent agreement was executed. 9. The petitioner has asserted that it was SCA/7807/2008 9/33 JUDGMENT after carrying out necessary inspection, etc. and after satisfying itself about compliance with relevant terms and conditions by the petitioner, that the respondent No.3 granted recognition in favour of the petitioner-Trust by an order dated 17.03.2008, subject to fulfillment of the conditions mentioned therein. Thereafter, on the basis of such recognition by respondent No.3-NCTE, the petitioner applied for affiliation however respondent No.1- University has, by virtue of the resolution passed in the meeting held on 30.04.2008, declined affiliation to the petitioner-Trust. 10. It is also not in dispute that the date on which the petitioner made the application for recognition to respondent No.3-NCTE, the provisions requiring ownership of land by the applicant was different from the one which came to be introduced by notification dated 10.12.2007 and was in operation on the date order granting recognition was passed. In this regard it is necessary to recall that the application for recognition was made on SCA/7807/2008 10/33 JUDGMENT 27.12.2006 and at that time the below mentioned clause was in force; Clause 8(5). “No institution shall be granted recognition under these regulations unless it is in possession of required land on the date of application. The land free from all encumbrances could be either on ownership basis or on lease for a period of not less than 30 years. In cases where under relevant State/UT laws the maximum permissible lease period is less than 30 years, the State Government/UT Administration law shall prevail.”(emphasis given) 11. Thereafter, amendment came to be effected in the said Regulations 2005 including the aforesaid clause. The respondent No.3-NCTE has stated that the said change came into effect from 10.12.2007. At that point of time the application of the petitioner for recognition was already pending. The clause in 2007 Regulations which is relevant is Clause No.8(7) of Regulations 2007 and it reads SCA/7807/2008 11/33 JUDGMENT thus: “No institution shall be granted recognition under these regulations unless it is in possession of required land on the date of application. The land fee from encumbrances could be either on ownership basis or on lease from Government/Government Institutions for a period of not less than 30 years. In cases where under relevant State/UT laws the maximum permissible lease period is less than 30 years, the State Government/UT Administration law shall prevail. However, no building could be taken on lease for running any teacher training course”. 12. From the aforesaid facts, it becomes clear that the application came to be granted by the NCTE after almost three months since the said amendment came in operation. 13. It also becomes clear from the aforesaid narration that the date on which respondent No.3- NCTE granted recognition, the amendment had come SCA/7807/2008 12/33 JUDGMENT into effect and that respondent No.3, who is the author of the said amendment as well as the author of the aforesaid recognition order, was aware and conscious about the amendment and also about the fact that on the date of recognition the amended provisions had been notified and were in force and despite such position the respondent No.3, it is pertinent to note, granted the recognition to the petitioner. 14. Before proceeding further, it is relevant to note that the provisions under the NCTE Act have been considered by the Hon'ble Apex Court in case of State of Maharashtra Vs. Sant Dhyaneshwar Shikshan Shastra Mahavidyalya and Ors. (supra). The Hon'ble Apex Court, in the judgment, has held: 62. From the above decisions, in our judgment, the law appears to be very well settled. So far as coordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and the State has no power SCA/7807/2008 13/33 JUDGMENT to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as the State Legislatures and appropriate Act can be made by the State Legislature subject to limitations and restrictions under the Constitution. 63. In the instant case, admittedly,Parliament has enacted the 1993 Act, which is in force. The preamble of the Act provides for establishment of National Council for Teacher Education (NCTE) 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. With a view to achieving that object, the National Council for Teacher Education has been established at four places by the Central Government. It is thus clear that the field is fully and completely occupied by an Act of Parliament and covered by Entry 66 of List I of Schedule VII. It is, therefore, not open to the State Legislature to encroach upon the said field. Parliament alone could have exercised the power by making appropriate law. In the circumstances, it is not open for the State Government to refuse permission relying on a State Act or on “policy consideration”. 64. Even otherwise, in our opinion, the High Court was fully justified in negativing the argument of the State SCA/7807/2008 14/33 JUDGMENT Government that permission could be refused by the State Government on “policy consideration”. As already observed earlier, policy consideration was negatived by this Court in Thirumuruga Kirupananda Trust as also in Jaya Gokul Educational Trust. 67. The above Regulations came into force from 13-11-2002 and they insisted that application should be accompanied by NOC from the State Government/Union Territory in which the institution is located. 68. In view of the fact, however, that according to us, the final authority lies with NCTE and we are supported in taking that view by various decisions of th is Court. NCTE cannot be deprived of its authority or power in taking an appropriate decision under the Act irrespective of absence of no objection certificate by the State Government/Union Territory. Absence or non-production of NOC by the institution, therefore, was immaterial and irrelevant so far as the power of NCTE is concerned. 74. It is thus clear that the Central Government has considered the subject of secondary education and higher education at the national level. The Act of 1993 also requires Parliament to consider teacher-education system “throughout the country”. NCTE, therefore, in our opinion, is expected to deal with applications for establishing new B.Ed colleges or allowing increase in intake capacity, keeping in view the 1993 Act and planned and coordinated development of teacher- SCA/7807/2008 15/33 JUDGMENT education system in the country. It is neither open to the State Government nor to a university to consider the local conditions or apply “State policy” to refuse such permission. In fact, as held by this Court in cases referred to hereinabove, the State Government has no power to reject the prayer of an institution or to overrule the decision of NCTE. The action of the State Government, therefore, was contrary to law and has rightly been set aside by the High Court.” 15. Subsequently, the issue as to whether the university can decline affiliation to B.Ed. college after NCTE has granted recognition came to be considered by this Hon'ble Court in case of Bharuch Jilla Adarsh Samaj Seva Mandal Vs. Veer Narmad South Gujarat University and Ors., reported in 2006(2) GLH 723, inter alia, held that once NCTE granted recognition then the State Government/ University is obliged to grant affiliation. This Court, relying on the aforesaid judgment of the Hon'ble Apex Court, held that; 7... “It is required to be noted that when the recognition has been granted by the NCTE, it is only SCA/7807/2008 16/33 JUDGMENT after following due procedure as required under the provisions of rules for recognition under the NCTE Act, i.e., after due verification and inspection by the inspecting team. The recognition is granted by the NCTE only after having satisfied that the Trust/Institute is having all infrastructural facilities and has fulfilled all other requirements. It is required to be noted that NCTE is a statutory expert body. Considering the scheme of the NCTE Act and the relevant Regulations, i.e., 'National Council for Teacher Education (Form of application for recognition, the time limit for submission of application, determination of norms and standards for recognition of teacher education, programmes and permission to start new course or training) Regulations, 1995, and the relevant provisions under the University Act with regard to grant of affiliation, the Hon'ble Supreme Court in the aforesaid decision of State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors., (supra), has specifically held that as per the scheme of the Act, once the SCA/7807/2008 17/33 JUDGMENT recognition has been granted by the NCTE under Section 14(6), every University (Examining Body) is obliged to grant affiliation to such Institution and that provisions of Section 82 and 83 of the University Act (so far as that case is concerned) do not apply to such cases. Section 34 of the South Gujarat University Act is pari materia with Sections 82 and 83 of the Maharashtra University Act. Thus, in view of the recent decision of the Hon'ble Supreme Court, once a recognition has been granted by the NCTE, it is not open for an University to refuse to grant affiliation, and the concerned University is bound to grant affiliation.Under the circumstances, the impugned decision of the respondent University, not to grant affiliation, requires to be quashed and set aside and the respondents No. 1 and 2 are required to be directed to grant affiliation to the petitioner Institute for starting Self-Financed B.Ed. College at Mangrol considering the recognition/approval by the NCTE.” SCA/7807/2008 18/33 JUDGMENT 16. In this view of the matter it is clear that once recognition is granted by the NCTE then it is not permissible or justified for the respondent- university to decline affiliation. It is significant to note, it is not the case of respondent University that in view of any provision of the University Act or any other statutory provision, the decision of respondent No.3 NCTE is not binding to it or it is not required to accept and follow the decision of NCTE regarding recognition. 17. Further, respondent No.1-University would not have jurisdiction or authority to examine the correctness or otherwise of the recognition order passed by the NCTE and if the university undertakes such an exercise or enters into the said field then it would amount to sitting in appeal over order of NCTE. 18. As noticed above, the author of the amendment in the regulations and the author of the SCA/7807/2008 19/33 JUDGMENT recognition order is one and the same and, therefore, it is not unsafe to assume that the recognition order has been passed by respondent No.3 consciously and with the knowledge about the said amendment as well as the shortfall in compliance of the requirement. 19. In the present case the said assumption is substantiated and justified by the affidavit of respondent No.3 The respondent No.3-NCTE has justified its order and explained, by its affidavit, as to why despite the amendment and even after it come into effect the order in question came to be passed. It is pertinent to note that respondent No.3-NCTE has while justifying its recognition order in favour of the petitioner, relied upon Clause 8(13) of Regulations 2007 and that, therefore, the same is reproduced herein from the affidavit of respondent No.3; “Whenever there are changes in the norms and standards for the course SCA/7807/2008 20/33 JUDGMENT or training in teacher education, the institution shall comply with the requirements laid down in the revised norms and standards immediately but not later than the date of commencement of the next academic session, subject to conditions prescribed in the revised norms”. 20. It follows from the aforesaid provision under Clause 8(13) that it would apply when there are changes “in the norms and standards for the course or training in teacher education”. The said clause provides that in such eventuality the institute which is granted recognition shall comply with such revised norms immediately, i.e., upon its coming into force or at least not later than the date of commencement of next academic session, subject to conditions prescribed in the revised norms. 21. It appears, from the affidavit of respondent No.3 NCTE that even in respect of revision in the clause regarding requirement of SCA/7807/2008 21/33 JUDGMENT infrastructural facility (effected by the respondent No.3 NCTE by virtue of the 2007 Regulations) the aforesaid provision under Clause 8(13) has been invoked and applied by respondent No.3 NCTE (for justifying its order granting recognition to the college of the petitioner Trust). Whereas on plain reading of said clause it appears that it would be applicable in cases where change/revision is made in the course or training of teacher education or its norms and standards. 22. It would be altogether a different issue as to whether the respondent No.3 is right and justified in applying the said provision, (which relates to norms and standards for the course or training in teacher education) also to the revision in requirement regarding infrastructural facility, i.e., in respect of matter other than norms & standards for the course or training. However, since neither the said decision of respondent No.3 NCTE nor the decision/order granting recognition are under consideration or in challenge before this SCA/7807/2008 22/33 JUDGMENT Court in present petition, the question of examining the said aspect does not arise. Hence, as stated by respondent No.3 NCTE in Para 9 of its affidavit, every examining body is obliged to grant affiliation to the institution where recognition has been granted, and if any examining body has grievance against the action of respondent No.3, then it can prefer appeal, meaning thereby, an examining body, on its own, cannot overule, disregard or act contrary to the decision of respondent No.3 NCTE. Respondent No.3-NCTE has also made reference of and relied upon the provisions under Section 14(6) of NCTE Act which, inter alia, provides that “every examining body shall, on receipt of the order under sub-section (4) grant affiliation to the institution, where recognition has been granted.” It is pertinent to note that after referring to and reproducing the said provision in Paragraph No.9 of the affidavit of respondent No.3-NCTE has averred as follows: “That, 2007 Regulations is subordinate SCA/7807/2008 23/33 JUDGMENT legislation to section 14 of the NCTE Act, it is difficult to understand that, when section 14(6) of the NCTE Act provides that “Every examining body shall, on receipt of the order under sub-section (4), grant affiliation to the institution, where recognition has been granted”, how can the university refuse to grant affiliation on any ground whatsoever including its own interpretation to the provisions of 2007 Regulations. If it was unsatisfied with the legality and validity of the order of recognition it was competent to prefer an appeal under section 17 of the NCTE Act.” 23. At this stage, it is also relevant to note that even Clause 8(7) of 2007 Regulation, does not provide or impose absolute requirement obliging a college to have its own land/building and the said provision also does not impose complete prohibition against having land/building on lease basis. As per said Clause 8(7) taking building/land on lease basis is permissible even now, the only restriction is that the lease should be with the Government or Government Institute. In other words, the challenge effected by the amendment in the erstwhile SCA/7807/2008 24/33 JUDGMENT 2005 Regulations, by Regulations 2007 is that, after the word “lease”, the words “from Government or Government institution” are added. As a consequence, now it has become necessary that if the college does not have land and/or building of its ownership, then it may acquire such infrastructural facility on lease basis but only from Government or Government institution. In such circumstances, before rejecting the application of the petitioner college, the respondent No.1 University ought to have, if it had any doubts in connection with the recognition order passed by the respondent No.3 NCTE to request for clarification or guideline from respondent No.3 NCTE. 24. During his submissions, the Counsel for respondent