SCA/612/2006 1/36 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 612 of 2006 With SPECIAL CIVIL APPLICATION No. 614 of 2006 To SPECIAL CIVIL APPLICATION No. 621 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ==================================================== 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 ? ==================================================== SHREE RAMNATH CHARITABLE & EDUCATION TRUST - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ==================================================== SCA/612/2006 2/36 JUDGMENT Appearance : MS MAMTA R VYAS for Petitioner(s) : 1, MR PRACHCHHAK AGP for Respondent(s) : 1-3, MR PRAKASH K JANI for Respondent(s) : 2 ================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/02/2006 ORAL JUDGMENT 1. As common question of law and facts arises in this group of petition, the same are being disposed of by this common judgement and order. 2. By way of these petitions the respective petitioners have prayed for appropriate writ, order and/or directions quashing and setting aside the order passed by the State Government i.e. the Deputy Director of Education, State of Gujarat, Gandhinagar in rejecting the request of the respective petitioners for No Objection Certificate (hereinafter referred to as “the NOC” for convenience) to start / open new P.T.C. College. SCA/612/2006 3/36 JUDGMENT 3. It is the contention on behalf of the respective petitioners that as they wanted to open / start a new PTC College from June, 2006, they approached the State Government for its NOC which can be sent to National Council for Teachers Education (hereinafter referred to as “the NCTE” for short). It is also the contention on behalf of the petitioners that they have already submitted necessary applications to the NCTE, Bhopal for granting them permission to start / open new PTC College from June, 2006. It is the contention of the petitioners that by communication dtd.1/12/2005, the respondent No.3 turned down the request of the respective petitioners for grant of NOC to start new PTC College by observing that against the requirement of 4000 to 5000 trained teachers every years approximately for the Primary School in the State, more than 12,000 PTC Trained candidates are available and therefore, it is decided by the State Government not to grant NOC for any new College or increasing the intake in the existing college. Being SCA/612/2006 4/36 JUDGMENT aggrieved with the same, the petitioners have preferred the present petitions under Article 226 of the Constitution of India and have also requested to direct the respondents to grant NOC to the petitioners Trust for starting new PTC College from 2006. In the alternate, the petitioners have also prayed for an appropriate writ, order and/or directions directing the respondent No.2 – NCTE to decide the application of the petitioners for opening PTC College independently. 4. Relying upon the judgement of this Court in the case of Shree Gram Sarvajanik Education Trust, and Vs. State of Gujarat, reported in AIR 2005 Guj.247, judgement and order passed by the Division Bench of this Court dtd.30/11/2005 rendered in Letters Patent Appeal No.1571 of 2005 and other cognate matters, Ms.Mamta Vyas learned advocate appearing on behalf of the respective petitioners have requested to allow the present petitions by directing the NCTE to decide and dispose of their applications and to take appropriate decision on the SCA/612/2006 5/36 JUDGMENT application for grant of recognition independently and without in any way influenced by the refusal of NOC by the State Government. Ms.Mamta Vyas learned advocate has also submitted that as held by this Court in the case of Shree Gram Sarvajanik Education Trust (Supra) grant or refusal of NOC by the State Government is not conclusive or binding upon the NCTE. It is ultimately for the NCTE to consider the application on merits. However, views of the State Government are required to be considered by NCTE. Therefore, it is requested to allow the present petitions and direct the NCTE to decide the applications submitted by them in accordance with law and on merits independently and without being influenced by the refusal of NOC by the State Government. 5. In response to the notice issued by this Court, Mr.P.K. Jani, learned advocate appears on behalf of the NCTE and Mr.Prachchhak, learned AGP appears on behalf of behalf of State Government and Director of Primary Education. SCA/612/2006 6/36 JUDGMENT 6. Mr.P.K. Jani, learned advocate appearing on behalf of the NCTE has submitted that the judgement of this Court in the case of Shree Gram Sarvajanik Education Trust (Supra) was based upon the rules prevailing at the relevant time and thereafter, considering various judgements of various Courts including the Hon'ble Supreme Court, the NCTE Regulations has been amended and now there are new regulations known as National Council for Teachers Education (Recognition Norms and Procedure), Regulation, 2005 (hereinafter referred to as “the Regulations of 2005” for short) framed under sec.32(2) of the NCTE Act of 1993 and earlier regulations are now not in existence and that now the applications submitted by the respective petitioners for grant of recognition and/or permission to start new PTC College from the academic year 2006-2007, more particularly from June, 2006, are required to be decided and dealt with considering the Regulations of 2005 which has come into force w.e.f. 13/1/2006, as the Regulations of 2005 are SCA/612/2006 7/36 JUDGMENT published in the Official Gazette on 13/1/2006. He has submitted that now as per the new Regulations of 2005, the applicants are not required to approach the concerned State Government for NOC and they are not required to produce NOC of the concerned State and instead of that, the duty is cast upon the NCTE itself to send the applications to the State Government and to have their views within stipulated time and if any objection is received from the State, the same is required to be considered by the NCTE before granting the recognition and if no objection / view of the State Government is received then the applications are required to be considered on that basis. Mr.Jani has further submitted that now the impugned rejection and/or refusal of NOC by the State Government has no significance and the applications are required to be considered in light of the new Regulations of 2005 and the NCTE is required to adopt the procedure as laid down in the Regulations of 2005 and therefore, it is submitted that by now, the applications of the petitioners will be dealt with in SCA/612/2006 8/36 JUDGMENT accordance with the Regulations of 2005. 7. Mr.Prachchhak, learned AGP is not in a position to dispute that new Regulations of 2005 have come into force w.e.f. 13/1/2006 and that the applications of the petitioners are required to be considered and dealt with in accordance with the Regulations of 2005. 8. Ms.Mamta Vyas, learned advocate appearing on behalf of the the respective petitioners has half-heartedly tried to submit that as the applications were submitted by the petitioners prior to 13/1/2006, the same are required to be considered on the basis of rules and regulations which were prevailing prior to 13/1/2006. 9. Dealing with the aforesaid contentions, Mr.Jani, learned advocate appearing on behalf of NCTE has while relying upon the judgement of the Hon'ble Supreme Court in the case of Jose Da Costa and another Vs. Bascora Sadashiva Sinai Narcornin and others, reported in AIR SCA/612/2006 9/36 JUDGMENT 1975 SC 1843 and in the case of Gurubachan Singh Vs. Satpal Singh and ors., reported in AIR 1990 SC 209 as well as the judgement of the Privy Council in the case of Delhi Cloth and General Mills Company Limited Vs. Income Tax Commissioner, Delhi and ors., reported in AIR 1927 Privy Council 242 has submitted that while provisions of statute dealing merely with matters of procedure have retrospective effect and only when the provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively, in the absence of expressed enactment or necessary intendment. Therefore, it is submitted that as the applications of the petitioners are required to be scrutinised and considered now and therefore, certainly they are required to be considered “as per the Regulations of 2005, more particularly Regulation 7 which deals with the procedure to scrutinise and decide the application. Therefore, it is submitted by him that merely because the applications of the petitioners were prior to 13/1/2006, it cannot be said that the applications of the petitioners are not required to be decided SCA/612/2006 10/36 JUDGMENT considering the Regulations of 2005. 10. Heard the learned advocates appearing on behalf of the parties. 11. Relying upon the rules and regulations which were prevailing prior to 13/1/2006 i.e. the Regulations of 2002, amended Regulations of 2003, this Court in the case of Shree Gram Sarvajanik Education Trust (Supra) has held that grant and/or refusal of NOC by State Government is not conclusive or binding upon the NCTE and it is ultimately for the NCTE / Regional Committee to take an appropriate decision on the application for grant and/or recognition and view expressed by the State Government will be considered by the Regional Committee while taking the decision on the application for grant of recognition and accordingly, the Regional Committee of NCTE was directed to take appropriate decision in accordance with law and on merits considering the Sub-Regulation 4 of Regulation 6 for grant of recognition submitted by the SCA/612/2006 11/36 JUDGMENT respective applicants by holding that the grant and/or refusal of NOC by the State Government is not conclusive or binding and the views expressed by the State Government which are constituted while rejecting the applications of the respective petitioners for NOC and/or while not granting NOC are required to be considered by Regional Committee while taking decision on the applications for recognition submitted by the respective applicants. 12. It is also required to be noted that while disposing of the Letters Patent Appeal No.1571 of 2005, dealing with the PTC College, the Division Bench of this Court has made certain valuable observations and issued certain directions to the State Government as well as NCTE, some of them are as under;- (i)It is imperative for the Regional Committee of NCTE, Bhopal as well as State Government and Director of Primary Education to have a meaningful dialogue on SCA/612/2006 12/36 JUDGMENT the assessment of the need and other requirements for planned and co-ordinated development of the teacher education system in the State. (ii)It will be in the fitness of things if both the State Government (including the Director of Primary Education) and NCTE have a meaningful dialogue for assessing the need or otherwise for having more PTC Colleges in the State of Gujarat, location where such colleges are needed and subjects and specialities for which such Colleges need to be established or expanded; and to conclude such dialogue well before the last date of receiving the applications for recognition which are to be submitted in the institutions proposing to establish new PTC Colleges. (iii)It is, therefore, high time that the National Council for Teacher Education or its Regional Committee at Bhopal in consultation with the concerned State Governments prepare such a time schedule and avoid any further non-utilization of time, resources SCA/612/2006 13/36 JUDGMENT and energy of all concerned. Till such time schedule is fixed by any statutory regulations, the Court proposes to indicate the time schedule which shall be observed both by the Regional Committee, NCTE, Bhopal and the State Education authorities and all the institutions getting provisional recognition/ recognition from the Western Regional committee, NCTE. The dialogue between the State authorities and the NCTE for assessing need for number of trained primary teachers required in each academic year shall be concluded on or before 31st October of the year prior to the commencement of the relevant academic year and the NCTE shall take decision on applications for recognition by 31st July of the relevant academic year (and in no case later than 15th August). The first round of counselling for the admission process shall be completed not later than 31st August of the relevant academic year and the last round of counselling for admissions shall be concluded by 30th September of the relevant SCA/612/2006 14/36 JUDGMENT academic year. This shall be treated as the time schedule operative from the next academic year (2006-07) subject to any changes which may be made by the NCTE and the State Government authorities. For the academic year 2006-07, the assessment of the need for primary teachers required in the State shall be made by 31st December, 2005. In the said judgement, the Division Bench has also clarified that, the role to be played by the Director of Primary Education in ensuring that the NCTE norms are properly observed by the institutions and other PTC Colleges is not to be treated as undermined by any of the observations made or directions given in the said judgement. 13. Now there are new Regulations of 2005 called National Council for Teacher Education (Recognition Norms and Procedure, 2005) and the said Rules of 2005 SCA/612/2006 15/36 JUDGMENT has come into force w.e.f. 13/1/2006 i.e. the date of its publication in the Official Gazette. The said Regulation shall be applicable to all the matters relating to Teacher Education Programme covering norms and standard and procedure for recognition of institutions, commencement of new programmes and addition to sanctioned intake in existing programmes and other matters incidental thereto. As per Regulation 4, the following categories of institutions are eligible for consideration of their applications under Regulations of 2005. (i)Institutions established by or under the authority of Central/State Government/UT Administration; (ii)Institutions Financed by Central/State Government/UT Administration to the extent of not less than 50% of their recurring costs; (iii)All universities, including institutions deemed to be universities, so recognized under UGC Act, 1956. (iv)Self Financed educational institutions established and operated by “not for profit” Societies and Trusts SCA/612/2006 16/36 JUDGMENT registered under the appropriate law. Rule 5 speaks about the manner of making application, which reads as follow; (i)An institution eligible under Regulation 4, desirous of running a teacher education programme may apply to the concerned Regional Committee of NCTE in the prescribed form in triplicate along with processing fee and requisite documents, for recognition. (ii)The form can be downloaded from the Council's website www.ncte-in.org, free of cost. The said form can also be obtained from the office of the Regional Committee concerned by payment of Rs.1000 by way of a demand draft of a Nationalised bank drawn in favour of the Member Secretary, NCTE payable at the city where the office of the Regional Committee is located. (iii)An application can be submitted SCA/612/2006 17/36 JUDGMENT conventionally or electronically on-line. In the latter case, the requisite documents in triplicate along with the processing fee shall be submitted separately to the office of the Regional Committee concerned. Those who apply on-line shall have the benefit of not to pay for the form. As per Regulation 6, fee of Rs.40,000 is prescribed for processing 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 Nationalised Bank drawn in favour of the Member Secretary, NCTE payable at the city where the office of the Regional Committee is situated. Regulation 7 is with regard to processing of the application and by Regulation No.7 now, the entire procedure is drastically changed. Regulation No.7 reads as SCA/612/2006 18/36 JUDGMENT under;- (1)Applications which are complete in all respects shall be processed by the office of the Regional Committee concerned within 30 days of receipt of the such applications. (2)The applications shall be processed as under;- (i) The particulars of the institutions shall be hosted on the official website of the Regional Committee concerned of the National Council for Teacher Education. (ii) This will serve as an electronic communication to the applicant and also the State Government/UT Administration concerned for necessary follow up action on their part. (iii) A written communication in addition shall also follow to the applicant. (iv) A written communication along with a copy of the application form submitted by the institution(s) of the concerned State/UT shall be sent to the State Government/UT Administration concerned. SCA/612/2006 19/36 JUDGMENT (3)On receipt of the communication, the State Government/UT Administration concerned shall furnish its recommendations on the applications to the office of the Regional Committee concerned of the National Council for Teacher Education within 60 days from receipt. If the recommendation is negative, the State Government/UT Administration shall provide detailed reasons/grounds thereof, which could be taken into consideration by the Regional Committee concerned while deciding the application. If no communication is received from the State Government/UT Administration within the stipulated 60 days, it shall be presumed that the State Government /UT Administration concerned has no recommendation to make. (4)Though normally the applicant institutions will ensure submission of applications complete in all respects, in order to cover the inadvertent omission of deficiencies in documents, the office of the SCA/612/2006 20/36 JUDGMENT Regional Committee shall point out the deficiencies within 30 days of receipt of the applications, which the applicants shall remove within 90 days. The date of receipt of the application after completion of deficiencies shall be treated as the date of receipt of the application complete in all respects within the meaning of Regulation 7(1). (5)Ordinarily, the inspection of infrastructure, equipment, instructional facilities etc. of an institution shall be conducted within 30 days of completion of processing of its application by the office of the Regional Committee with a view to assessing the level of preparedness of the institution to commence the course. Such inspection shall be in the chronological order of the date of receipt of the completed application in the office of the Regional Committee concerned. Amongst the applications received on the same day, alphabetical order shall be followed. (6)All the applicant institutions are expected to launch SCA/612/2006 21/36 JUDGMENT their own website simultaneously with the submission of their applications covering, inter alia, the details of the institution, its location, name of the course applied for with the intake, availability of physical infrastructure (land, building, office, classrooms, and other facilities/amenities), instructional facilities (laboratory, library etc.) and the particulars of their proposed teaching and non- teaching staff etc. with photographs for information of all concerned. (7)At the time of visit of the team of experts to an institution, the institution concerned shall arrange for the inspection to be videographed in a manner that all important facilities are videographed along with interaction with the management and the staff (if available). The visiting team shall finalize and courier their reports along with the video tapes on the same day. (8)The application and the report along with the video tapes of the Visiting Team shall be placed before SCA/612/2006 22/36 JUDGMENT the Regional Committee concerned for consideration of grant of recognition or permission to an institution in its next meting. (9)The Regional Committee shall decide grant of recognition or permission to an institution only after satisfying itself that the institution fulfills all the conditions prescribed by the NCTE and NCTE Act, Rules or Regulations, including, inter alia, the norms and standards laid down for the relevant teacher education programme/course. (10)In the matter of grant of recognition, the Regional Committee shall strictly act within the ambit of the National Council for Teacher Education Act, 1993, the National Council for Teacher Education Rules, 1997 as amended from time to time and the regulations including the norms and standards for various teacher education programmes and shall not make any relaxation thereto. The Regional Directors shall be responsible for ensuring that the decisions of the Regional Committees are not in contravention SCA/612/2006 23/36 JUDGMENT of the NCTE Act, NCTE Rules and Regulations including the norms and standards. (11)The institution concerned shall be informed of the decision for grant of recognition or permission subject to appointment of qualified faculty members before the commencement of the academic session. (12)The institution concerned, after appointing the requisite faculty/staff, shall put the information on its official website and also formally inform the Regional Committee concerned. The Regional Committee concerned shall then issue a formal unconditional recognition order. (13)In cases where the Regional Committee, after consideration of the report of the Visiting Team, is of the opinion that the institution does not fulfill the requirements for starting / conducting the course, such an institution will be allowed one more opportunity for inspection after removal of the deficiencies. For such inspection, the institution concerned shall again deposit a fee of Rs.40,000 to SCA/612/2006 24/36 JUDGMENT the Regional Committee concerned though a demand draft from any Nationalised Bank drawn in favour of the Member Secretary, NCTE payable at the city where the Regional Committee is located. However, no such fee is required if the deficiencies pointed out are minor in nature not involving civil construction or the like and the ratifications are verifiable without physical inspection. (14)The reports of inspection of the institutions along with the names of the Visiting Team Experts shall be made available on the official website of the Regional Committee concerned after the same have been considered by the Regional Committee. As per Regulation 8, an institution must fulfill all the prescribed conditions related to norms and standards as prescribed by the NCTE for conducting the course or training in teacher education. These norms, inter alia, cover conditions relating to financial resources, accommodation, library, laboratory, other physical SCA/612/2006 25/36 JUDGMENT infrastructure, qualified staff including teaching and non- teaching personnel, etc. and in the first instance, an institution shall be considered for grant of recognition for the basic unit as prescribed in the norms and standards for the particular teacher education programme and an institution shall be permitted to apply for enhancement of intake in a teacher education course already approved after completion of three academic sessions of running the course. As per Regulation 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. The institution/society shall furnish an affidavit on Rs.100 stamp paper duly attested by Oath Commissioner stating SCA/612/2006 26/36 JUDGMENT the precise location of the land (village, district, State etc.), the total area in possession and the permission of the competent authority to use the land for educational purposes, mode of possession i.e. ownership or lease. 14. Now, considering Regulation 7, the applications which are complete in all respects is required to be processed by the office of the Regional Committee concerned within 30 days of the receipt of such applications and the said applications are now required to be processed as per Sub-Regulation 2 of Regulation 7. A written communication along with a copy of the application form submitted by the institutions of the concerned State/UT Administration are required tobe sent by the Regional Committee of the NCTE to the State Government. On receipt of the communication, the State Government / UT Administration concerned is required to furnish its recommendations on the applications to the office of the Regional Committee concerned of the NCTE within 60 days from the receipt. If the recommendation is SCA/612/2006 27/36 JUDGMENT negative, the State Government / UT Administration is required to provide detailed reasons / grounds thereof, which are required to be taken into consideration by the Regional Committee concerned while deciding