W.P.(C)/6438/2019 of APEX UNIVERSITY Vs NATIONAL COUNCIL FOR TEACHER EDUCATION & ANR

Signed By:RAM DATTSigning Date:16.10.2024 15:53Certify that the digital and physical file havebeen compared and the digital data is as perthe physical file and no page is missing.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 19*'* September, 2019

Pronounced on: F* October, 2019

+W.P. (C) 6438/2019 and CMNo.27341/2019

APEX UNIVERSITY

Petitioner

Through: Mr. Sanjay Sharawat, Mr.Divyank Rana and Mr. AshokKumar, Advs. for petitioners

.Versus;

NATIONAL COUNCIL FOR TEACHEREDUCATIONANE)ANR.

EDUCATIONANE)ANR. .;..RespondentsT^^ Mr:" Sa^^ Jain, ASG with Mr..\ V I % I 'Miyaih Singh, Ms. ArunimaDwwedi, Ms. PreetiKumra,YMh|Udian Shanna, Mr. Jaideeptr:, .<• .... -;Rhahna U id '/rr.and Mr. Arkaj Kumar,^jri^kfbrR-NCTE

CORAM: , 'HON'BLE THE CHIEF JUSTICE .HON'BLE MR. JUSTIC^iH^ SJM%JITDSiEite^''

C. HART SHANKAR. J

For Judgment, see W.P. (C) 7666/2019 {Laxmi College ofEducation v. National Councilfor Teacher Education and Am.).

OCTOBER 01, 2019/HJ

C. HARI SHANKAJS:;!.CHIEFJUSTICE

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 19*'' September, 2019Pronounced on: P* October, 2019

W.P. (C) 7666/2019 and CM No.31863/2019LAXMI COLLEGE OF EDUCATION LAXMI COLLEGE OF EDUCATION

... .Petitioner

Versus

NATIONAL COUNCIL FOR TEACHEREDUCATION AND ANR.

Respondents

W.P. (C) 6417/2019 and CMNo.27264/2019

W.P. (CJ 6438/2019 and CM No.27341/2019

W.P. (C) 7050/2019 and CM No.29407/2019

W.P. (C) 7354/2019 and CMNo.30646/2019

W.P. (C) 7572/2019

W.P. (C) 7664/2019 and CM No.31861/2019

W.P. (C) 7665/2019 and CM No.31862/2019

W.P. (C) 7856/2019 and CM No.32668/2019

W.P. (C) 7858/2019 and CM No.32671/2019

W.P. (C) 7867/2019 and CM No.32684/2019

W.P. (C) 7869/2019 and CMNo.32689/2019

W.P. (C) 7870/2019 and CM No.32694/2019

W.P. (C) 7871/2019 and CMNo.32695/2019

W.P. (C) 7872/2019 and CM No.32696/2019

W.P. (C) 7873/2019 and CM No.32697/2019

W.P. (C) 7875/2019 and CM No.32704/2019

W.P. (C) 7908/2019 and CM No.32769/2019

W.P. (C) 8244/2019

W.P. (C) 8863/2019

W.P. (C) 9676/2019

Present: Mr. Sanjay Sharawat, Mr. Divyank Ranaand Mr. Ashok Kumar, Advs. forpetitioners in Item Nos. 66 to83Mr. Ravi Kant and Mr. Mayank Manish,

Advs. for petitioners in W.P. (C)8244/2019, 8863/2019

Mr. Neeraj Shekhar, Mr. Animesh Kumar,Mr. Sumit Kumar and Mr. AshutoshThakur, Advs. for petitioner in W.P.(C)9676/2019

Mr. Sanjay Jain, ASG with Mr. ShivamSingh, Ms. Arunima Dwivedi, Ms. PreetiKumra, Mr. Udian Sharma, Mr. JaideepKhanna and Mr. Arkaj Kumar, Advs. forR-NCTE

Mr. Ashish Kumar, Addl. AdvocateGeneral with

Mr. Rameezuddin Raja, Adv. for R-3/Stateof Rajasthan in Item No.66

CORAM:HON'BLE THE CHIEF JUSTICEHON'BLE MR. JUSTICE C.HARI SHANKAR

J U M NT

C. HART SHANKAR T

1. These writ petitions assail

(i) Clause 1.2 of Appendices 16 and 17 to the National1.2 of Appendices 16 and 17 to the Nationalof Appendices 16 and 17 to the NationalAppendices 16 and 17 to the National16 and 17 to the Nationaland 17 to the National17 to the Nationalto the Nationalthe NationalNationalCouncil for Teachers Education (Recognition Norms andProcedure) Regulations, 2014 (hereinafter referred to as "the2014 Regulations"), as amended by the National Council forTeachers Education (Recognition Norms and Procedure)Amendment Regulations, 2019 (hereinafter referred to as "the2019 Amendment Regulations"), and

Clause 1.2 of Appendices 16 and 17 to the National1.2 of Appendices 16 and 17 to the Nationalof Appendices 16 and 17 to the NationalAppendices 16 and 17 to the National16 and 17 to the Nationaland 17 to the National17 to the Nationalto the Nationalthe NationalNational

(ii) Public Notice, dated 20'*' May, 2019, issued by theNational Council for Teachers Education (Respondent No. 1herein and referred to, hereinafter, as "NCTE").

The statutory scenario

2. The NCTE, as the apex body for teacher education in India, wasestablished by the National Council for Teacher Education Act, 1993(hereinafter referred to as "the NCTE Act"), which came into effect on29^^ December, 1993. The Act was, preambularly, aimed at"establishment of National Council for Teacher Education with aview to achieving plarmed and co-ordinated development of theteacher education system throughout the country, the regulation andproper maintenance of norms and standards in the teacher educationsystem and for matters connected therewith".

3. The NCTE was established, w.e.f. July, 1995 , under Section3(1) of the NCTE Act, read with the Notification, issued by theCentral Government thereunder. The functions of the NCTE, asdelineated in Section 12 of the NCTE Act, include coordination andmonitoring of teacher education and its development in the countryand laying down of norms, for specified category of courses ortrainings in teacher education. Clauses (c), (f) and (j) of section 12,under which the NCTE purports to have acted in the present case, maybe reproduced thus:

"12. Functions of the Council -

It shall be the duty of the Council to take all such stepsas it may think fit for ensuring planned and co-

ordinated development of teacher education and for thedetermination and maintenance of standards forteacher education and for the purposes of performing-its functions under this Act, the Council may

(c) co-ordinate and monitor teacher education andits development in the country;

(f) lay down guidelines for compliance byrecognised institutions, for starting new courses ortraining, and for providing physical and instructionalFacilities, staffing pattern and staff qualification;

(j) examine and review periodically theimplementation of the norms, guidelines and standardslaid down by the Council, and to suitably advised therecognised institution;"

4. Sub-sections (1), (3) and (6) of Section 14 of the NCTE Act,which deals with "recognition of institutions offering course ortraining in teacher education", reads as under:

"14. Recognition of institutions offering course or-training in teacher education

(1) Every institution offering or intending to offer acourse or training in teacher education on or after theappointed day, may, for grant of recognition under thisAct, make an application to the Regional Committeeconcerned in such form and in such manner as may bedetermined by regulations:

Provided that an institution offering course ortraining in teacher education immediately before theappointed day, shall be entitled to continue such course

or training for period of 6 months, if it has made anapplication for recognition within the said period anduntil the disposal of the application by the RegionalCommittee.

(3) On receipt of an application by the RegionalCommittee 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 hasadequate financial resources, accommodation,library, qualified staff, laboratory and that itfulfils such other conditions required for properfunctioning of the institution for course ortraining in teacher education, as may bedetermined by regulations, passed an ordergranting recognition to such institution, subjectto such conditions as may be determined byregulations; or

(b) if it is of the opinion that such institutiondoes not fulfill the requirements laid down insub- clause (a), passed an order refusingrecognition to such institution for reasons to berecorded in writing:

Provided that before passing an orderunder sub- clause (b), the Regional Committeeshall provide reasonable opportunity to theconcerned institution for making writtenrepresentation.

(6) Every examining body shall, on receipt of the-order under sub- section (4),

(a) grant affiliation to the institution, whererecognition has been granted; or

(b) cancel the affiliation of the institution,where recognition has been refused."

5. Section 16 of the NCTE Act proscribes any examining bodyfrom granting affiliation, provisional or otherwise, to any teachereducation institution, or from holding any examination for course ortraining conducted by recognised teacher education institution,unless the institution has obtained recognition, or permission from theconcerned Regional Committee, for the said course or training.Section 18 allows any person, aggrieved by an order passed underSection 14, 15 or 17, to prefer an appeal, thereagainst, to the NCTE,within the prescribed period, and empowers the NCTE to confirm orreverse the order appealed against. Section 20 constitutes fourRegional Committees, namely the Eastern Regional Committee(ERC), Western Regional Committee (WRC), Northern RegionalCommittee (NRC) and Southern Regional Committee (SRC), and setsout the constitution thereof. Section 29(1) binds the NCTE, in thedischarge of its functions and duties, by directions, on questions ofpolicy, given, in writing, by the Central Government, to it, from timeto time.

6. Section 31 of the NCTE Act empowers the Central Governmentto frame Rules, and Section 32 empowers the NCTE to makeregulations to carry out the provisions of the NCTE Act. Such Rules,or Regulations, are required to be issued by way of notification in theOfficial Gazette, and are also required, by Section 33, to be laid beforeeach House of Parliament for total period of 30 days.

-—-I- "i

7. Of the various Rules and Regulations that have been issued,from time to time, in exercise of the powers conferred by Section 31and 32 of the NOTE Act, we are concerned, in the present case, onlywith the 2014 Regulations, before, and after, their amendment by the2019 Amendment Regulations.

8. The 2014 which came into effect on 28^^'Regulations, November, 2014, superseded the pre-existing National Council forTeacher Education (Recognition Norms and Procedure) Regulations,2009. Regulation 3, of the 2014 Regulations, which set out theapplicability thereof, to the extent it is relevant for the present case,read as under:

-"3. Applicability.

These regulations shall be applicable to all mattersrelating to teacher education programmes for preparingnorms and standards and procedures for recognition ofinstitutions, commencement of new programmes andaddition to sanctioned intake in the existing-programmes including the following, namely:

(a) recognition for commencement of newteacher education programmes which shall beoffered in composite institutions

(Emphasis supplied)

9. "Composite institution" was defined, in clause (b) ofRegulation 2 of the 2014 Regulations, as meaning "a duly recognisededucation institution or higher offering undergraduate postgraduate

programmes of study in the field of liberal arts or humanities or socialsciences or sciences or commerce or mathematics, as the case may be,at the time of applying for recognition of teacher educationprogrammes, or an institution offering multiple teacher educationprogrammes".

10. Regulation 4 enumerated the categories of institutions whichwere eligible for consideration of their applications under the 2014Regulations, and Regulation 5 sets out the manner in which theconcerned institution, desirous of running teacher educationprogramme, was required to apply therefor. Regulation 6 required theapplicant to pay the processing fees, the time of submission of theapplication and Regulation 7 set out the manner in which theapplications would be processed. Sub-Regulations (1) and (4) to (6) ofRegulation 7, which are of importance to the present case, read thus:

-"7. Processing of applications.

(1) In case an application is not complete, all requisite documents are not attached with theapplication, the application shall be treated incompleteand rejected, an applieation fees paid shall be forfeited.

(4) written communication alongwith copy ofthe applieation form submitted by the institution shallbe sent by the office of Regional Committee to theState Government or the Union territory administrationand the affiliating body concemed within thirty daysfrom the receipt of application, in chronological orderof the receipt of the original application in theRegional Committee.

(5) On receipt of the eommunieation, the StateGovernment or the Union Territory administrationeoncemed shall furnish its recommendations orcomments to the Regional Committee coneemedwithin forty five days from the date of issue of theletter to the State Government or Union Territory, asthe case may be. In ease, the State Government orUnion Territory Administration is not in favour ofreeognition, it shall provide detailed reasons orgrounds thereof with necessary statistics, which shallbe taken into eonsideration by the Regional Committeeconcerned while disposing of the applieation.

(6) If the reeommendation of the State Governmentis not received within the aforesaid period, theRegional Committee eoncemed shall send reminderto the State Govemment providing further time ofanother 30 days to fiimish their eomments on theproposal. In ease no reply is received, secondreminder shall be given for fumishing reeommendationwithin fifteen days from the issue of such secondreminder. In case no reply is received from the StateGovernment within aforesaid period the RegionalCommittee shall proeess and decide the case on meritsand placing the application before the RegionalCommittee shall not be deferred on account of non-receipt of comments or recommendation of the StateGovemment."

Sub-regulations (7) to (9) of Regulation 7 stipulate the manner inwhich, consequent to receipt - or non-receipt - of therecommendation of the State Govemment as contemplated by sub-Regulations (4) to (6) supra, the institution is to be inspected by theeoncemed Regional Committee. Sub-regulation (10) posits that theCommittee would decide of or Regional grant recognition permission,to the institution, only after satisfying itself that the institution fulfilsall the conditions prescribed by the NOTE under the NOTE Act, Rules

or Regulations, including norms and standards laid down for therelevant teacher education programmes. In the matter of recognition,sub-regulation (11) requires the Regional Committees to strictly actwithin the ambit of the NOTE Act, and the Regulations including thenorms and standards for various teacher education programmes,without allowing any relaxation therein. Sub-regulation (13) requiresthe concerned institution to be informed, through letter of intent,regarding the decision for grant of recognition or permission, subjectto appointment of qualified faculty members before thecommencement of the academic session. It is further stipulated, in thesaid sub-Regulation (13), that the letter of intent "would be sent to theinstitution and the affiliating body with the request that the process ofappointment of qualified staff as per policy of State Government orUniversity Grants Commission or University may be initiated and theinstitution be provided all assistance to ensure that the staff or facultyis appointed as per the norms of the Council within two months". Theinstitution is required to submit the list of faculty, as approved by theaffiliating body, to the Regional Committee. Sub-regulation (17)empowers the Regional Committee, in case in which, afterconsideration of the report of the visiting team and other facts onrecord, it is of the opinion that the institution does not fulfil therequirements for starting or conducting the course, to, after giving anopportunity of being heard to the institution, pass an order refusing toallow any further opportunity for removal of deficiencies or inspectionfor reasons to be recorded in writing. Such an order is appealable, tothe NCTE, under Section 18 of the NCTE Act.

11. Regulation 8 sets out the conditions for grant of recognition,and sub-regulation (1) thereof, on which the petitioners in these writ

petitions place reliance, reads thus:

"New Teacher Education Institutions shall be located incomposite institutions and the existing teacher educationinstitutions shall continue to function as stand-aloneinstitutions: and gradually move towards becoming compositeinstitutions."

Sub-regulation (2) of Regulation 8 requires every institution to fulfilall conditions, pertaining to norms and standards for conducting theprogramme or training in teacher education, which include conditionsrelating to financial resources, accommodation, library, laboratories,other physical infrastructure, and qualified staff including teachingand non-teaching personnel. Sub-regulation (3) requires theinstitution, which has been recognised by the NCTE, to obtainaccreditation, from an accrediting agency approved by the NCTE,within five years of recognition. Sub-regulation (4) stipulates that noinstitution shall be granted recognition, under the 2014 Regulations,unless the institution, or the society sponsoring the institution, is inpossession of the required land, on the date of application, free fromencumbrances. The said sub-regulation further goes on to stipulate thespecifications of such land, with which we, in the present case, are notparticularly concerned. Sub-regulation (10) of Regulation 8 stipulatesthat the University, or examining body, shall grant affiliation to theinstitution only after issuance of formal recognition order underRegulation 7(16) supra, and admissions would be made by theinstitution only after it has obtained affiliation.

12. Regulation 9 of the 2014 Regulations, which deals with "normsand standards", requires every institution, offering the programmesenlisted and enumerated in the table in the said Regulation, to complywith the norms and standards for various teacher educationprogrammes, as specified in the corresponding Appendix to theRegulations. Prior to 20'^ November, 2018, the said table enumerated15 courses, with the norms and standards, therefor, to be found inAppendices 1 to 15 to the Regulations. Vide Notification dated 20^^^November, 2018, however, the National Council for TeacherEducation (Recognition Norms and Procedure) AmendmentRegulations, 2018 (hereinafter referred to as "the 2018 AmendmentRegulations") were notified whereby, inter alia, Regulation 9 of the2014 Regulations was amended to introduce two new courses, atSerial Numbers 16 and 17 in the Table contained therein, with thenorms and standards, for these two new courses, to be found inAppendices 16 and 17 to the Regulations. Regulation 9, to the extentit was so amended and is relevant for the purposes of the presentcontroversy, may be reproduced thus:

"9. Norms and standards. -

Every Institution offering the following programmesshown in the Table shall have to comply with thenorms and standards for various teacher educationprogrammes as specified in Appendix 1 to Appendix17:

17.Four years IntegratedTeacherAppendixEducation Programme(Upper-17"Primary to Secondary)Education Programme(Upper-17"Primary to Secondary)

13. Alongside the insertion, in the Table in Regulation 9 of the2014 Regulations, the 2018 Amendment Regulations also added,eorrespondingly. Appendices 16 and 17 in the 2014 Regulations,setting out the norms and standards for the aforestated newlyintroduced 4-year Integrated Teacher Education Programmes (ITEP),for the pre-primary primary, and upper-primary to secondary, levels.Clause 1.2, in both the said Appendices, was identical, and read thus:

"The programme shall be offered in the institutions which arecomposite institutions as defined in Clause (b) of regulation 2of the National Council for Teacher Education (Recognition,Norms and Procedures) Regulation, 2014 (hereafter referredto as the principal regulation in this Appendix), on the date ofmaking an application for this programme."

14. The 2014 Regulations were amended, once again, by the 2019Amendment Regulations, which replaced, in their entirety.Appendices 16 and 17 to the Regulations. The petitioners areaggrieved by Clause 1.2 of Appendices 16 and 17 to the 2014Regulations, as thus replaced by the 2019 Amendment Regulations,which read thus:

"The Integrated Teacher Education Programme (ITEP) shallbe located in interdisciplinary academic environment whichmeans duly recognised higher education institution offeringundergraduate or postgraduate programmes of study in thefield of Liberal arts or humanities or social sciences orsciences of commerce or mathematics as the case may be."

The impugned Public Notice

15. On 20'^ May, 2019, the NOTE issued Public Notice, invitingapplications for grant of recognition/permission for the aforesaid twonew Integrated Teacher Education Programmes (referred to,hereinafter, as "ITEP"). This Public Notice, which is, chiefly, thesubject matter of challenge in these writ petitions, is required to be reproduced, in extenso, thus;

"NATIONAL COUNCIL FOR TEACHER EDUCATION(A STATUTORY BODY OF GOVERNMENT OFINDIA)

Hans Bhawan Wing-II, 1 Bahadur Shah Zafar Marg, NewDelhi-110002Website: www.ncte-india.org

20"'May, 2019

PUBLIC NOTICE

NCTE is mandated to effect planned and co-ordinateddevelopment of teacher education in the country (except theState of Jammu & Kashmir). NCTE proposes to launch two 4Years Integrated Teacher Education Programmes (ITEP).

2. In pursuance to the order of the Hon'ble SupremeCourt of India dated 15"' May 2019 in M. A. No. 982/2019 inWrit Petition Civil No. 276/2012 titled Maa Vaishno DeviMahila Mahavidyalaya vs. State of U.P. and others, theNCTE, in consultation with State Govemments/UTs, hasdecided to invite online applications from the existingCentral/ State Universities and established privateUniversities, along-with degree colleges, between 03'" June2019 to 31 July 2019, for grant of recognition/permission forthe following programmes for the academic session 2020-2021 in the States/UTs as indicated below: -

3. The applicant institutionAJniversity must submit theapplication to the concerned Regional Committee along withthe requisite documents and also with formalRecommendation of the Concerned State Government/UTadministration. ^

4. It may be noted that only those institutions as definedunder clause 1.2 of Appendixes 16 and Appendixes 17 ofNational Council for Teacher Education (Recognition, Normsand Procedure) Amendment Regulations, 2019 on the date ofmaking the application shall be eligible for this programme.Accordingly, only Universities and Degree colleges areeligible to apply for the courses mentioned above.

MEMBER SECRETARYNational Council for Teacher Education"

16. The petitioners in these writ petitions take exception to theafore-extracted Public Notice, dated 20'^ May, 2019, issued by theNCTE, on two counts. Firstly, they submit that, by limiting the

eligibility, for applying for the two ITEPs, to institutions covered byClause 1.2 of Appendices 16 and 17 to the 2014 Regulations, asamended by the 2019 Amendment Regulations, teacher educationinstitutions, such as the petitioners, despite being "compositeinstitutions", have been debarred from applying for grant ofrecognition/permission to conduct the two new ITEPs. Secondly, theyobject to the exclusion of institutions located in certain states - and, inthe case of the State of Rajasthan, certain tehsils - from being able toapply for the said two courses.

17. It may be noted, at this juncture itself, that, regarding theexclusion, of certain states - and, in the case of the State of Rajasthan,certain tehsils - from the impugned Public Notice dated 20"^ May,2019, the NCTE has explained that, prior to inviting applications byway of the impugned Public Notice, they had entered intocommunications with the various States and Union Territories,seeking their concuiTcnce to the conducting of the two new ITEP courses, in their territories, and that applications had been invited onlyfor commencement of the courses in States which unequivocallyacquiesced thereto. Where any State, or Union Territory, eitherrejected the proposal for commencing the two new ITEP courses,within its boundaries, or exhibited ambivalenee, the NCTE chose notto invite applications, for conducting the courses in such States orUnion Territories. The NCTE has placed, on record, thecorrespondence entered into, by it, with the various States and UnionTerritories, and the response, if any, received thereto, which,according to the NCTE, would rationalise its decision to limit the

invitation, vide the impugned Public Notice, to apply for starting thetwo new ITEP courses, to certain specific States or tehsils. Theresponses of the States or Union Territories, in which applicationswere not invited, or were invited only for one of the two ITEPs, or forselected areas or tehsils, may be enumerated thus:

(i) Applications were invited, from institutions located in theAndaman & Nicobar Islands, only for the pre-primary toprimary ITEP, and not for the upper-primary to secondaryITEP. The response, dated 25"^ April, 2019, from the Andamanand Nicobar Administration, to the NCTE, conveyed in-principle consent to introduction of the pre-primary to primaryITEP, from the academic session 2021-22, in the TagoreGovernment College of Education (TGCE). However, the saidcommunication informed that the TGCE was already running afour-year ITEP (Upper primary to Secondary), which wassimilar to the upper-primary to secondary ITEP newlyintroduced by the NCTE. It would be seen, therefore, that, inthe case of the Andaman and Nicobar Islands, though theAdministration had conveyed its consent for introduction of thepre-primary to primary ITEP only fi-om the 2021-2022academic session, applications were invited, by the impugnedPublic Notice, for the said programme, for the 2020-2021academic session.

(ii) In the case of Andhra Pradesh, applications were invitedonly for the pre-primary to primaiy ITEP. This was in

consonance with the response, dated 16"" February, 2019, fromthe Government of Andhra Pradesh to the NCTE, which statedthat the Government of Andhra Pradesh was desirous to haveITEP exelusively for pre-primary as the Government intendedto reeognise pre-primary education sponsored schools.

(iii) No applications were invited from any institution locatedin the Union Territories of Chandigarh, Dadra & Nagar Haveli,Lakshadweep, Puducherry or Daman and Diu, or the States ofChhattisgarh, Goa, Kerala and Himachal Pradesh, as noresponses were reeeived, from these States/Union Territories, tothe eommunieation, dated 14"" January, 2019, from the NCTE,seeking their concurrenee for introduction of the two newITEPs in their territories.

(iv) In the ease of the state of Gujarat, the EdueationDepartment of the State, vide its eommunieation dated 20"'June, 2019, addressed to the NCTE, conveyed the concurrence,of the State Government to be included "in the list of states tobe given permission for the integrated B.Ed. Programme and tostart new integrated B.Ed, (shiksha shastri)" programme. Asthis programme was different from the two new ITEPs, beingstarted by the NCTE, the NCTE responded, to the Governmentof Gujarat, vide letter dated 10'*^ July, 2019, regretting that therequest of the Government of Gujarat could not be consideredas applications had been invited only for the ITEPs covered byAppendices 16 and 17, and there was no clarity, regarding thecourses proposed, vis-a-vis these Appendices.

(v) In respect of the state of Haryana, the response, from theAdditional Director (Admission) in the Directorate of SchoolEducation, the NCTE, suggested that the "4 years IntegratedTeacher Education Programme (Pre-Primary to Primary)(Appendix 16 as per NCTE Amendment Regulation 2018)"could be introduced. Accordingly, the impugned Public Notice,dated 20'*^ May, 2019, invited applications, from institutionslocated in the state of Haryana, only for the pre-primary toprimary ITEP.

(vi) The State of Jharkhand responded, vide its letter dated2E' February, 2019, by opining that, while the two new ITEPswere useful for quality teacher training, it was desirable thatsuch courses be opted by Universities and Degree Colleges.Having so opined, the letter requested the NCTE to "takeappropriate action and furnish comment to NCTE asrequested." The leamed Additional Solicitor General, appearingon behalf of the respondents, submitted that suchcommunications could not be treated as unequivocal, and were,therefore, considered to be rejections, by the NCTE.

(vii) The State of Madhya Pradesh, vide its communicationdated 5'^ July, 2019, conveyed its consent for conducting of thetwo new ITEPs in Science and Humanities in those Universitiesand private colleges in the State, where NCTE programmeswere already being run. However, the NCTE wrote back, on10'*^ July, 2019, regretting that there was little time left for

appropriate institutions to apply and, therefore, requesting theState Government to give consent, for conducting the ITEPs,the next year.

(viii) The State of Manipur, in response to the communicationdated 14"" January, 2019 from the NCTE, responded byforwarding an internal communication, dated 16^'^ January, 2018, from the Director, State Council of Educational Researchand Training in the State of Manipur to the Principal Secretary,SCERT, notifying the intention to start two new courses. Thiscommunication was, obviously, irrelevant to the request of theNCTE, as contained in its letter dated 14"' January, 2019. Noapplications were, therefore, invited, for the two new ITEPs,from institutions located in the State of Manipur.

(ix) The States of Mizoram, Nagaland and West Bengalcommunicated, vide their letters dated 2?"' February, 2019, 31®^January, 2019 and 5'" March, 2019, addressed to the NCTE,conveying their regret in being unable to agree to introductionof the two new ITEPs in the State. No applications were,therefore, invited from institutions in these states, for the twonew ITEPs.

(x) The State of Odisha, vide its undated response, to theNCTE, enlisted four colleges which had applied, in theDepartment of Higher Education in the state, and requested theNCTE "to take appropriate course of action at its end". It isseen that, on the face of the said communication, there is

handwritten endorsement, apparently by an officer of theNCTE, to the effect that the concerned official in theGovernment of Odisha had informed, telephonically, only toinclude Appendix 17 to the 2014 Regulations, and that therequisite information would be sent, in writing, on May,2019. There is, however, nothing further, to indicate whetherany such "information" was, or was not, sent by theGovemment of Odisha; be that as it may, no applications wereinvited, from any institution located in the state of Odisha, forstarting either of the two new ITEPs.

(xi) The State of Punjab, in its response dated 26^^^ April,2019, stated that at least month's time was required, in orderto take decision on the request of the NCTE, in view of theexisting model code of conduct, which had been enforcedpreceding elections. The leamed ASG submits that this, too,could not be treated as consent, on the part of the state ofPunjab, to the introduction of the two new ITEPs in the State.Accordingly, no applications were invited, for introduction ofthe two new ITEPs, in the State of Punjab.

(xii) The State of Rajasthan responded to the communication,dated 14"^ January, 2019, from the NCTE, by way of an Order,dated 6'^ February, 2019, submitting that the two new ITEPswould be sanctioned only in the 64 tehsils enlisted in the tabularstatement attached with the said letter. Accordingly, theimpugned Public Notice dated 20'^ May, 2019 invitedapplications, for commencing the two new ITEPs, only from

institutions located in the said 64 tehsils, in the State ofRajasthan.

(xiii) The State of Telangana conveyed its consent, vide letterdated 30'^ January, 2019 addressed to the NCTE, only forinvitation of applications for the Upper Primary to SecondaryITEP, governed by Appendix 17 to the 2014 Regulations. Accordingly, the impugned Public Notice, dated 20'^^ May, 2019invited applications from institutions located in the State ofTelangana only for the Upper Primary to Secondary ITEP.

(xiv) In the case of the State of Uttar Pradesh, while the HigherEducation Section in the State government conveyed, vide itsletter dated U' June, 2019, its agreement to adopt the two newITEPs, the record reveals that, prior thereto, on 3'^'^ May, 2019,the same authority had conveyed that the power to grant ofNOC for affiliation of new courses vested in the ExecutiveCouncil of the State Universities, established under the UttarPradesh State Universities Act, 1973 and that the said StateUniversities were autonomous institutions, so that there was norole of the State Government in the matter. This somewhatambiguous stand, as adopted by the State of Uttar Pradesh was,apparently, not treated as sufficient to warrant invitation ofapplications, from institutions located in the said State, forstarting the two new ITEPs. The impugned Public Notice, dated20^'^ May, 2019, therefore, does not invite applications from anyinstitution located in the State of Uttar Pradesh, forcommencing either of the said two new courses.

18. In respect of all other States or Union Territories, which had, inthe opinion of the NCTE, expressed unequivocal assent, toeommencement of the said two new ITEPs within their territories, theimpugned Publie Notice dated 20'^ May, 2019 invites applications.

19. We have taken pains to deal with the situation, as it prevailed inrespeet of each of the States, or Union Territories, from institutionslocated wherein no applieations had been invited by the impugnedPublic Notice, in view of grievance, voiced by Mr. Sanjay Sharawat,learned counsel appearing for the petitioners, that, in assessing theresponses received from the various States and Union Territories, tothe communique, dated 14'*' January, 2019, sent by it, the NCTE hadacted arbitrarily. Having carefully analysed the responses from thevarious States and Union Territories - which we have attempted,hereinabove, to paraphrase - we are unable to subscribe to thesubmission, of Mr. Sharawat, that the NCTE did not properlyappreeiate, or act on the basis of, the communieations received fromthe various States and Union Territories. Whether the NCTE was, orwas, not, justified in inviting such communications, before issuing theimpugned Public Notice dated 20^'^ May, 2019, is an aspect which weshall examine by and by; suffice it to state, at this stage, however, thatwe do not find substance in the grievance, of Mr. Sharawat, regardingthe maimer in which the responses, received from the States andUnion Territories, to the communication dated 14^*^ January, 2019,addressed by it, was evaluated and assessed by the NCTE.

Rival Submissions

20. We proceed, now, to record the rival stances, as taken before usby the petitioners, represented by Mr. Sanjay Sharawat and the NCTE,represented by Mr. Sanjay Jain, learned ASG.

Petitioners' submissions

21. Two distinct challenges have been ventilated, by the petitioners,with respect to the two new ITEPs, and invitation of applications frominstitutions thereagainst. The first challenge is directed against Clause1.2 of Appendix 16, and Appendix 17, to the 2014 Regulations, asamended by the 2019 Amendment Regulations, i.e. to the limiting, ofthe right to introduce the said courses/programmes, to universities andhigher education institutions, thereby denying, to all other composite.institutions, . the right to apply for introducing the said courses. Thesecond challenge is with respect to the impugned Public Notice, dated20"" May, 2019, on various grounds. The submissions, advanced byMr. Sharawat, learned counsel appearing for the petitioners may also,therefore, be conveniently segregated, as relatable to the first, or thesecond, challenge.

22. With respect to the confining of the right, to apply for startingthe two new ITEPs, to universities and higher educational institutions,Mr. Sharawat submits thus:

(i) conjoint reading of Regulations 8(1), 2(b) and 3, of the2014 Regulations, revealed that composite institutions werepermitted, thereunder, to apply for starting new courses, andteacher education institutions also fell within the ambit of theexpression "composite institution", as defined therein. Thelimitation, engrafted by Clause 1.2 in Appendices 16 and 17 tothe 2014 Regulations, whereby the right to apply for starting thetwo new ITEPs was restricted to Universities and highereducation institutions, therefore, was contrary to thedispensation as eontained in the main Regulations. Mr.Sharawat submitted that the law did not in anpermit engrafting, Appendix to statutory Regulation, limitation which was notcontained in the Regulation itself. An Appendix to theRegulation, he would submit, cannot dilute the effect of theRegulation itself.

(ii) "Micro-classification", of "composite institutions", bycarving out, from the said class, "universities and highereducation institutions", was violative of Article 14 of theConstitution of India.

(iii) Appendiees 16 and 17 to the 2014 Regulations, asintroduced by the 2019 Amendment Regulations, expresslystipulated that institutions, desirous of running the two newITEPs, were required to have separate faculty therefor. Oneethis requirement had specifically been engrafted in the normsand standards governing institutions, who wished to eonduet the

said ITEPs, there was no reasonable justifieation for excluding,therefrorn, teacher education institutions, and restricting theentitlement, for conducting such courses, to Universities andHigher Education Institutions.

(iv) Mr. Sharawat also pointed out, in this context, that when,by way of Appendix 13 to the 2014 Regulations, similar fouryear B.A. B.Ed/B.Sc. B.Ed, courses were introduced, teachereducation institutions were also made eligible to apply forrunning the said courses.

23. Insofar as the grievance of the petitioners, with respect to theimpugned Public Notice, dated 20^'' May, 2019, is concerned, Mr.Sharawat advances the following submissions:

(i) The decision, of the NCTE, to seek the view of State Governments, and Governments of Union Territories, prior toinviting applications by the impugned Public Notice dated 20^''May, 2019, was contrary to Regulation 7 of the 2014Regulations, which contemplated seeking of therecommendations, from the State Governments, aftersubmission of application by the interested institutions. In fact.Regulation 7 went on to stipulate that, if recommendations,from the State Governments, as invited, were not received intime, the Regional Committee would proceed to process theapplications. The decision to limit invitation of applications, byan priori communication with the State Governments

therefore, amounted to amendment of the statutory Regulationsby executive fiat, which, obviously, is impermissible in law.

(ii) For the same reason, the requirement, in the impugnedPublic Notice dated 20'^^ May, 2019, of the submission ofapplication by the institutions in response thereto, havingnecessarily to be accompanied by formal recommendationfrom the State Govemment, was contrary to Regulation 7 of theNCTE Regulations supra, which contemplated communication,which the State Govemments, by the NCTE, after receivingapplications from institutions interested in commencing theconcemed courses.

(iii) The NCTE had acted in excess of the power vested in itby the NCTE Act and the Regulations framed thereunder, inissuing the impugned Public Notice dated 20^^^ May, 2019,inasmuch as these statutory instruments did not confer, on theNCTE, any power to issue such Public Notice.

(iv) The impugned Public Notice amounted to placingrestrictions, on the fundamental right of the petitioners to runtheir institutions, or start any particular courses therein, vestedby Article 19(l)(g) of the Constitution of India. Suchrestrictions, which could only be justified under Article 19(2),could not be introduced by way of executive instructions.

(v) The limiting of the right to apply to start the two newITEPs, from instiUitions located in the State of Rajasthan, to

those in 64 specified tehsils, amounted to denying, to theinstitutions located outside these 64 tehsils, level playingfield. It was submitted that similar dispensation, as introducedvide an earlier Public Notice, dated 27^^ February, 2015, waschallenged, before this Court, in batch of writ petitions, whichwere allowed vide judgment dated 2^^ February, 2016, of aleamed Single Judge, the lead matter being W.P. (C) 775/2016{Vidha Sudha Welfare Foundation Samiti v. National Councilfor Teacher Education^). The same Public Notice, dated 2?"'February, 2015, it was pointed out, was also challenged beforethe High Court of Madhya Pradesh, in W.P. 19819/2015(Ambition College of Education v. National Council forTeacher Education ^), which was allowed vide judgment dated28'*^ January, 2016, the Special Leave Petition against whichdecision was also dismissed by the Supreme Court, vide orderdated April, 2019. Reliance was also placed, by Mr.Sharawat, on the judgment, of leamed Single Judge of theHigh Court of Madras in W.P. 3236/2010 {Senthil EducationSociety v. Member Secretary, NCTE), which, too, challenged asimilar Public Notice, dated 28^'^ July, 2009, which restrictedinvitation of applications on the basis of ban imposed by certainState Govemments, and was allowed by the High Court ofMadras, vide judgment dated 4'*^ March, 2011.

(vi) The power to seek recommendations, from the StateGovemment was, under the 2014 Regulations, with the

Regional Committees. The NCTE could not, therefore, exercisesuch power.

(vii) Applying the doctrine facit cessare taciturn, onceRegulation 7 of the 2014 Regulations contained an expressprovision for consultation, with the concerned StateGovernments after receipt of applications, such consultation,prior to inviting applications, necessarily stood foreclosed.

(viii) The right of the petitioners, to submit applications tocommence the two new ITEPs, in their respective institutions,emanated from the provisions of the NCTE Act and theapplicable Rules and Regulations, and could not be divested bymeans of the impugned Public Notice.

(ix) As held by the Supreme Court in State of MaharashtraV. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya , theNCTE Act was referable to Entry 66 in List I of the 7'^'Schedule to the Constitution of India. In applying andimplementing the provisions of the NCTE Act or theRegulations framed thereunder, therefore, the CentralGovernment could not allow itself to be inhibited by the viewsexpressed by the respective State Governments.

(x) Reliance was also placed, by Mr. Sharawat, on para 62 ofthe report in Sant Dnyaneshwar Shikshan ShastraMahavidyalaya^ to contend that the right of his clients could notthe report in Sant Dnyaneshwar Shikshan ShastraMahavidyalaya^ to contend that the right of his clients could not

be curtailed by the impugned Public Notice, contrary to theprovisions of the NCTE Act and Regulations.

(xi) Mr. Sharawat also pointed out that, had Regulation 7 ofthe 2014 Regulations, and the provisions thereof, beenscrupulously followed by the NCTE, the petitioners would havehad an opportunity to challenge any adverse recommendation,of the State Government, by way of appeal to the appellateauthority. The act of the NCTE in not inviting applications,from States or Union Territories, effectively eviscerated theright of institutions, located in "excluded" States, or tehsils,from challenging the decision to exclude them. By way ofillustration of the prejudice caused on this count, Mr. Sharawatrefers to the Order, dated 6"' February, 2019, issued by theDepartment of Higher Education, Government of Rajasthan, onthe basis whereof, in the impugned Public Notice dated 20'*^May, 2019, applications were invited only from institutionslocated in 64 tehsils. In order to understand Mr. Sharawat'scontention, it is necessary to reproduce the relevant portion ofthe aforesaid Order, dated 6''^ February, 2019, issued by theDepartment of Higher Education, Government of Rajasthan,thus:

"Government of RajasthanDepartment of Higher Education

F. 10 (4) Edu-4/2008 Part

Date: 06 Feb 2019

Order

State Government's policy for grantingNOC/recommendation to NCTE for establishing new teachereducation colleges/opening new prograrmne/increase in seatsin the ongoing approved programmes for session 2020-21shall be as under; -

Note: if NCTE introduces the new teacher trainingprogrammeITEP (Integrated Teacher Education

Programme) and bands the B.Ed, and foyers integratedprogramme, then the new ITEP Programme would besanctioned in the aforesaid 64 tehsils only."

(Emphasis supplied)

Pointing out that the course/programme referred to at S. No. 8of the table in the afore-extracted Order dated 6^'^ February, 2019, was the pre-existing course, commenced in 2014, Mr.Sharawat submits that, had the aforesaid decision of theDepartment of Higher Education, Govemment of Rajasthanbeen obtained in accordance with the procedure prescribed inRegulation 7 of the 2014 Regulations, his client would have hadan opportunity to point out that he had, in fact, been running theBA-B.Ed. course since 2018, thereby resulting in the inclusion,in the list of tehsils from which applications were invited, of thetehsil in which his client was located. Mr. Sharawat points out that, therefore, as result of the skewed procedure, followed bythe NCTE, in communicating with the State Govemment beforeinviting applications vide the impugned Public Notice, theNCTE acted on the basis of flawed data, which the affectedinstitutions had no opportunity to controvert. In this context,Mr. Sharawat placed reliance on paras 13, 62, 63 and 66 of thejudgment of the Supreme Court in Sant DnyaneshwarShikshan Shastra Mahavidyalaya^.

(xii) Section 12 of the NCTE Act set out the "Functions" ofthe NCTE, whereas Section 14 specifically deals withrecognition of Institutions, offering course or training in teacher

MsS

education. Sub-section (1) of Section 14 required everyinstitution, intending to offer course or training in teachereducation to, for grant of recognition under the NCTE Act,make an application to the concerned Regional Committee, andsub-section (3) requires the concemed Regional Committee to,on receipt of such application, and after obtaining necessaryparticulars from the institution, pass an order grantingrecognition to the institution, if it was satisfied that theinstitution had adequate financial resources, accommodation,library, qualified staff, laboratory and fulfilled such otherconditions as were required for proper functioning of theinstitution for course or training in teacher education. Thiswas made subject only to conditions to be determined by theRegulations to be framed under the NCTE Act. Mr. Sharawatcontended that, applying the principle generalia specialibus nonderogant, the scope and ambit of Section 14 of the NCTE Actcould not be whittled down by premature recourse toobtaining of the views of the respective State Governments,which exercise would be relatable to Section 12. To bring homethe contention that specialised provisions, under the NCTE Act,had to give way to general provisions, Mr. Sharawat sought toplace reliance on paragraphs 4, 5 and 32 of the report inNational Council for Teacher Education v. Vaishnav Instituteof Technology and Management*.

24. Mr. Sharawat conceded, however, that he was not seeking tochallenge the merits of the decisions of the Governments of theindividual States or Union Territories.

25. Mr. Sharawat placed reliance on the following decisions, apartfrom those already mentioned herein above:from those already mentioned herein above:

(i) Government of Andhra Pradesh v. P. Laxmi Devf(paras 33 to 35),(paras 33 to 35),

(ii) Ramchandra Keshav Adke v. Govind Joti Chavare,(1975) 1 see 559'(^2ir2i25l(1975) 1 see 559'(^2ir2i25l

(iii) Babu Verghese v. Bar eouncil of Kerala^(pavas 31 and

(iv) eaptain Ganpati Singhji v. State ofAjmer^,

(v) Shrimati Hira Devi v. District Board, Shahjahanpur\

(vi) Sub-Divisional Officer, Sadar v. ShambhooNarainSingh^^,Singh^^,

(vii) Birla Higher Secondary School v. Lt Governor",

(viii) ehief Settlement Gommissioner, RehabilitationDepartment, Punjab v. Dm Prakash",Department, Punjab v. Dm Prakash",

(ix) Patna Improvement Trust v. Smt. Lakshmi Devi",

(x) State ofRajasthan v. LBS B.Ed. Gollege" and

' (2008) 4 SCO 720'(1975) I SCO559'(1999) 3 see 422' 1955 (l)SeR1065' 1952 SeRlI22 at 1130'"(1969) I see 825"ILR 1973 (l)Del 634" 1968(3) SeR655" 1963 Supp(2) SeR812"(2016) 16 see 110

(xi) Thirumuruga Kimpananda Variyar ThavathiruSundara Swamigal Medical Education and CharitableTrust V. State of Tamil Nadu^\

NCTE's Submissions

26. Arguing per contra, Mr. Sanjay Jain, learned ASG, advancesthe following contentions:

(i) Re. Challenge to Clause 1.2 of Annendices 16 and 17 tothe 2014 Regulations:

(a) All composite institutions were not universities, ordegree colleges. These institutions could not be treated atpar. The decision, of the NCTE, to restrict entitlement, inthe manner of conducting the two new ITEPs, toUniversities and higher education colleges, was based onthe perception that these institutions would be betterequipped to handle the two new courses.

(b) This decision was also based on Clause 4 ofChapter 7, containing the "Summary ofRecommendations" of the Justice J. S. VermaCommission, the recommendations whereof had beenmade binding, on the NCTE, by virtue of the orderspassed by the Supreme Court in Rashtrasant T. M. S. &

'=(1996)3 SCC15

S. B. V. M. C. A. Vid. v. Gangadar Nilkant Shende^^,which read thus;

"It is desirable that new Teacher EducationInstitutions are located in multi-and interdisciplinary academic environment. This willhave significant implications for the redesigningof norms and standards of various TeacherEducation courses specified by the NCTE. Thiswill also have implications for employment andcareer progression of prospective teachers.Existing teacher education institutions may beencouraged to take necessary steps towardsattaining academic parity with the newinstitutions."

(c) Regulation 9 of the 2014 Regulations requiredevery institution, offering the programme as shown in theTable thereunder, to comply with the norms andstandards prescribed in Appendices I to 17 to the saidRegulations. Inasmuch as the petitioners did not fulfillthe eriteria specified in Clause 1.2 of Appendices 16 and17, they were not entitled to apply for permission to start the two new ITEPs.

(d) Section 32 of the NCTE Aet conferred unfetteredpower, to the NCTE, to make or amend Regulations.

(e) Clause 1.2 of Appendices 16 and 17 to the 2014Regulations constituted reasonable restrietions, underArticle 19(6) of the Constitution of India, whieh had arational nexus to the object sought to be achieved

thereby, which was safeguarding of the interests of thestudents, teachers and the educational institution itself.

(^0 Re. Challenge to Public Notice dated 20"" Mav. 2019:

(a) The States and Union Territories being vitalstakeholders in the exercise of starting of the two newITEPs, within their respective geographical territories,the NCTE did not deem it appropriate to inviteapplications, for starting the said two new ITEPs, frominstitutions located in the states, or in the regions, wherethe concerned State Governments were unwilling tocommence the said courses. Reliance has been placed, forthis proposition, on Modern Dental College andResearch Centre v. State ofMadhya Pradesh^^.

(b) Excluding certain States, or certain districts, fromthe ambit of the impugned Public Notice dated 20^'' May,2019, was founded on the logic that it was inadvisable toallow muslirooming of teacher educational institutions inone particular tehsil or in one particular State. The StateGovernment being the best judge in that regard, aconscious decision, to keep the respective StateGovemments in the loop, before inviting applications forstarting the said courses, was taken.

(c) The Supreme Court had, in its judgment inJawaharlal Nehru Technological University RegistrarV. Sangam Laxmi Bai Vidyapeet^^ , held that the StateGovemment/University had the power to refuse grant ofNOG to start course in Pharmacy in the city ofHyderabad. The rationale for the said decision, whichwas that there were already several institutions impartingeducation in the area, was found to be justified, by theSupreme Court.

(d) The contention, of the petitioner, that the direction,in, the impugned Public Notice, to applicant institutions,to submit, with their applications, formalrecommendation of the concemed State Government,was ultra vires to the 2014 Regulations, was alsomisconceived. Regulation 5 of the 2014 Regulationsnever restricted the documents, which could be requiredto be submitted, along with the online application.

(e) Requiring the formal recommendation, from theconcemed State Govemment was akin to therequirement, of the Medical Council of India, for an"Essentiality Certificate" from the concemed StateGovemment, from applicants intending to open medicalcolleges. The insistence, of the MCI, on the production ofsuch an "essentiality certificate", had been upheld by theSupreme Court in Chintpurni Medical College and

'(2018)5SCC1

Hospital V. State of Punjab^^. Moreover, thisrequirement, too, was based on the perceivedmadvisability of allowing mushrooming of educationalinstitutions in particular State or area.

(f) Section 12 of the NCTE Act obligated the NCTEto take all steps, as it thought fit, for ensuring plannedand co-ordinated development of teacher education andfor the determination and maintenance of standards forteacher education, as well as for the purposes ofperforming its functions under the NCTE Act. Clause (f),in the said Section required the NCTE to "lay downguidelines for compliance by recognised institutions, forstarting new courses or training, and for providingphysical and instructional facilities, staffing pattern andstaff qualification". If, therefore, before invitingapplications from institutions which desired to start thetwo new ITEPs, the NCTE thought it appropriate tosolicit the views of the concerned Governments of theStates and Union Territories, it was only acting infurtherance of Section 12 of the NCTE Act, and inexercise of the duty cast on it thereby.

(g) Education was State subject and, therefore, thedecision of the State Government, regarding theadvisability, or otherwise, of opening an institution of

'(2012) 2 see 425

higher education, within its territory, had to be accordedprimacy.

(h) The NCTE was only regulator. The two newITEPs had necessarily to be at place where it waspossible to have multidisciplinary teaching. Thepetitioner institutions were conducting teacher trainingcourses with bare minimum facilities, and it was doubtful whether they would be in position to conduct courseof the magnitude of the two new ITEPs. The decision torestrict the States, or areas, from which applications wereinvited, for commencing the said two new ITEPs was,therefore, conscious policy decision, which was notvitiated by arbitrariness of any kind, and was based onthe inputs received from the concemed StateGovernments. Reliance was placed, by the leamed ASG,in this context, on Adarsh Shiksha Mahavidyalaya v.Subhash Rahangdale^^, and an order, dated 10*September, 2013, of the Supreme Court in RashtrasantT. M. S. & S. B. V. M. C. A. Vid. v. GangadarNilkantShende^^.

(i) Section 12 of the NCTE Act empowered theNCTE to make recommendations to the Central and Stategovemments, in the matter of programmes for teachereducation. The exercise of obtaining the priorconcurrence, of the respective State Govemments, or

Union Territories, before inviting applications for the twonew ITEPs, as well as the issuance of the impugnedPublic Notice dated 20"' May, 2019, itself, were relatableto the power vested in the NCTE by clauses (c), (f) andG) of Section 12 of the NCTE Act.

(j) The NCTE was not required to be vested with anyspecific power, in order to be competent to issue theimpugned Public Notice dated 20"^ May, 2019. Issuanceof Public Notices were an integral part of any regulatoryregime, and did not require any specific enablingprovision. By issuing such Public Notice, transparency,and outreach to the maximum number of persons, wasachieved. Moreover, the power to issue the impugnedPublic Notice could also be related to the power toprescribe norms and standards, which was, in any case,statutorily vested in the NCTE.

(k) The reference, by the petitioners, to the fact thatthe NCTE Act had been enacted under Entry 66 of List Iof the 7'^^ Schedule to the Constitution of India, could notadvance the case of the petitioner to any extent, as thedistribution of subjects, amongst the various lists in the7'^^ Schedule was relatable to Article 246 of theConstitution of India, which merely enabled theParliament to legislate in any field in respect of which theState could also legislate. Moreover, in jRa/ Sahib Ram

Jawaya Kapur v. State of Punjab^^, it had been held thatthe executive power of the state was co-extensive with itslegislative power. Merely, therefore, because the NCTEAct had been enacted by Parliament, State Governmentswere not denuded of the power to exercise executivefunctions, with respect to the subject matter of the NCTEAct. Ultimately, education was the responsibility of the ^State Government which was, therefore, an indispensablestakeholder in the exercise. Reference was also invited,in this context, to para 149 in Modern Dental College^^.

27. Consequently, argues the learned ASG, the submissions of thepetitioners, being devoid of merit, deserved to be rejected.

Analysis

28. We proceed to deal with the two challenges, as ventilated in these writ petitions by the petitioners, individually and seriatim.

Re. Challenge to Clause 1.2 of Appendices 16 and 17 of the 2014Regulations

29. In order to appreciate this challenge, it is necessary to chart,first, the genesis of the 2014 Regulations, which owe their origin, in amanner, to the Verma Commission Report.

30. The pre-existing National Council for Teacher Education(Recognition Norms and Procedure) Regulations, 2009 were replacedby the 2014 Regulations, which came into effect on 28"^ November,2014. The genesis of the dispute, which led to the necessity forreplacing the 2009 Regulations, is to be found in decision, taken bythe Western Regional Committee (WRC) of the NCTE, during its104"^ to 109"' meetings, held in 2008, in which the WRC grantedrecognition to 291 colleges, situated in the State of Maharashtra, forstarting the Diploma in Education (D.Ed.) programme, despite therecommendations, of the Government of Maharashtra, to the contrary.The Government of Maharashtra had clearly stated that it did notrequire more D.Ed, institutions, owing to want of job opportunities forstudents who graduated from such institutions. The decision of theWRC was challenged, by way of public interest litigation, whichcame before the bench of the Court of up Nagpur High Bombaywhich, vide its order dated 7'" January 2009, quashed the decision ofthe WRC. The matter was carried, by the Colleges, before theSupreme Court by way of SLP (C) 4247-4248/2009 {Rashtmsant T.M. S. 4& S. B. V. M. C. A. Vid. v. Gangadar Nilkant Shende^^).During the said proceedings, vide order dated 13"' May, 2011, theSupreme Court approved the Constitution of Commission, headedby Hon'ble Mr. Justice J. S. Verma, former Chief Justice of India(hereinafter referred to as "the Verma Commission"), to examine thevarious contentious issues arising in the context of teacher education,especially in the context of the Right of Children to Free andCompulsory Education Act, 2009. Among the terms of reference of

the Verma Commission, as approved by the Supreme Court on 13*

May, 2011, were the following:

"a) Whether in the context of the provisions of the Right ofChildren to Free and Compulsory Education Act, 2009, theRegulations on Recognition Norms and Procedure that laydown the norms and procedure for various teacher educationcourses which are adopted by the NCTE are adequate or needreview.

b) Wliether further reforms are necessary to improvequality of teacher training and in-surface training.

c) To review whether the Regulations on RecognitionNonns and Procedure, currently in force as laid down by theNCTE are being properly enforced. If not, how to evolve afair and transparent manner in which these norms andstandards may be enforced.

g) To determine what the methodology should be toexamine/enforce quality in teacher training institutions."

31. The report of the Verma Commission was filed, before the Supreme Court, in SLP (C) 4247-4248/2009 supra which, vide itsorder dated 10* October, 2012, noted that it had carefully gonethrough the recommendations of the Verma Commission and were "ofthe view that the same deserves to be accepted". The followingpassages, from the order, dated 10* October, 2012, of the SupremeCourt, merit reproduction:

The leamed Solicitor General pointed out that the High-Powered Commission appointed pursuant to the directionsgiven by the Court has submitted its report in three volumes.The report of the Commission has been taken on record.

eoA

We have carefully gone through the recommendationsmade by the Commission and are of the view that the samedeserves to be accepted.

With view to enable the Government of India andNCTE to indicate the steps proposed to be taken forimplementation of the recommendations made by theCommission, we deem it proper to adjourn the case for twomonths within which affidavits of the competent authoritiesbe filed on the issue of implementation of therecommendations of the Commission."

(Emphasis supplied)

32. In its subsequent order, dated 29*^' January, 2013, the SupremeCourt opined that it was "in the interest of the society in general andthe students community in particular that time bound schedule isframed by the Government and the NCTE for implementation of therecommendations made by the Committee headed by Hon'ble Sh.Justice J. S. Verma (Former Chief Justice of India)." Again, in orderdated 28^'^ February, 2013, the Supreme Court required the CentralGovernment to file another affidavit, clearly specifying the concretesteps already taken for implementation of the recommendations madeby the Verma Commission. Thereafter, on 3^^^ May, 2013, theSupreme Court opined that small group, from the members of theVerma Commission, could be requested to supervise theimplementation of the recommendations of the Commission. Actingon the said direction, the Central Government constituted sub-group,comprising four members of the Verma Commission, to monitor theprogress, in the matter of implementation of the recommendations ofthe Verma Commission and to report, to the Supreme Court, with

respect thereto. This action was appreciated by the Supreme Court, inits order dated 6'*^ August, 2013, which went on to direct thus.

"In order to facilitate further implementation of the report ofthe Venna Commission, we direct that the recommendationswhich may be made by the sub-Group shall be binding on theGovernment of India and the Governments of all the Statesand Union Territories as also NCTE and University GrantsCommission and all of them shall implement the samewithout any objection and without modifying the same."

33. The aforesaid sub-Group was designated, by the Supreme-Court, vide its subsequent order dated 10'*^ September, 2013 -wherewith the proceedings in SLP (C) 4247-4248/2009 were closed as the "Implementation Committee". The Supreme Court reiterated, inthe said order, its earlier mandate that the recommendations of theImplementation Committee would be binding on all States, UnionTerritories, the Central Government, the NCTE and the UGC, whowould be bound to implement the same without reservation ormodification. The following passages, from the order dated 10^''September, 2013, are relevant:

One of the recommendations made by theImplementation Committee is the revision of the regulationsframed by NCTE.

With view to ensure that there is no furthercomplication in the matter of grant of recognition forestablishment of new Teacher Training Colleges/Institutionsand permission to the existing Colleges/Institutions to run theTeacher Training Courses, we direct the concerned authoritiesincluding the NCTE to notify the new regulations latest by30.11.2013.

We also reiterate the direction given earlier and makeit clear that all the recommendations made by theImplementation Committee shall be binding on the

Government of India, the Governments of all the States andthe administration of Union Territories as also NCTE andUniversity Grants Commission and all of them shallimplement the same without any objection and withoutmodifying the same.

With the above direction, the proceedings of thesepetitions are closed and the special leave petitions aredisposed of."

34. Consequent on the above directions of the Supreme Court, the2014 Regulations came to be promulgated, superseding the existing2009 Regulations.

35. Clearly, it would not be open to any Court to question thewisdom of any provision, in the 2014 Regulations, or in anyamendment effected to the said Regulations, which is in line with, orfurthers, any of the recommendations of the Verma Commission. Therecommendations of the Verma Commission, having been sanctifiedby the imprimatur of the Supreme Court, were binding on the NCTE,and are also binding on every judicial authority, hierarchically belowthe Supreme Court.

36. Among the recommendations of the Verma Commission, wasthe recommendation (already extracted in para 33 ibid) that newTeacher Education Institutions ought to be located in multi-and interdisciplinary academic environments. This recommendation, inter alia,has been held, by the Supreme Court, to be worthy of implicitacceptance and implementation. In that view of the matter, thewisdom of the decision, to introduce, by the 2019 Amendment

Regulations, the said requirement, as one of the norms and standardsto be followed, by institutions seeking to run the two new ITEPs, isnot open to examination by this Court.

37. It has been sought to be contended by the petitioners, throughMr. Sharawat, that this requirement, as contained in Clause 1.2 inAppendices 16 and 17 to the 2014 Regulations, divested compositeinstitutions, such as the petitioners, of the right to apply for starting the two new ITEPs, which right was, otherwise, available to themunder the 2014 Regulations. Juxtaposed with this submission, Mr.Sharawat would contend that an Appendix to Regulation could notdivest right vested by the Regulation itself.

38. The submission, needless to say, proceeds on presumptionthat the 2014 Regulations conferred, on every composite institution, aright to run every course, or programme, governed by the Regulations.

39. The petitioners base this submission on clause (a) of Regulation3, and on Regulation 8(1) of the 2014 Regulations. Regulation 3, withclause (a) thereof, may be reproduced, once again, as under:

"3. Applicability.

These regulations shall be applicable to allmatters relating to teacher educationprogrammes for preparing norms and standardsand procedures for recognition of institutions,commencement of new programmes andaddition to sanctioned intake in the existing-programmes including the following, namely:

(a) recognition for commencement of newteacher education programmes which shall beoffered in composite institutions'"

(Emphasis supplied)

40. Having carefully read Regulation 3, and clause (a) therein, weare not persuaded to aecept the submission, of Mr. Sharawat, that thiselause conferred any absolute right, on every eomposite institution, tobe entitled to run every eourse enumerated in Regulation 9.Regulation 3 is provision which delineates the applicability of the2014 Regulations. In other words, it charts the boundaries andparameters, within which the 2014 Regulations would apply. barereading of Regulation 3 reveals that the 2014 Regulations are, bymeans of the said Regulation 3, made applicable to all matters relatingto teacher education programmes for preparing norms and standardsand proeedures for regulation of institutions, commencement of newprogrammes and addition to sanctioned intake in existingprogrammes, including the situations contemplated by clauses (a) to(e) thereunder, i.e. (a) recognition for commencement of new teachereducation programmes which shall be offered in compositeinstitutions, (b) permission for introduction of new programmes inexisting teacher in education institutions duly recognised by theNCTE, (c) permission for additional intake in existing teachereducation programmes duly recognised by the NCTE, (d) permissionfor shifting or relocating of premises of existing teacher edueationinstitutions and (e) permission for elosure or discontinuation ofrecognised teacher education programmes or institutions, as the casemay be. These five elauses (a) to (e) merely set out five aspects, to

which the 2014 Regulations would apply. One of the said aspects is,undoubtedly, recognition for commencement of new teachereducation programmes which shall be offered in compositeinstitutions. This, however, only means that new teacher educationprogrammes, offered in composite institutions, would be one of theaspects to which the 2014 Regulations would apply. It cannot beextrapolated to mean that every composite institution is entitled toconduct, or run, every new teacher education programme.

41. Adverting, now, to Regulation 8 (1) of the 2014 Regulations, itis seen that the said sub-Regulation reads thus:

"New Teacher Education Institutions shall be located incomposite institutions and the existing teacher educationinstitutions shall continue to function as stand-aloneinstitutions; and gradually move towards becoming compositeinstitutions."

42. We are unable to understand how the petitioners seek to deriveany right, qua the cause of action ventilated in these proceedings, fromthis sub-Regulation. Regulation 8(1) deals, in the first place, with"new teacher education institutions". None of the petitioners is "newteacher education institution". Nor is Clause 1.2, in Appendices 16,and 17, to the 2014 Regulations, restricted to "new teacher educationinstitutions". The Public Notice, dated 20"' May, 2019, too, does notinvite applications only from "new teacher education institutions". Assuch. Regulation 8(1) of the 2014 Regulations, which stipulates thatnew teacher education institutions shall be located in compositeinstitutions, does not carry the case of the petitioner further, to anyappreciable degree.

43. Moreover, "composite institution" is defined, in clause (b) ofRegulation 2 of the 2014 Regulations as meaning "a duly recognisedhigher education institution offering undergraduate or postgraduateprogrammes of study in the field of liberal arts or humanities or socialsciences or sciences, commerce or mathematics, as the case may be, atthe time of applying for recognition of teacher education programmes,or an institution offering multiple teacher education programmes".The petitioners, quite obviously, seek to come within the ambit of thisdefinition by means of the latter part thereof, which covers"institutions offering multiple teacher education programmes". Therespondents, to be fair, do not dispute the fact that the petitioner-institutions are, indeed, "composite institutions". That fact, in ourview, cannot, in any case, be disputed, as it is matter of record thatthe petitioner-institutions do, indeed, offer multiple teacher educationprogrammes.

44. Institutions offering multiple teacher education programmesare, however, not the only categories of institutions, which are eligibleto be treated as "composite institutions", within the meaning of clause(b) of Regulation 2. Any duly recognised higher education institution,offering undergraduate or postgraduate programmes of study in thefield of liberal arts of humanities or social sciences or sciences orcommerce or mathematics, is, by definition, "composite institution".The impugned Clause 1.2, in Appendices 16 and 17 to the 2014Regulations refers to "duly recognised higher education institutionsoffering undergraduate or postgraduate programmes of study in the

field of liberal arts of humanities or social sciences or sciences orcommerce or mathematics as the case may be". The Clause, therefore,merely borrows the words of Regulation 2(b), which defines"composite institution". All institutions, which conform to thestipulations contained in Clause 1.2 of Appendices 16 and 17 would,therefore, be "composite institutions", within the meaning of clause(b) of Regulation 2 of the 2014 Regulations. Clause 1.2 of Appendices16 and 17 to the 2014 Regulations, as introduced by the 2014Amendment Regulations, therefore, also invites applications onlyfrom composite institutions, though they are composite institutionswhich fall within the first part of the definition of "compositeinstitution", as contained in Regulation 2(b), and not institutions, suchas the petitioners, who fall within the second part of the saiddefinition. So long as the institutions, which conform to Clause 1.2 ofAppendices 16 and 17 to the 2014 Regulations, are "compositeinstitutions", it cannot be said that Clause 1.2 of the said Appendicesdetracts, in any manner, from Regulation 8(1). Regulation 8(1) merely ^states that new teacher education institutions would be located incomposite institutions. Clause 1.2, too, invites applications only fromcomposite institutions. The contention, of Mr. Sharawat, that Clause1.2 of Appendices 16 and 17, falls foul of Regulation 8(1) is,therefore, devoid of substance.45. The basic premise, of Mr. Sharawat, that, merely by virtue oftheir being "composite institutions", as defined in Regulation 2(b) ofthe 2014 Regulations, right vested, in his clients, to run, or conduct,that new ITEPs, is, therefore, itself fundamentally misconceived. In

our view, no right vests, in any "composite institution", merely byvirtue of its being one, to conduct, or run, any particular teachereducation course. If, therefore, additional requirements areincorporated, in the norms and standards applicable to any one, ormore, of such courses, which may result in any particular compositeinstitution, not being in position to conduct such course or courses, iteamiot be said that, thereby, any vested right has been divested. Norcan it be said that, by doing so, the norms and standards, as containedin the Appendices to the 2014 Regulations, fall foul of any provisionin the Regulations themselves.

46. The following passages, from All India Council for TechnicalEducation v. Surinder Kumar Dhawan - which involved achallenge to the denial, by the All India Council for TechnicalEducation (AICTE), to the YMCA Institute of Engineering,Faridabad, of permission to start bridge course - guide us, in theview we are taking:

"14. There is considerable force in the submission of theappellant. Having regard to clauses (i) and {k) of Section 10 ofthe All India Council for Technical Education Act, 1987 ("theAct", for short), it is the function ofAlCTEto consider andgrant approval for introduction of any new course orprogramme in consultation with the agencies concerned, andto lay down the norms and standards for any course includingcurricula, instructions, assessment and examinations.

15. The decision whether bridge course should bepermitted as programme for enabling diploma-holders tosecure engineering degree, and if permitted, what should bethe norms and standards in regard to entry qualification,content of course instructions and manner of assessing theperformance by examinations, are all decisions in academic

'■(2009) 11 sec 726

matters of technical nature. AlCTE consists of professionaland technical experts in the field of education qualified andequipped to decide on those issues. In fact, statutory duty iscast on them to decide these matters.

16. The courts are neither equipped nor have theacademic or technical background to substitute themselves inplace of statutory professional technical bodies and takedecisions in academic matters involving standards andquality of technical education. If the courts start entertainingpetitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, orbecause they think that one course is equal to another,without realising the repercussions on the field of technicaleducation in general, it will lead to chaos in education anddeterioration in standards of education.

17. The role of statutory expert bodies on education andthe role of courts are well defined by simple rule. If it is aquestion of educational policy or an issue involving academicmatter, the courts keep their hands off. If any provision of lawor principle of law has to be interpreted, applied or enforced,with reference to or connected with education, the courts willstep in. In/.P. Kulshrestha (Dr.) v. AllahabadUniversity,(1980) 3 SCC 418 this Court observed; (SCC pp.424 & 426, paras 11 & 17)

"11. ... Judges must not rush in where eveneducationists fear to tread. ...

17. ... While there is no absolute ban, it is rule ofprudence that courts should hesitate to dislodgedecisions of academic bodies."

22. The decision of AlCTE not to permit bridge courses fordiploma-holders and its decision not to permit those who havepassed 10+1 examinations (instead of 10+2 examination) totake the bridge course relate to technical education policywhich falls within their exclusive jurisdiction. Courts will notinterfere in matters of policy.

23. This Court in Directorate of Film Festivals v. GauravAshwin Jain, (2007) 4 SCC 737 pointed out: (SCO p. 746,para 16)

"16. ... Courts do not and cannot act as appellateauthorities examining the correctness, suitability andappropriateness of policy, nor are courts advisors tothe executive on matters of policy which the executiveis entitled to formulate. The scope of judicial reviewwhen examining policy of the Government is tocheck whether it violates the fundamental rights of thecitizens or is opposed to the provisions of theConstitution, or opposed to any statutory provision ormanifestly arbitrary. Courts cannot interfere withpolicy either on the ground that it is erroneous or onthe ground that better, fairer or wiser alternative isavailable. Legality of the policy, and not the wisdomor soundness of the policy, is the subject of judicialreview...."

The above observations will apply with added vigour to thefield of education.

31. These being educational issues, they cannot beinterfered with, merely because the court thought otherwise.If Aicte was of the view that only those diploma-holderswith 10+2 (with PCM subjects) should be permitted toupgrade their qualification by an ad hoc bridge course or thatsuch bridge course should not be regular or permanentfeature, there is no reason to interfere with such decision.The courts cannot by their orders create courses, nor permitcontinuance of courses which were not created in accordancewith law, or lower the minimum qualifications prescribed foradmissions. The High Court's decision to permit candidateswho have completed 10+1 plus four-years' post diplomacourse to take the bridge course cannot be sustained.

32. This is classic case where an educational course hasbeen created and continued merely by the fiat of the court,without any prior statutory or academic evaluation orassessment or acceptance. Granting approval for newcourse or programme requires examination of various

academic/technical facets which can only be done by anexpert body likeAlCTE. This function cannot obviously betaken over or discharged by courts. In this case, for example,by mandamus of the court, bridge course was permittedfor four-year advance diploma-holders who had passed theentry-level examination of 10+2 with PCM subjects.Thereafter, by another mandamus in another case, what was aone-time measure was extended for several years and wasalso extended to post diploma-holders. Again by anothermandamus, it was extended to those who had passed only10+1 examination instead of the required minimum of 10+2examination. Each direction was obviously intended to giverelief to students who wanted to better their career prospects,purely as an ad hoc measure. But together they lead to anunintended dilution of educational standards, adverselyaffecting the standards and quality of engineering degreecourses. Courts should guard against such forays in the fieldof education."

(Emphasis supplied)

47. The challenge, of the petitioners, to the impugned Clauses 1.2in Appendices 16 and 17 to the 2014 Regulations, as introduced bythe 2019 Amendment Regulations, therefore, fails.

Re. challenge to Public Notice dated 20^*^ Mav. 2019

48. We advert, now, to the second challenge of the petitioner,which is directed against the Public Notice, dated 20^*^ May, 2019,issued by the NCTE.

49. The main contention of Mr. Sharawat, in impugning the saidPublic Notice, is that the obtaining of comments from the individualState Governments/Union Territories, by the NCTE, before invitingapplications for the two new ITEPs, and, on the basis thereof, limiting

such invitation to institutions located in certain specified States or, inthe case of the State of Rajasthan, certain specific tehsils, infractedRegulation 7 of the 2000 Regulations, and the scheme containedtherein. Mr. Sharawat points out that very clear, and self-contained,scheme is to be found in Regulation 7, which, read with Regulation 5contemplates,

(i) in the first instance, application, by an institutiondesirous of running teacher education programme, to theconcerned Regional Committee, along with processing fee andrequisite documents [Regulation 5(1)],

(ii) rejection, by the NCTE, of applications which areincomplete, along with forfeiture of the application fee[Regulation 7(1)],

(iii) summary rejection of the application, in the case of (a)failure to fumish the application fee or (b) failure to submitprint out of the applications made online along with therequired land documents, within 15 days of submission of theonline application [Regulation 7(2)],

(iv) passing of an order of refusal of recognition, after issuingshow cause notice to the institution, in any case in which theapplication is found to contain false information or to concealany facts, which may have bearing on the decision-makingprocess [Regulation 7(3)],

(v) sending, of written communication, along with copyof the application forms submitted by the institution, by theconcerned Regional Committee to the State Govemment oradministration of Union Territory, as well as the affiliatingbody concerned, within 30 days of receipt of the application, inchronological order of such receipt [Regulation 7(4)],

(vi) furnishing, by the concerned State Govemment or UnionTerritory administration, of its recommendations or commentsto the concemed Regional Committee, within 45 days of thedate of issue of the aforesaid letter, to the State Govemment orUnion territory, as the ease may be, with the specific rider that,in case the State Govemment or Union Territory Administrationis not in favour of recognition, it shall provide detailed reasonsor grounds thereof with necessary statistics, which shall betaken into consideration by the concemed Regional Committeewhile disposing of the application [Regulation 7(5)],

(vii) in case the recommendation of the State Govemment isnot received within the aforesaid period, sending, of reminder,providing further time of 30 days, to the State Govemment, tofumish their comments on the proposal [Regulation 7 (6)],

(viii) in case no reply, from the State Govemment is receivedeven thereafter, sending, of second reminder, to the StateGovemment for flimishing its recommendation, within 15 days[Regulation 7(6)], and

(ix) in case no reply is received from the State Governmenteven within the said extended period, processing and decidingof the application of the institution, by the Regional Committeeon merits, without waiting, any further, for comments orrecommendation of the State Government [Regulation 7 (7)].

50. This, Mr. Sharawat submits, is the sanctified statutory scheme,and the NCTE could not depart therefrom. By communicating, inadvance, with the State Governments and Union Territories, thepetitioners complained that the NCTE effectively jettisoned theprocedure prescribed in sub-regulations (4) to (7) of Regulation 7 ofthe 2014 Regulations or, at any event, redueed the application of thesaid sub-regulations to foraiality. Mr. Sharawat submits that the2014 Regulations did not contemplate limiting invitation ofapplications, for the new ITEPs - or, for that matter, for any newcourse - from institutions which otherwise satisfied the norms andstandards stipulated in the Appendices to the 2014 Regulations,merely on account of their geographical location. Succinctly stated,the submission of Mr. Sharawat is that the 2014 Regulations do notcontemplate the geographical location of any particular institution asan inhibiting factor, insofar as application, by such institution, forstarting any new course - which would include the two new ITEPs -was concemed. Rather, he submits, applications were required to beinvited from all institutions, which fulfill the norms and standardsstipulated in the Appendices relating to that course and, thereafter,after screening the applications, the concemed Regional Committeeswere to get in touch with the State Govemments or Union Territories.Even at that stage, the State Govemments, or Union Territories, could

not blankly refuse to permit starting of the new course/courses, buthad to justify the decision with cogent reasons, backed by relevantstatistical data. The decision of the State Government, and thematerial and data furnished by it, would be considered by theRegional Committee, while disposing of the application of theinstitution concerned. Non-receipt, from the State Government, orUnion Territory Administration, of any response to the communication of the Regional Committee, within the periodsstipulated in Clauses (4) and (5) of Regulation 7, would entitle theRegional Committee to proceed with consideration of the application,of the institution concerned, for permission to start the course/courses,on merits, without waiting any further.

51. It is clear that, while, undoubtedly, the State governments, orgovernments of Union Territories, within which the institutions, orcourses, are to be commenced, are stakeholders in the matter, primacyis accorded, by the statute, to the necessity of starting the course/courses/instiUitions, rather than to any indefensible objection,by the concerned State/Union Territory, thereto. The statutecontemplates that, ultimately, it is the decision of the RegionalCommittee which is to prevail, rather than the objection of theconcerned State Government or Union Territory. Quite obviously, thisis in the interests of furthering of education, and in ensuring, as far aspossible, the reach, of the educational arm of the state, to all comersof the country.

p^gg gjj ^^34

52. Mr. Sharawat submits that, once Regulation 7 - specifieallysub-regulation (4) thereof - contemplates communication, by theRegional Committee, with the government of the concemed State orUnion Territory, only after the applications were submitted, andprescribed, thereafter, in detail, the manner in which the request wasto be examined by the concemed State/Union Territory, the manner inwhich it was to respond, and the action to be taken on the basis of theresponse received, the NCTE aeted with marked illegality incorresponding with the govemments of the eoncemed States/UnionTerritories even before inviting applications and, acting on theresponses from the States/Union Tenitories thereto, limitingapplications to institutions located in certain select states. UnionTerritories, or tehsils. To our mind, this proposition isunexceptionable, and we are not required, in order to arrive at thisconclusion, to refer to any abstmse Latin maxims, or enter into any23involved exercise of constitutional interpretation. Taylor v. Taylor ,as followed in Nazir Ahmed v. and anotably King Emperor^'^ plethora of judgments of the Supreme Court, the most well-knownbeing, perhaps. State of Uttar Pradesh v. Singhara Singh^^, concludethe issue, in law, in favour of the petitioners. The legal principle,fossilised over period of time, is thus enunciated, in SingharaSingh^^:

"8. In Nazir Ahmed's case L.R. 63 IndAp 372 the JudicialCommittee observed that the principle applied in Taylor v.Taylor [1875] 1 Ch. D. 426 Court, namely, that where apower is given to do certain thing in certain way, the thingmust be done in that or nor at all and that other methods of

"(1875) IChD 426^^AIR 1936 PC 523"AIR 1964 SO 358

performance are necessarily forbidden, applied to judicialofficers making records under s. 164 and, therefore, held thatmagistrate could not give oral evidence of the confessionmade to him which he had purported to record under s. 164 ofthe Code. It was said that otherwise all the precautions andsafe guards laid down in Sections 164 and 364, both whichhad to be read together, would become of such trifling valueas to be almost idle and that "it would be an unnaturalconstruction to hold that any other procedure was permittedthan which is laid down with such minute particularity in thesection themselves."

9. The rule adopted in Taylor v. Taylor [1875] 1 Ch. D.426 is well recognised and is founded on sound principle. Itsresult is that if statue has conferred power to do an actand has laid down the method in which power has to beexercised, it necessarily prohibits the doing of the act in anyother manner than that which has been prescribed. Theprinciple behind the rule is that if this were not so, thestatutory provision might as well not have been enacted."

(Emphasis supplied)

53. In the present case, the manner in which the State Governmentis to be involved in the process of invitation and processing of applications, for commencing new teacher education courses, isspecifically set out in Regulations 5 and 7 of the 2014 Regulations.Regulation 5 does not contemplate involvement of the Stategovemment at the time of inviting applications, or prior thereto.Involvement of the State govemment is specifically contemplated, bysub-regulation (4) of Regulation 7, after applications have beenreceived, scanned and screened. It is only thereafter, that writtencommunication, along with the application form submitted by theinstitution is to be sent, by the Regional Committee, to thegovemment of the concemed State or Union Territory. The

importance of adhering to this scheme is underseored by the detailedproeedure prescribed, even thereafter, for eonsideration of theapplication by the concerned State Govemment, its response thereto,fixation of speeifie time sehedules, grant of two, and no more,opportunities, to the State Govemment to respond within such fixedtime sehedules, and the manner in which the response of the StateGovemment is to be considered by the Regional Committees as wellas the mamier in which the Regional Committee is to proceed, in easeno response is reeeived from the State Govemment. This entireprocedure has, clearly, been reduced to nullity, by the impugneddecision, of the NCTE, to invite the views of the State Governments,or the govemments of the Union Territories, behind the baek of theaspiring institutions, even before inviting applications.

54. Abiding by the mandate of sub-regulation (4) of Regulation 7,after applications are invited, can possibly offer no panaeea. In thefirst place, large number of institutions, located outside the States,Union Territories, or regions specified in the impugned Public Noticedated 20"' May, 2019, have been prevented even from applying forstarting the two new ITEPs. It is important to note, at this point, thatsub-regulation (4) of Regulation 7 does not contemplate an abstractquery being made, from the State govemment, as to whether it wasdesirous of commencing the two new ITEPs within its territory, ornot, but contemplates, rather, communication, to the StateGovernment, with copies of the application forms submitted by theinstitutions located within its territory. In other words, the StateGovemments are required to answer keeping in view the applicationforms submitted by the institutions located within their territories. Therequirement, in Regulation 7(4), of forwarding of the writtenapplications of the institutions, to the State Government, cannot betreated as mere formality. Quite obviously, the State Governmentwould have, before it, not only an abstract request, for its view as towhether it would be feasible for it to allow commencing of the twonew ITEPs, within its territory, or not, but would also have theapplications submitted by the institutions located within its territoryavailable for its perusal. It is quite possible that an otherwiserecalcitrant State Government may, after perusing the applicationssubmitted by the institutions located within its territory, be of the viewthat commencing the two new ITEPs would, in fact, be viableoption. The manner in which the NCTE has acted in the present case,has irretrievably foreclosed this option, to the governments of thoseStates and Union Territories, who did not "satisfactorily" respond tothe communication, dated 14'"' January, 2019, by the NCTE. Neitherwould any institution, located within such "excluded" States, Union Territories, or tehsils, have an opportunity to apply for starting the twonew ITEPs nor, consequently, would the concerned States or UnionTerritories have an opportunity to peruse such applications. Thisopportunity, which is statutorily conferred, on the States and UnionTerritories, by the scheme set out in Regulation 7 of the 2014Regulations, could not have been eviscerated by the NCTE, bycommunicating, in advance, with the governments of the States andUnion Territories and, thereby, eliminating some of them from thereckoning altogether. This decision, of the NCTE, does completeviolence to the scheme of Regulation 7 of the NCTE Regulations, and

forecloses the excluded" States and Union Territories fi'oinexpressing their views, in the manner contemplated by Regulation 7(4), and the sub-regulations that follow.

55. We are required, at all times, to be mindful, in such cases, ofthe fact that maximising the reach of education, within the countryhas, over time, metamorphosed into sanctified constitutional goal,with education being one of the most solemn of the fundamentalrights guaranteed by Part III of the Constitution of India.

56. Laudable motives, and lofty ideals, cannot justify departure, ofany authority which sports the insignia of Article 12 of theConstitution of India, from the strict letter of the law. We do notdoubt the bona fides of the NCTE, in acting in the manner it did, byentering into "advance correspondence" with the States and UnionTerritories. The NCTE was, in doing so, probably acting ex abundantcautela, with the objective of causing minimum inconvenience to themaximum number of "aspiring" institutions. That, however, is not themanner in which the letter of the law, as embodied in the 2014Regulations, required the NCTE to act. If law must rule, the rule oflaw must prevail. The Regulations have been framed by the NCTEitself. If the NCTE decides to depart from the scheme set out in theRegulations, it can do so, but only by amending the Regulations, andnot by executive fiat. Regulation, of the exercise of invitation,evaluation and consideration of applications, from teacher educationinstitutions desirous of commencing the two new ITEPs, cannot be ina manner foreign to the Regulations themselves.

57. We find substance, therefore, in the grievance, voiced by Mr.Sharawat, at the NCTE having entered into "advancecorrespondence", with the States and Union Territories and, on thebasis of the responses received, or not received, thereto, havingexcluded, altogether, certain States, or, in the case of the State ofRajasthan, certain tehsils, from the impugned Public Notice dated 20'^May, 2019 supra.

58. We deem it appropriate to refer, at this point, to certain judicialpronouncements, which appear, to us, to underscore the legal positionpostulated by us hereinabove.

Thirumurusa Kirupananda Varivar Thavathiru Sundara Swami2alMedical Education and Charitable Trust'^

59. In the context of our discussion, and conclusions, hereinabove,the judgment in Thirumuruga Kirupananda Variyar ThavathiruSundara Swamigal Medical Education and Charitable Trust^^, onwhich Mr. Sharawat placed reliance, assumes considerablesignificance. brief glance at the facts of the said case is necessary.On 2"'' December, 1987, the Thirumuruga Kirupananda VariyarThavathiru Sundara Swamigal Medical Education and CharitableTrust (hereinafter referred to as "the Trust") applied, to the TamilNadu Medical University, for affiliation, of medical college whichthe Trust desired to start, as per the Dr. M. G. R. Medical University,Tamil Nadu Act, 1987 (hereinafter referred to as "the MedicalUniversity Act"). The University, however, desired the Trust to obtain

an NOC from the Government of Tamil Nadu, without which theapplication could not be considered. The Trust challenged thisdecision, before the High Court of Madras. learned Single Judge ofthe High Court, vide order dated 13*'^ April, 1989, by consent ofparties, directed that the University would not insist on the priorpennission of the Government and would consider the application, foraffiliation, submitted by the Trust, on merits. Vide order dated IS"'December, 1989, the University rejected the application on the groundthat it had been submitted late. This order, too, was set aside by alearned Single Judge of the High Court, holding that the applicationhad been sent, by post, before the prescribed date and was not,therefore, barred by time. The University was yet again, directed toconsider the application on merits.

60. In the interregnum, the Medical University Act was amendedby the Dr. M. G. R. Medical University, Tamil Nadu (Amendmentand Validation) Act, 1989, which inserted sub-section (5) in Section 5of the Medical University Act. The newly inserted proviso requiredevery college, seeking affiliation to the University, to obtain, priori,permission of the Government to establish the college, as well as toestablish that the conditions of such permission stood complied with.

61. On 16'^' August, 1991, joint inspection of the medical college,sought to be opened by the Trust was conducted by the University,pursuant whereto, by order dated 16'^ August, 1991, the application,for affiliation, submitted by the Trust, was rejected on the ground ofcertain deficiencies in infrastructure. This motivated the Trust to file

third writ petition, which was also allowed, by learned Single Judgeof the High Court, vide judgment dated 7'*^ February, 1992, who heldthat the University had taken irrelevant and extraneous considerationsinto account, while rejecting the application, for Trust, for affiliation.Writ appeals were preferred, thereagainst, before the Division Benchof the High Court.

62. During the pendency of the said writ appeals, the IndianMedical Council (Amendment) Act, 1993 came into effect on 27thAugust, 1992. The said Act inserted Sections 10-A, 10-B and 10-C inthe Indian Medical Council Act, 1956 (hereinafter referred to as "theIMC Act"). Section 10-A specifically ordained that the establishmentof new medical College, opening of new or higher course of studyor training, could be done only with the previous permission of theCentral Government obtained in accordance with the provisions ofthat section. In view of the enactment of these provisions, the CentralGovernment contended, before the Division Bench which was hearing the writ appeals against the judgment, dated February, 1992 supra,of the learned Single Judge, that, with the introduction of Section 10-A in the IMC Act, the entire field came to be occupied thereby, andthat the Medical University Act, to the extent it occupied the samefield, had been rendered inoperative. Consequently, it was submitted,it was no longer necessary, for the establishment of medical college,to obtain prior approval of the State Government.

63. The submission was not, however, favourably received by theDivision Bench of the High Court which, vide judgment dated 30^*^

SiS

April, 1993, allowed the writ appeal filed by the State Governmentand dismissed the writ appeal filed by the Trust, against the judgment,dated February, 1992 {supra) of the leamed Single Judge. TheDivision Bench held that the amendment introduced in Section 5(5) ofthe Medical University Act was not, in any way, affected by theprovisions of the IMC Act and that, even after insertion of Section 10-A in the IMC Act, prior permission of the State Government wasnecessary for establishing medical college. This decision, of theDivision Bench of the High Court was carried, in appeal, by the Trust,before the Supreme Court, and was decided by the judgment underdiscussion.

64. Ad interim directions were issued, by the Supreme Court,during the pendency of the aforesaid appeal, of the Trust, before it,directing the Trust to apply to the State Government for the requisitepermission. Pursuant thereto, the Trust applied to the Government ofTamil Nadu, for grant of permission, submitting, in the application,that it fulfilled all necessary criteria, including infrastructuralfacilities, therefor. However, by order dated 9'^ March, 1994, theGovernment of Tamil Nadu rejected the application, essentially on theground that the number of medical colleges available in the State weresufficient to cater to the prevalent educational requirements and that,therefore, there was "no need for starting any more medical collegesin the State". Despite this order, the Supreme Court directed theMedical Council of India (MCI) to inspect the medical College of theTrust and submit report, regarding the infrastructure available withit. The MCI submitted favourable report, recommending grant of

permission to start teaching in the said college. The University alsoinspected the college and submitted favourable report.

65. The Trust, thereafter, applied, under Section 10-A of the IMCAct, to the Central Government, which directed issuance of letter ofintent, to the Trust, for starting the new medical College. Armed withthese recomrnendations, the Trust represented, to the Government ofTamil Nadu, on 6'^ January, 1996, for issuance of an essentiality/noobjection certificate, so that it could establish its medical college. Vide•tVicommunication dated 10 January, 1996, however, the Government ofTamil Nadu rejected the said request, pointing out that it had not1changed its existing policy, of not permitting any private trust ormanagement to start medical/dental college.

66. The Supreme Court observed that, in these circumstances, theonly impediment to the establishment of the medical college, by theTrust, was the stand, adopted by the State Government, thatpermission could not be granted, to private trust, to establish amedical college. This, pointed out the Supreme Court, threw up, forconsideration, the question of the role of the State Government in thematter of establishment of medical college. Needless to say, theGovernment of Tamil Nadu asserted its right on the basis of theproviso to Section 5(5) of the Medical University Act, which wassought to be disputed, by the Trust, relying on Section 10-A of theIMC Act. The Trust contended that Section lO-A of the IMC Actwould prevail over Section 5(5) of the Medical University Act

67. After subjecting Article 254 of the Constitution of India, whichdeals with inconsistency between laws made by the Parliament andlaws made by State legislators, to searching analysis, the SupremeCourt held, in the following terms (contained in para 26 of the report)that there was repugnancy, between the proviso to Section 5(5) of theMedical University Act and Section 10-A of the IMC Act;

"It cannot, therefore, be said that the test of two legislationscontaining contradictory provisions is the only criterion ofrepugnance. Repugnancy may arise between two enactmentseven though obedience to each of them is possible withoutdisobeying the other if competent legislature with superiorefficacy expressly or impliedly evinces by its legislation anintention to cover the whole field. The contention of ShriSanghi that there is no repugnancy between the proviso toSection 5(5) of the Medical University Act and Section 10-Aof the Indian Medical Council Act because both can becomplied with, cannot, therefore, be accepted. What has to beseen is whether in enacting Section 10-A of the IndianMedical Council Act, Parliament has evinced an intention tocover the whole field relating to establishment of new medicalcolleges in the country."

68. Having thus adumbrated the issue before it, the Supreme Court

proceeded to hold thus (in paras 31 and 34 of the report):

"31. It would thus appear that in Section 10-A Parliamenthas made complete and exhaustive provision covering theentire field for establishing of new medical colleges in thecountry. No further scope is left for the operation of the StateLegislation in the said field which is fully covered by the lawmade by Parliament. Applying the tests laid down by thisCourt, it must be held that the proviso to sub-section (5) of ISection 5 of the Medical University Act which was inserted bythe State Act requiring prior permission of the StateGovernment for establishing college is repugnant to Section10-A inserted in the Indian Medical Council Act, 1956 by theCentral Act which prescribes the conditions for establishing anew medical college in the country. The said repugnancy is,however, confined to the field covered by Section 10-A, viz.,

establishment of new medical college and would not extendto establishment of other colleges.

34. It is no doubt true that in the scheme that has beenprescribed under the Regulations relating to establishment ofnew medical colleges one of the conditions for the qualifyingcriteria laid down is that essentiality certificate regardingdesirability and feasibility of having the proposed college atthe proposed location should be obtained from the StateGovernment. The said condition about obtaining anessentiality certificate from the State Government regarding desirability and feasibility of having the proposed college atthe proposed location cannot be equated with obtaining priorpermission of the State Government for establishing newmedical college as required under the proviso to Section 5(5)of the Medical University Act. For the purpose of granting theessentiality certificate as required under the qualifying criteriaprescribed under the scheme, the State Government is onlyrequired to consider the desirability and feasibility of havingthe proposed medical college at the proposed location. Theessentiality certificate cannot be withheld by the StateGovernment on any policy consideration because the policyin the matter of establishment of new medical college nowrests with the Central Government alone."

(Emphasis supplied)

69. Mr. Jain, leamed ASG, attempted to distinguish the judgment in

Thirumuruga Kimpananda Variyar Thavathim Sundara SwamigalMedical Education and Charitable Trust^^, by contending that,firstly, the said decision dealt with competing Central and Stateenactments, whereas no such competing enactments existed in thepresent case and, secondly, that the Central Government had, in thatcase, opposed the involvement of the State Covemment, in the matterof establishment of the new medical College by the Trust whereas, inthe present case, he, appearing on behalf of the Central Covemment,was contending that the State Covemments had the right to refuse,

even in advance of invitation of applications, permission to establishthe two new ITEPs within their respective territories.

70. Neither of these submissions, in our view, detract from theimpact of the judgment, in Thirumuruga Kimpananda VariyarThavathiru Sundara Swamigal Medical Education and CharitableTrusi\ on the present case. Adverting, first, to the secondsubmission, of Mr. Jain, we, as interpreters of law, are required toaccord precedence to the position in law, as it emerges from theprovisions of the statute and binding precedents, over the standadopted by either party before us. The stand being adopted by theCentral Government, or the NCTE in the present case, as vocalised byMr. Jain, therefore, cannot have any bearing on the applicability, orotherwise, of the decision in Thirumuruga Kirupananda VariyarThavathiru Sundara Swamigal Medical Education and CharitableTrusi^. Regarding the first submission of Mr. Jain, it is correct thatwhile, in Thirumuruga Kirupananda Variyar Thavathiru SundaraSwamigal Medical Education and Charitable Trust^^' the SupremeCourt was confronted with two competing, and apparently conflicting,legislations, we are not faced with any such conflicting statutes. Whatwe have before us is, however, executive action, by the StateGovernment - albeit at the behest of the NCTE - which would reduce,to redundancy. Regulations 5 and 7 of the 2014 Regulations. The2014 Regulations, having been framed by the NCTE in exercise of thepowers conferred by Section 32 of the NCTE Act, partakes, in amanner, of the character of Central legislation even if, in sense,subordinate. Analogising the situation to that which arose inThirumuruga Kirupananda Variyar Thavathiru Sundara SwamigalMedical Education and Charitable Trust'^, and applying the law laiddown in the said judgment, we are in agreement with the submission,of Mr. Sharawat, that the obtaining of "advance opinions" from theconcerned States and Union Territories, for the commencement of thetwo new ITEPs, before inviting applications under Regulation 5, and,on the basis thereof, restricting the field of applications, in theimpugned Public Notice dated 20^^' May, 2019, violated Regulations 5and 7 of the 2014 Regulations and could not, therefore, sustain thescrutiny of law. It was not permissible to, by an executive decision,violate the statutory mandamus enshrined in Regulations 5 and 7 ofthe 2014 Regulations, and render the provisions of sub-regulation (4)to (7) of the latter Regulation, otiose.

Sant Dnvaneshwar Shikshan Shastra Mahavidvalava^

71. In conjunction with the judgment in ThirumurugaKirupananda Variyar Thavathiru Sundara Swamigal MedicalEducation and Charitable Trust^^, the decision in Sant DnyaneshwarShikshan Shastra Mahavidyalaya^ also assumes significance.

72. The appellant, in Sant Dnyaneshwar Shikshan ShastraMahavidyalaya^, applied to the NCTE, on 3U' December, 2003, forgrant of permission to start B.Ed. College for women, in accordancewith the provisions of the NCTE Act and the National Council forTeacher Education (Norms and Conditions for Recognition ofBachelor of Elementary Education) Regulations, 1995 (hereinafter

referred to as "the 1995 Regulations"). The Expert Committee of theNCTE visited the appellant's campus on 6"' June, 2005, and verifiedthe adequacy of infrastructure, staff and other norms. report,accordingly, was submitted by the Inspection Committee to the NCTEwhich approved, and granted recognition, for conducting of the B.Ed,course by the appellant, with an intake capacity of 100 students, fromthe 2005-2006 academic session. The appellant, thereafter, applied, tothe Government of Maharashtra, on 4''" July, 2005, for grant ofpermission to start the College, as was required by the MaharashtraUniversities Act, 1994 (hereinafter referred to as "the UniversityAct"). No response being forthcoming, to the said application, fromthe Government of Maharashtra, the appellant approached the HighCourt, by way of writ petition.

73. The SNDT Women's University, in its capacity as affiliatingUniversity, submitted, before the High Court, that it did notrecommend the case of the appellant to the State as, in the prospectiveplan for 2002-2007, only one college was allocated to the Punedistrict. The Govemment of Maharashtra, in its affidavit, contendedthat it had an important role to play, in the matter of grant ofpennission by the NCTE, which stood recognised by the SupremeCourt in St John's Teachers Training Institute v. Regional Director,NCTE^^. It was emphasised, by the Government of Maharashtra, thatit was vital stakeholder in the establishment of professional courseswithin the State, and was in the best position to correctly assess andknow the extent of requirement of trained manpower and supply of

trained teachers. Thus, it was contended, the input of the State ofMaharashtra, by way of grant of NOC, was vital for enabling theNCTE to exercise its powers, and the NCTE could not grantpermission, therefor, in the absence of such NOC. On the ground thatthere were sufficient colleges, conferring the B.Ed, qualification, inthe State, it was contended that policy decision had been taken, bythe Cabinet Sub-Committee in the State, not to grant approval, orissue NOC, for starting any new institution, imparting the saidqualification. The NCTE contended, per contra, that it was the finalauthority for granting permission to start the B.Ed, course, and itsdecision, to do so, was required to be respected by the affiliatingUniversity as well as by the State Government. The issue that arosefor consideration, before the High Court, was thus delineated by theSupreme Court, in para 13 of the report:"The High Court, therefore, was called upon to consider therole played by the State Govemment in the process ofconsideration of application by the institutions seeking recommendation of opening B.Ed, eolleges by NCTE in the light of the provisions of the Act in juxtaposition to the extentof trained manpower required by the State and to take policydecision on the basis of output of teachers by such colleges.The Court was also called upon to eonsider whether in theabsence of any material being made available by the StateGovemment to NCTE the latter can process the applicationand take decision contrary to the decision of the StateGovemment. question had also arisen as to whether theState Govemment can refuse permission to an institutionwhich had been granted permission to start B.Ed, college byNCTE under the Act and whether policy decision of the StateGovemment not to grant NOC would bind NCTE in the lightof the provisions of the Act."

74. In contrast to the statutory position that obtains in the presentcase, sub-regulations (e) and (f), of Regulation 5 of the 1995Regulations, which applied in Sant Dnyaneshwar Shikshan ShastraMahavidyalaya\ specifically required every institution, intending tooffer course or training in teacher education, which was notfunctioning before 17''" August, 1995, to submit an application forrecognition with an NOC from the State or Union territory in which itwas located.

75. The validity of these clauses had been sought to be called intoquestion, •in • St John's Teachers Training Institute 7/*. It was sought tobe contended, in the said case, that the provision for submitting anapplication, for recognition, with the NOC issued by the StateGovernment or Union Territory, in which the institution was located,was invalid and ultra vires, and that the State GovemmentAJnionTerritory was an alien, insofar as recognition of the institution wasconcemed. By insisting on NOC from the State GovemmentAJnionTerritory, it was contended, the NCTE had created parallel bodyunknown to the law. For these reasons, it was submitted that clauses(e) and (f) of Regulation 5 of the 1997 Regulations were liable to bestmck down. The Supreme Court, however, repelled the challenge,holding that the power conferred on the State Govemment, or UnionTerritory, while considering an application for grant of NOC, was notarbitrary or uncanalized, and had to be restricted by the guidelinesissued by the NCTE in that regard. Further, it was observed, the grant,or refusal of NOC, by the State Govemment or Union Territory wasnot conclusive or binding, and was only required to be taken into

consideration by the Regional Committee of the NOTE, while taking adecision on the application, of the institution, for grant of recognition.In that view of the matter, the Supreme Court was, in St John^sTeachers Training Institute^^, of the view that no occasion, forstriking down clauses (e) and (f) of Regulation 5 of the 1997Regulations, arose. We may observe, here, that, unlike the statutoryposition which obtained in St John's Teachers Training •Institute • 26, ^we do not have, before us, any provision, either in the NCTE Act or inthe 2014 Regulations, or elsewhere in any other statutory instrumentbrought to our notice, requiring institutions, applying for permissionto run any teacher education course, to furnish, with the applicationsubmitted in that regard, formal recommendation of the StateGovernment. This requirement figures, for the first time, in para 3 ofthe impugned Public Notice, dated 20"^ May, 2019. The decision in StJohn's Teachers Training Institute^^, therefore, does not apply to thefacts of the case before us.76. Having noticed the decision in St John's Teachers TrainingInstitute 26, the Supreme Court, in Sant Dnyaneshwar ShikshanShastra Mahavidyalaya\ held that, the field relating to regulation andproper maintenance of norms and standards in the teacher educationsystem, and matters connected therewith, was fully and completelyoccupied by the NCTE Act, which was relatable to Entry 66 of List Iof the Vllth Schedule to the Constitution of India and that the Statewas, therefore, proscribed from refusing pennission, on anyconsideration of policy. This position of law, it was noted, had alreadybeen enunciated, by the Supreme Court, earlier, in Thirumuruga

Kirupananda Variyar Thavathiru Sundara Swamigal MedicalEducation and Charitable Trust^^n^ Jaya Gokul Educational TrustV. Commissioner and Secretary to Government Higher EducationDepartment^^. Para 75 of the report is particularly significant,especially when viewed in the backdrop of the law enunciated inThirumuruga Kirupananda Variyar Thavathiru Sundara SwamigalMedical Education and Charitable Trust^^:

"The decision relied on by Vidharbha SikshanVyawasthapak Mahasangh v. State of Maharashtra^^ has noapplication to the facts of the case. In that case, the power waswith the State Government to grant or refuse permission toopen BEd college. Considering the fact that if permissionwould be granted, there would be large-scale unemployment,it was decided by the State Government not to allow new BEdcolleges to be opened. It was held by this Court that suchpolicy decision could not be said to be arbitrary or otherwiseunreasonable. The Court in that case was not concerned withthe power or authority of the State Government vis-a-vis theCentral Government and the Act of Parliament. In the presentcase, as the field was fully occupied by Entry 66 of List I ofSchedule VII to the Constitution and Parliament has enactedthe 1993 Act, it was not open to the State Legislature toexercise power by making an enactment. Such enactment, asper the decisions of this Court, would be void andinoperative. It would be unthinkable that if the StateLegislature could not have encroached upon field occupiedby Parliament, it could still exercise power by executive fiatby refusing permission under the "policy consideration Thecontention of the State Government, therefore, has to benegatived."

(Emphasis supplied)

77. The italicised words from the above-extracted passage fromSant Dnyaneshwar Shikshan Shastra Mahavidyalaya are

are

significant, as they hold, categorically, that it is impermissible, evenby executive fiat, to incorporate, as condition for application, forpermission to start teacher education course, any requirement whichis alien to the Regulations framed under the NCTE Act.

78. Considerable reliance was placed, by the leamed ASG, on thejudgment in Adarsh Shiksha Mahavidyalaya^^, to justify the decisionof the NCTE to seek, in advance of invitation of applications by theimpugned Public Notice dated 20"^ May, 2019, the views of theeoneemed States and Union Territories, regarding the introduction ofthe two-new ITEPs. Having carefully read the said decision, we are ofthe view that it does not advance the case propounded by the leamedASJ, to any appreciable extent. The Supreme Court, in the said case,does not, even indirectly, approve limiting the areas from whichapplications could be submitted, on the basis of advancecorrespondence with the States and Union Territories. The SupremeCourt was eoneemed with the exercise of the or ^power, by State, Union Territory, after submission of applications, under clauses (2)and (3) of the applicable Regulations in that ease - which, more orless, were similar to clauses (4) and (5) of Regulation 7 of the 2014regulations. We have yet to reach that stage, and are eoneemed withthe issue of whether the NCTE was justified in excluding certainStates/Union Territories, and certain tehsils in the State of Rajasthan,on the basis of advance correspondence, entered into, with the saidStates and Union Territories. Adarsh Shiksha Mahavidyalaya^^ doesnot address this issue and is, therefore, of no help to the NCTE.

79. The decisions in LBS B.Ed. College^'^ and Chintpurni MedicalCollege and Hospital'^ deal with the power of the State Government,after submission of application, and with admission to Medical andDental Colleges, respectively, and we do not deem it necessary,therefore, to allude, in any detail, to these decisions. Similarly, therecent decision in Jawaharlal Nehru Technological UniversityRegistrar^^, deals with the obligation, or the affiliating University, togrant NOC for opening an educational institution, irrespective of theeducational needs of the locality, and does not, therefore, impact thecontroversy in the present case.

80. Mr. Sharawat has also referred us to judgments of various HighCourts, including this Court. In our view, the legal position thatobtains, from the decisions cited and digested hereinabove, is clearand unequivocal. We do not, therefore, desire to burden this judgmentby referring to the said decisions, though the reliance, by Mr.Sharawat, thereon, has been noted hereinbefore.

clarificatorv caveat

81. We may enter, here, word of clarification. We are not holding,and do not intend to hold, that the scheme of things, as contained insub-Regulations (4) to (6) of Regulation 7 of the 2014 Regulations,proscribed, absolutely, the NCTE from corresponding with any State,or Union territory, before inviting applications from institutionsinterested in conducting the two new ITEPs. There can, quiteobviously, be no embargo on one govermnental authority writing toanother, or even eliciting the views of the second authority. Inter

governmental communication cannot be interdicted by Court. Itcannot, therefore, be held that the 2014 Regulations completelyprohibited all correspondence, between the NCTE and the States andUnion Territories, prior to inviting of applications for the two newITEPs. Where the NCTE fell in error was in "excluding" certainStates, and Union Territories, from the impugned Public Notice, datedMay, 2019,on the basis of the "advance correspondence" enteredinto, by it, with the States and Union Territories. Neither inAppendices 16 and 17 to the 2014 Regulations (as introduced vide the2019 Amendment Regulations), nor elsewhere in the 2014Regulations, is there to be found any justification for restricting, onthe basis of its geographical location, any institution, from applyingfor conducting Teacher Education Course, among those enumeratedin Regulation 9. By eliminating certain institutions, from theopportunity even to apply for the two new ITEPs, merely because theyhappened to be located, geographically, outside the States, or UnionTerritories mentioned in the impugned Public Notice, the NCTEintroduced, artificially, an additional restriction, based on thegeographical location of the institution, which is not to be found eitherin Appendices 16 and 17, or elsewhere in the 2014 Regulations. Wecannot subscribe to the extreme submission, advanced by Mr.Sharawat, that the NCTE was entirely incompetent to issue PublicNotice, and we agree with the learned ASG, to the extent of hissubmission that issuance of Public Notice does not require anyenabling statutory provision. Having said that, however, it wascertainly not open to the NCTE to, by such Public Notice, introducean additional "handicap", not to be found in the 2014 Regulations,

which would disentitle certain institutions from applying forconducting the two new ITEPs. This amounts to amendment of thestatutory Regulations by executive fiat, for which no sanction isavailable, either in the NCTE Act, or in any Rule or Regulationframed thereunder, including the 2014 Regulations.

Conclusion

82. These writ petitions are, therefore, disposed of, in the followingterms;

(i) The challenge, by the petitioners, to Clause 1.2 inAppendices 16 and 17 to the 2014 Regulations, as introducedby the 2019 Amendment Regulations, is without merit, andfails. The validity of the impugned Clauses 1.2 in Appendices16 and 17 is, consequently, upheld.

(ii) Consequently, all institutions and colleges, whichconform to Clause 1.2 of Appendices 16 and 17 to the 2014Regulations, would be entitled to apply for grant ofrecognition/permission for starting the two new ITEPs. Clause4 of the impugned Public Notice, dated 20^'' May, 2019, shallstand modified accordingly.

(iii) Clause 3 of the impugned Public Notice, dated 20^'' May,

2019, which requires that the applications, submitted byapplicant institutions/Universities, pursuant to the PublicNotice, have to be accompanied by formal recommendation

from the concerned State Govemments/UT Administration, isquashed and set aside.

(iv) Para 2 of the impugned Public Notice, dated 20'^^ May,2019, is also declared to be illegal, and is accordingly quashedand set aside, to the extent it limits the States, Union Territoriesand tehsils, from which applications may be submitted, to those specified in the table contained therein. Institutions, located in all States and Union Territories, which conform to the normsand standards contained in Appendices 16 and 17 to the 2014Regulations would, therefore, be entitled to apply, pursuant tothe impugned Public Notice dated 20'*^ May, 2019.

83. We are sanguine that, in directing thus, we are not violating anystipulated cut-off date as the Supreme Court has, vide order dated 15"^May, 2019, passed in Maa Vaishno Devi Mahila Mahavidyalaya v.State of U.P.^^, permitted the admission process to be completed30'^ April, 2020.

84. The writ petitions stand disposed of, in the above terms, with noorders as to costs.

C. HARI SHANKAR, J.

CHIEF JUSTICE

OCTOBER 01, 2019HJ

' MA 982/2019 with lA 75288/2019 in WP (C) 276/2012