Association of NCTE Approved Colleges Trust v. National Council for Teacher Education

(m) thirteen persons possessing experience and knowledge in the field of education or teaching to be appointed by the Central Government as under, from amongst the—

(i) Deans of Faculties of Education and

(ii) experts in secondary teacher education —One;

(iii) experts in pre-primary and primary teacher education —Three;

(iv) experts in non-formal education and adult education —Two;

(v) experts in the field of natural sciences, social sciences, linguistics, vocational education, work experience, educational technology and special education, by rotation, in the manner prescribed —Three; (n) nine Members to be appointed by the Central Government to represent the States and Union territory Administrations in the manner prescribed; (o) three Members of Parliament of whom one shall be nominated by the Chairman of the Council of States and two by the Speaker of the House of the People; (p) three Members to be appointed by the Central Government from amongst teachers of primary and secondary education and teachers of recognised institutions. (5) It is hereby declared that the office of the Member of the Council shall not disqualify its holder for being chosen as or for being a member of either House of Parliament‖ A perusal of Section 3 of the NCTE Act shows that the Council consists of

4. Section 7 of the NCTE Act lays down as to how the meetings are to be conducted. Section 7 of the Act reads as under: ―7. Meetings of the Council.—(1) The Council shall meet at such time and places, and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at such meetings) as may be provided by regulations: Provided that the Council shall meet at least once every year. (2) The Chairperson, and in the absence of the Chairperson, the Vice-Chairperson shall preside at the meetings of the Council. (3) If for any reason the Chairperson and the Vice- Chairperson, both are unable to attend any meeting of the Council, any other Member chosen by the Members present at the meeting shall preside at that meeting. (4) All questions which come up before any meeting of the Council shall be decided by a majority of votes of the Members present and voting and in the event of any equality of votes, the Chairperson, or in the absence of the Chairperson the person presiding, shall have and exercise a second or casting vote.‖

5. Section 11 of the NCTE Act provides for Authentication of the orders and other instruments of the Council. As per Section 11 of the Act, all orders and decisions of the Council shall be authenticated by the signature of the Chairperson or any other Member authorised by the Council in this behalf, and all other instruments issued by the Council shall be authenticated by the signature of the Member-Secretary or any other officer of the Council authorised in like manner in this behalf by the Chairperson.

6. Section 12 of the Act lays down the functions of the Council and the same reads as under: ―12. Functions of the Council.—It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co-ordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may— (a) undertake surveys and studies relating to various aspects of teacher education and publish the result thereof; (b) make recommendations to the Central and State Government, Universities, University Grants Commission and recognised institutions in the matter of preparation of suitable plans and programmes in the field of teacher education;

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

(d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher 1 *** in recognised institutions; (e) lay down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum; (f) lay down guidelines for compliance by recognised institutions, for starting new courses or training, and for providing physical and instructional facilities, staffing pattern and staff qualification; (g) lay down standards in respect of examinations leading to teacher education qualifications, criteria for admission to such examinations and schemes of courses or training; (h) lay down guidelines regarding tuition fees and other fees chargeable by recognised institutions;

(i) promote and conduct innovation and research in various areas of teacher education and disseminate the results thereof; (j) examine and review periodically the implementation of the norms, guidelines and standards laid down by the Council, and to suitably advise the recognised institutions; (k) evolve suitable performance appraisal system, norms and mechanisms for enforcing accountability on recognised institutions;

(l) formulate schemes for various levels of teacher education and identify recognised institutions and set up new institutions for teacher development programmes;

(m) take all necessary steps to prevent commercialisation of teacher education; and (n) perform such other functions as may be entrusted to it by the Central Government. [12A. Power of Council to determine minimum standards of education of school teachers.—For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognised by the Central Government or a State Government or a local or other authority: Provided that nothing in this section shall adversely affect the continuance of any person recruited in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges, under any rule, regulation or order made by the Central Government, a State Government, a local or other authority, immediately before the commencement of the National Council for Teacher Education (Amendment) Act, 2011 (18 of 2011) solely on the ground of non-fulfilment of such qualifications as may be specified by the Council: Provided further that the minimum qualifications of a teacher referred to in the first proviso shall be acquired within the period specified in this Act or under the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009).]‖ (emphasis supplied) One of the main functions of the Council is specified in Section 12 (k) of the Act to evolve suitable performance appraisal system, norms and mechanisms for enforcing accountability on recognised institutions.

7. Section 27 of the NCTE Act deals with delegation of powers and functions. It provides that the Council may, by general or special order in writing, delegate to the chairperson or to any other member or to any officer of the Regional Committee, subject to such conditions and limitations, if any, as may be specified in the order, such of its powers and functions under this Act except the power to make regulations under section 32, as it may deem necessary.

8. A perusal of the notice under challenge shows that the notice insists on submission of a Performance Appraisal Report annually which is a condition of recognition of an institution. Paragraph 3 of the said notice provides that the Teacher Education Institutions (TEIs) which are running NCTE recognised Teacher Education Courses are required to file a Performance Appraisal Report annually as the same is required for regulatory examination of the physical infrastructure, teaching faculty and other stipulations as per NCTE rules, regulation or the NCTE Act. Paragraph 4 of the said notice states that Performance Appraisal Report is now required to be mandatorily submitted by all TEIs online on a specially designed portal, i.e. (http://ncte.gov.in/Website/PARsystem.aspx) and the Performance Appraisal Report should be submitted for the academic year 2018-2019 through online method. The said Notice states that the Central and State Govt. institutions are required to pay Rs.5,000/- per institution, regardless of number of courses being run by them and all other categories are required to pay Rs. 15,000/-per institution, regardless of number of courses being run by them. The said notice further specifies that nonsubmission of Performance Appraisal Report will attract action under section 17(1) of NCTE Act which gives power to the Regional Committee to withdraw the recognition of such institutions.

9. The Notice dated 22.09.2019 was challenged by the Appellants herein by filing Writ Petitions primarily on the ground that the Member Secretary who has issued the notice did not have the jurisdiction to issue the same as he does not have the power to exercise any of the functions of the Council under the NCTE Act. Notice has also been challenged on the ground that neither the Council has taken any decision regarding the termination of the performance approval report nor the Council has delegated any power to the Member Secretary to prepare the performance approval report and insist on it without taking the approval of the Council, the Member Secretary lacks the power to take such decisions. It has also been stated by the Appellants that the direction in paragraph 4 of the notice under challenge, which requires the private unaided Teacher Education Institutions [TEI] to pay Rs.15,000/- as a fee for submitting the Performance Appraisal Report every year, is compulsory extraction of money and is in complete violation of Articles 19 and 265 of the Constitution of India and is also beyond the scope of the NCTE Act. The learned Single Judge, in the Judgment impugned herein, has raised the following questions for consideration: ―(a) Whether the Public Notice dated 22.09.2019 issued by the Member Secretary, NCTE is not without jurisdiction as the functions under section 12 of the NCTE Act can be lawfully exercised only by the Council/NCTE and not by any of its Members individually? (b) Whether clauses (ii) of para 4 of the said Public Notice dated 22.09.2019 which requires the private unaided Teacher Education Institutions [TEI] to pay Rs. 15,000/- as a fee for submitting the Performance Appraisal Report every year is not compulsory extraction of money in complete violation of Articles 19 and 265 of the Constitution of India?

(c) Whether clauses (ii) of para 4 of the said Public

Notice dated 22.09.2019 is ultra vires the NCTE Act as it seeks to create new policy heads not contemplated under the NCTE Act and is thus not contrary to law declared by the Hon'ble Supreme Court in Agricultural Market Committee Vs Shalimar Chemical Works Ltd [(1997) 5 SCC 516] and Kunj Behari Lal Butail Vs State of H.P [(2000) 3 SCC 40]?

(d) Whether the impugned impost stipulated in the

Public Notice does not suffer from jurisdictional error as the NCTE Act and Regulations does not empower NCTE to do so? (e) Whether impugned impost stipulated in the Public Notice does not violate the mandate of Article 19(l)(g) and 19(6) of the Constitution of India which requires the State Authorities to impose restrictions on exercise of Fundamental Rights only by means of "law" and not be executive instructions?‖

10. The learned Single Judge, after examining various clauses of the NCTE Act, came to the conclusion that the notice under challenge merely communicates the decision taken by the Council in its 46th meeting dated 28.03.2017 and 48th meeting dated 05.02.2019. The learned Single Judge has held that no specific power is required by the Secretary to communicate a decision taken by the Council or to issue a public notice which merely communicates the decision taken by the Council. The learned Single Judge, thereafter, proceeded further to decide the issue as to whether the levy of Rs.15,000/- per annum on the Teacher Education Institutions is ultra vires Article 265 of the Constitution of India and also the NCTE Act and has held that the said amount is in the nature of fee which the Council is charging from the TEIs for filing the Performance Appraisal Report.

11. Heard the counsels for the Appellants and the Respondent and perused the material on record.

12. Mr. Sanjay Sharawat, learned Counsel for the Appellants, has drawn the attention of this Court to Section 3 of the NCTE Act to show the composition of the Council. He has also drawn the attention of this Court to Section 12 of the NCTE Act and more particularly to sub-section (k) of the said Section to contend that it is the duty of the Council to evolve suitable performance appraisal system, norms and mechanisms for enforcing accountability on recognised institutions. He has also taken this Court through the porforma of the performance appraisal system. Mr. Sharawat has also taken this Court through the minutes of meeting of the 48th meeting of the Council held on 05.02.2019 to contend that in the said meeting it was proposed to insist on Performance Appraisal Report (PAR) instead of "Annual Renewal of Recognition" as had been decided by the Council in its 46th meeting held on 28.03.2017. He states that in the 48th Meeting a decision was taken to proceed ahead in the matter and it was decided that the proforma for Performance Appraisal Report will be developed by the NCTE. He contends that the porforma which had been uploaded along with the public notice under challenge has not been developed or approved by the NCTE and, therefore, the same should be set aside as the Member Secretary without the approval of NCTE cannot insist that the institute must file the proforma without it being approved by the NCTE.

13. Per contra, Mr. Chetan Sharma, learned Additional Solicitor General, submits that the issue of porforma is only an administrative function and the same need not be placed before the NCTE for approval. He has also taken this Court through the minutes of meeting dated 10.09.2021 to contend that NCTE had taken a decision for deletion of certain fields which are not relevant in the Performance Appraisal Report as instructed by the NCTE legal counsel and this shows that the porforma had impliedly been approved by the NCTE.

14. Material on record shows that in the 46th meeting of the Council, by way of Agenda 10, it was decided to charge a sum of Rs.20,000/- from selffinanced TEIs on yearly basis and Rs.5,000/- from the Central Government and State Government Universities and the Institutions. The said agenda does not talk of any Performance Appraisal Report to be filed. The NCTE accepted the proposal and decided that the renewal fee will be fixed at Rs.5,000/- for Government Institutions and Rs.15,000/- for private aided and non-aided institutions. Agenda and the decision of the Council in its 46th meeting held on 28.03.2017 reads as under: ―Regarding renewal of recognition by NCTE every year The NCTE Act, 1993 has been established for the purpose of achieving planned and coordinated development of teacher education system and for regulating and maintaining norms and standards in teacher education system. Over a period of time, it has been felt that after obtaining recognition from NCTE, Teacher Education Institutions(TEIs) do not adhere to the conditions of recognition and generally fail to maintain proper discipline and standard in that regard, NCTE has been struggling with this problem for some time now. Therefore, to ensure that TEIs continue to abide by the NCTE Norms regarding physical and academic infrastructure and facilities and keep themselves up to date with NCTE Regulations made from time to time, it would be appropriate to accord recognition initially for a period of one year and therefore renewal of recognition is given on yearly basis, through an online method to be prescribed by the NCTE. Annual renewal will ensure that the TEIs are working in strict accordance with NCTE Act, 1993 and Regulations. For the said purpose a processing fee of Rs.20000/- (Rs. Twenty thousand only) may be charged from self financed TEIs on yearly basis. The Central Govt. and State Govt Universities and institutions shall pay only Rs.5000/- (Rs. Five thousand only) as processing charges. This would facilitate in securing the object and purpose of NCTE Act, 1993, in particular reference to sections 12(c), (f), (j), (k) and

(m) of NCTE Act, 1993, Earlier NCTE proposed monitoring of the website of the institution through Quality Council of India and asked them to deposit a fee of Rs.3150/-. For this purpose since the renewal of recognition will involve monitoring of their websites as well, the amount paid by any TEI earlier for this purpose shall be adjusted in the total fee of Rs.20,000/- proposed to be charged for renewal fee in the first Year. Decision of the Council: The proposal was approved as proposed with the caveat that the renewal will be fixed at Rs.5000/- for Government Institutions and Rs.15000/- for private aided and non-aided institutions instead of the proposed Rs. 20000/-‖

15. The issue of Annual Renewal of Recognition of Teacher Education Institutions recognized by NCTE came up for consideration in the 48th meeting of the Council. Agenda and the decision taken by the Council in the said meeting reads as under: ―Agenda Item No.03: Consideration of the Performance Appraisal Report (PAR) Linked Renewal of Recognition/Permission of TEIs The Council in its 46th meeting held on 28th March 2017 vide agenda- item No. 10 approved the Annual Renewal of Recognition of Teacher Education Institutions recognized by NCTE. Before the decision could be implemented a large number of TEIs filed court cases across the country in various High Courts. A study of the various petitions filed in Courts revealed that a regime of annual renewal of recognition would not be feasible. Accordingly, it is proposed to insist on Performance Appraisal Report (PAR) at this stage to put in place a system of Managing Information System (MIS), which was intended with the Agenda Item No.10, as placed before the 46th GB Meeting. Accordingly, with same terms and conditions as already approved, the "PAR" may be substituted for "Annual Renewal of Recognition". Proforma to be developed by NCTE. The PAR, being part of the condition of recognition, will be insisted upon Course wise and with fees chargeable (as already approved in 46th GB) accordingly. The Council may consider the issue and accord its approval.

DECISION OF THE COUNCIL: The agenda item was approved as proposed authorising NCTE to proceed in the matter through a proforma to be developed by NCTE for this purpose.‖

16. A perusal of the said agenda shows that it was discussed in the meeting to insist on Performance Appraisal Report and to put in place a system of Managing Information System. The Council, after discussing the agenda, approved the proposal of authorising the NCTE to proceed in the matter through a proforma which was to be developed by NCTE for this purpose. There is nothing to indicate that the porforma, which has been uploaded with the notice under challenge, was placed before the NCTE in any meeting and has been approved by the NCTE. There is nothing on record to show that the function of the Council as laid down in Section 12(k) NCTE Act which is to evolve suitable performance appraisal system, had been delegated to the Member Secretary as per Section 27 of the NCTE Act. This Court, at this moment, is not going into the question as to whether the function of evolving a suitable performance approval report could be delegated at all or not. Be that as it may. The decision of the Council was specific that the porforma was to be developed by the NCTE and had to be approved by the NCTE and there is nothing on record to show that this process has been followed.

17. It is well settled that if there is a power coupled with duty mandating that an act has to be done in a particular way, it has to be done only in that way or not at all and all other modes are forbidden. The said principle has been laid down in Taylor v. Taylor, (1876) 1 Ch.D 426. This judgment has been followed by the Privy Council in another celebrated judgment: Nazir Ahmad v. King Emperor, AIR 1936 PC 253, wherein it has been observed as under: ―11.....where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.‖ This principle has been consistently followed by the Supreme Court in a number of judgments [refer: State of Rajasthan v. Mohinuddin Jamal Alvi & ANR., (2016) 12 SCC 608; State v. Sanjeev Nanda, (2012) 8 SCC 450); Nika Ram v. State of H.P., (1972) 2 SCC 80; Delhi Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354)].

18. The reliance placed by the learned ASG on minutes of meeting dated 10.09.2021 and his submission that the fact that the Council has decided for deletion of certain fields in the Performance Appraisal Report itself shows that this Report and the Porforma had been impliedly approved by the NCTE, cannot be accepted.

19. Section 12 of NCTE Act, which deals with the functions of the Council, is very specific that it is the function of the NCTE to evolve a suitable performance appraisal system. In 48th meeting of the Council also it was decided that NCTE should be authorised to proceed in the matter through a porforma developed by the NCTE. In the absence of any material to show that the proforma attached with the notice under challenge was evolved or even approved by the NCTE. The notice under challenge which necessitates on the Teacher Education Institutions running NCTE recognized Teacher Education Courses to file a Performance Appraisal Report annually is unsustainable and, therefore, the same is liable to be quashed as the same is in violation of the provisions of the NCTE Act. This Court is not going into the second question as to whether the amount of Rs.5,000/- which is to be submitted by the Central and State Government Institutions and Rs.15,000/- which is to be submitted by all other category of institutions along with the Performance Appraisal Report is in the nature of fee or in the nature of tax as the same is an academic exercise for the present.

20. With these observations, the notice under challenge is set aside. The appeals are allowed. Pending applications, if any, are disposed of.

SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J MARCH 13, 2023