Full Text
HIGH COURT OF DELHI
NATIONAL COUNCIL FOR TEACHER EDUCATION AND ANR ..... Appellants
Through: Mr.Naveen R. Nath, Sr. Advocate with Ms.Hetu Arora Sethi, Ms.Saumya Tandon & Mr.Anirud
Bhat, Advs.
Through: Mr.Sanjay Sharawat, Mr.Divyank Rana & Mr.Ashok Kumar, Advs. for R-1.
Dr. Manish Singhvi, Sr. Adv. with Mr. D.K.Devesh, Adv. for R-2.
NATIONAL COUNCIL FOR TEACHER EDUCATION AND ANR ..... Appellants
Through: Mr.Naveen R. Nath, Sr. Advocate
2022:DHC:1416-DB Dr. Manish Singhvi, Sr. Adv. with
Mr. D.K.Devesh, Adv. for R-2.
DIRECTORATE OF ELEMENTARY EDUCATION..... Appellant
Through: Dr. Manish Singhvi, Sr. Adv. with Mr. D.K.Devesh, Mr.Lalit Mohini
Bhat & Mr.Abhimanyu Verma, Advs.
Mr.Naveen R. Nath, Sr. Advocate
DIRECTORATE OF ELEMENTARY EDUCATION..... Appellant
Through: Dr. Manish Singhvi, Sr. Adv. with Mr. D.K.Devesh, Mr.Lalit Mohini
Bhat & Mr.Abhimanyu Verma, Advs.
Mr.Naveen R. Nath, Sr. Advocate
HON'BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA, J.
JUDGMENT
1. The present batch of appeals have been filed by the appellants –the National Council for Teacher Education (hereinafter referred to as the „NCTE‟) and the Directorate of Elementary Education, Government of Rajasthan, respectively, challenging the judgment dated 12.04.2021 passed by the learned Single Judge in W.P. (C) 2069/2021 and 2395/2021 filed by the respective respondents no.1 – institutes [hereinafter referred to as „Respondent Institutes‟]. By the Impugned Judgment, the learned Single Judge has disposed of the two writ petitions with the following directions:
2. The appellant - NCTE further challenges the order dated 16.07.2021, by which the Review Petitions filed by it, seeking review of the judgment dated 12.04.2021, were dismissed by the learned Single Judge.
3. The facts leading up to the filing of the writ petitions have been succinctly set-out by the learned Single Judge in paragraphs 3 and 4 of the Impugned Judgment, which are quoted hereinbelow:
4. Mr.Naveen R. Nath, the learned senior counsel for the NCTE challenges the Impugned Judgment to a limited extent, whereby the learned Single Judge has directed that in case the State of Rajasthan does not nominate an expert to participate in the Selection Committee for the appointment of the faculty within a period of one week from the date of the judgment, the matter be placed before the Chairperson of the NCTE in terms of the Regulation 12 of the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2014 [hereinafter referred to as the „Regulations‟], who shall waive the participation of the representatives of the State of Rajasthan in the Selection Committee, and the requirement for the approval of the faculty list by the State of Rajasthan, subject to such conditions as he/she may think fit, including the nomination of an expert by the NCTE itself to participate in the selection process.
5. Mr.Nath, the learned senior counsel for the appellant - NCTE submits that the power under Regulation 12 of the Regulations can be exercised only in larger public interest and is not intended to be exercised at the instance of an individual institution. He further submits that in terms of Section 16 of the National Council for Teacher Education Act, 1993 (hereinafter referred to as the „Act‟) read with Regulation 9 and Appendix-2 of the Regulations, the entire process of selection of faculty and staff is within the exclusive domain of the State Government/affiliating agencies. The NCTE, in these circumstances, cannot be vested with the power to relax those conditions and/or invoke Regulation 12 of the Regulations. He further submits that the learned Single Judge, having directed the State of Rajasthan to nominate an expert to participate in the Selection Committee, could not have given an escape-route to the State Government, by simultaneously directing the NCTE to exercise powers under Regulation 12 of the Regulations. He submits that in doing so, the learned Single Judge has clearly erred in not appreciating the vast power of a Writ of Mandamus granted to the High Court under Article 226 of the Constitution of India, as also the power to have such Writ enforced.
6. Dr. Singhvi, the learned senior counsel for the State of Rajasthan submits that the State of Rajasthan has taken a conscious uniform policy decision in the year 2008 to not grant any new affiliation to any teachers‟ training institute as the State was unable to accommodate approximately 20,000 teachers per annum in schools/institutions, and there was a surplus of trained teachers. This decision was communicated to the NCTE as well, requesting the NCTE to not issue any communication to grant recommendation to a new institute or for increasing the intake capacity of existing institutes, in light of the policy decision of the State. Only for the Academic Session 2019-20, a relaxation in the policy was made and a No Objection Certificate [hereinafter referred to as „NOC‟] was issued to 58 colleges, including the respondent-institutes. The said NOC was restricted to the Academic Session 2019-20. The communication dated 09.07.2019 was also addressed to the NCTE, stating that the State Government is not willing to issue any further NOCs/recommendation to new institutions and rejected all applications sent by the Regional Committee. He submits that, in spite of these clear communications, the Regional Committee went ahead and issued a Letter of Intent [hereinafter referred to as „LOI‟] under Regulation 7(13) of the Regulations in favour of the respondent-institutes. It is in these circumstances that the State of Rajasthan refused to nominate any member for the Selection Committee for the purpose of making appointments of the faculty in response to the LOI. He submits that the grant of an LOI to the respondent-institutes in the absence of an NOC from the concerned affiliating bodies, itself is illegal. He submits that the NCTE should have given due consideration to the objections of the State Government before issuing the LOI to the respondent-institutes. He submits that, in fact, the State Government was not even called for consultation by the Western Regional Committee, which issued the LOI to the respondent-institutes. He submits that, therefore, the learned Single Judge has erred in issuing a direction to the State Government to nominate an expert to participate in the Selection Committee of the faculty.
7. On the other hand, the learned counsel for the respondent-institutes submits that in view of the judgment of the Supreme Court in State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Others, (2006) 9 SCC 1, the State Government cannot object to the grant of recognition or create any impediment in such process. He submits that, therefore, the alleged policy decision of the State of Rajasthan cannot act as an impediment on the NCTE to grant recognition. He submits that, therefore, the learned Single Judge has rightly issued a direction to the State of Rajasthan to appoint an expert in the Selection Committee for the faculty of the respondent-institutes.
8. Countering the submissions of the learned senior counsel for the NCTE, the learned counsel for the Respondent Institutes submits that due to the inaction and refusal of the State of Rajasthan, the respondentinstitutes have already lost out on the Academic Sessions for 2019-20, 2020-21, and 2021-22. As it is the primary function of the NCTE to grant recognition, the learned Single Judge, to safeguard the interest of the respondent-institutes, who would have otherwise suffered from any further delay, has rightly directed the Chairperson of the NCTE to exercise its powers under Regulation 12 of the Regulations and grant relaxation to the respondent-institutes from having an expert appointed by the State Government in the Selection Committee for the appointment of the faculty.
9. We have considered the submissions made by the learned counsels for the parties.
10. The Act has been promulgated by the Parliament for establishing the NCTE with a view to achieve a planned and coordinated development for the teacher education system throughout the country, and for the regulation and proper maintenance of norms and standards in the teacher education system, including qualifications of school teachers. Section 14 of the Act requires every institution intending to offer a course or training in teachers‟ education to apply for grant of recognition to the Regional Committee of the NCTE. The said application is to be considered in such manner as may be determined by the Regulations. In terms of sub- Section 3 of Section 14 of the Act, the Regional Committee may pass an order granting recognition to such institutions, or refuse recognition to such institutions. In terms of sub-Section 6 of Section 14 of the Act, every examining body, on receipt of the order granting recognition, shall either grant affiliation to such institution or, where the recognition has been refused, cancel the affiliation of the institution. A similar process is prescribed-to start any new course or training in teacher education under Section 15 of the Act. Section 16 of the Act prohibits grant of affiliation or holding of any examination, unless the institution concerned has obtained recognition from the concerned Regional Committee under Section 14 of the Act, or obtained permission for a course/training under Section 15 of the Act.
11. For discharge of functions under Section 15 and 16 of the Act, and in exercise of powers under Section 32 of the Act, the NCTE has framed the above-mentioned Regulations. We are concerned herein with Regulation 7 of the said Regulations, which is reproduced hereinbelow:
12. A reading of the above Regulation would show that the processing of an application made by an institute for the grant of recognition passes through various stages, which can be summarised as under: a) Where the application is incomplete, the same is rejected at the outset. One of the documents to be accompanied with the application is the „No Objection Certificate‟ issued by the concerned affiliating body in terms of Regulation 5(3) of the Regulations; b) If the application is complete, the same is forwarded by the Regional Committee to the State Government and the affiliating body concerned for furnishing their recommendation or comments. c) In terms of Regulation 7(5) of the Regulations, in case the State Government or the Union Territory Administration is not in favour of recognition, it shall provide detailed reasons or grounds thereof with necessary statistics, which shall be taken into consideration by the Regional Committee concerned while disposing of the application. In case, in spite of reminders, the State Government fails to furnish its comments, the Regional Committee shall process and decide the application on merits without waiting for the State Government to comment or recommend on the application; d) After considering the recommendation of the State Government or on its own merits, the Regional Committee shall decide that the institution shall be inspected by a team of experts (known as Visiting Team) with a view to assess the level of preparedness of the institution to commence the course; e) The Regional Committee shall decide on the grant of recognition after considering the report of the Visiting Team; f) In case the Regional Committee takes a decision to grant recognition to the institution, the concerned institution shall be informed, through the Letter of Intent, regarding the decision of grant of recognition or permission subject to appointment of qualified faculty members before the commencement of the academic session. The Letter of Intent shall also be sent to the institution and the affiliating body with the request that the process of appointment of qualified staff, as per policy of the State Government or the University Grants Commission or the University, may be initiated, and the institution be provided all assistance to ensure that the staff or faculty is appointed as per the norms of the Council within two months; g) The institution, upon selection, shall submit the list of the faculty, as approved by the affiliating body, to the Regional Committee. The institution shall also launch its own website with a hyperlink to the Council and the corresponding Regional Office‟s website; h) The Regional Committee concerned, on being satisfied with the institution having fulfilled the requisite norms and standards and the required deposits, shall issue a formal order of recognition.
13. A reading of the above process would show that there has to be coordination and cooperation between the NCTE, the State Government, and the affiliating body, in the process for grant of recognition. However, it is the sole discretion and function of the NCTE to grant or refuse to grant recognition. The State Government and/or the affiliating body are merely to assist the decision making process of the NCTE however, the State Government cannot arrogate to itself such decision making power, or gain primacy in the process.
14. How far the State Government can interfere in the grant of recognition to the institutions was considered by the Supreme Court in Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Others (supra), wherein it was held as under:
64. Even otherwise, in our opinion, the High Court was fully justified in negativing the argument of the State Government that permission could be refused by the State Government on “policy consideration”. As already observed earlier, policy consideration was negatived by this Court in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v. State of T.N., (1996) 3 SCC 15: JT (1996) 2 SC 692 as also in Jaya Gokul Educational Trust v. Commr. & Secy. to Govt. Higher Education Deptt., (2000) 5 SCC 231: JT (2000) 5 SC 118. xxx
68. In view of the fact, however, that according to us, the final authority lies with NCTE and we are supported in taking that view by various decisions of this Court, NCTE cannot be deprived of its authority or power in taking an appropriate decision under the Act irrespective of absence of no-objection certificate by the State Government/Union Territory. Absence or nonproduction of NOC by the institution, therefore, was immaterial and irrelevant so far as the power of NCTE is concerned. xxx
74. It is thus clear that the Central Government has considered the subject of secondary education and higher education at the national level. The Act of 1993 also requires Parliament to consider teacher-education system “throughout the country”. NCTE, therefore, in our opinion, is expected to deal with applications for establishing new BEd colleges or allowing increase in intake capacity, keeping in view the 1993 Act and planned and coordinated development of teacher-education system in the country. It is neither open to the State Government nor to a university to consider the local conditions or apply “State policy” to refuse such permission. In fact, as held by this Court in cases referred to hereinabove, the State Government has no power to reject the prayer of an institution or to overrule the decision of NCTE. The action of the State Government, therefore, was contrary to law and has rightly been set aside by the High Court.” (emphasis supplied)
15. In Chairman, Bhartia Education Society and Anr. vs. State of Himachal Pradesh and Ors., (2011) 4 SCC 527, the Supreme Court on examination of the scheme of the Act, held that the purpose of „recognition‟ and „affiliation‟ is different. The examining body does not have any discretion to refuse affiliation with reference to any of the factors which may be considered by the NCTE while granting recognition, including the adequacy of financial resources, accommodation, library, qualified staff, etc. However, this does not mean that the examining body cannot require compliance with its own requirements, in regard to eligibility of candidates for admissions to courses, or manner of admission of students, or other areas falling within the sphere of the State Government and/or the examining body.
16. In Maa Vaishno Devi Mahila Mahavidyalaya vs. State of Uttar Pradesh and Ors., (2013) 2 SCC 617, the Supreme Court again emphasized that the NCTE Act is a special act and has to receive precedence over other laws in relation to the field of teacher training education. The role of other bodies is consequential upon grant and/or refusal of recognition of institution by the NCTE. The NCTE is the supreme body and is vested with wide powers to be exercised with the aid of its expertise, in granting or refusing to grant recognition to an educational institution. It is the paramount body for granting the approval/recognition. It was further held that while grant of recognition is a basic requirement for grant of affiliation, it cannot be said that affiliation is insignificant or a mere formality on the part of the examining body. A balance has to be struck between the role played by the NCTE, on the one hand, and the affiliating body and the State Government, on the other. The affiliating body, however, has to act within the fundamentals of Section 14 of the Act, and cannot overreach the NCTE. The Supreme Court held that, “the opinion of the State, therefore, has to be read and construed to mean that it would keep the factors determined by the NCTE intact and then examine the matter for grant of affiliation. The role of the State Government is minimised at this stage which, in fact, is a second stage. It should primarily be for the university to determine the grant or refusal of affiliation and role of the State should be the bare minimum, non-interfering and non-infringing”.
17. From the reading of the above judgment it is apparent that though there is difference between „recognition‟ and „affiliation‟, with the role of grant of recognition being assigned to NCTE, while the role of affiliation being assigned to the affiliating body, the power of the State Government and the affiliating body is always subordinate to that of NCTE. Even at the stage of grant of „affiliation‟, the State Government/affiliating body cannot undermine the position of the NCTE, and refuse to grant affiliation to the institution on the very same grounds, that have already been scrutinized by, and otherwise fall within the domain of NCTE.
18. From the reading of the above judgments, it is clear that the State Government cannot cause hindrance to the grant of recognition to the institutions on „policy consideration‟. Therefore, the submission of Dr.Singhvi, the learned senior counsel, that the State of Rajasthan has taken a policy decision not to grant any new affiliation to the institutions cannot be accepted to defeat the right of the Respondent Institutes to grant of recognition by the NCTE. It is for the NCTE to grant, or refuse, recognition to the respondent-institutes upon satisfaction of all the norms laid down for this purpose. The State Government, though is to be consulted, cannot cause an impediment in such process. The State Government can place for its consideration, before the NCTE its concerns, but the ultimate decision after consideration of all such concerned lies with the NCTE.
19. The NCTE under Regulation 7(13) of the Regulations requests the institution and the affiliating body to grant assistance to the institutions to ensure that the faculty is appointed as per the policy of the State Government, or the University Grants Commission, or the University that grants affiliation. The State Government cannot refuse to appoint an expert in the Selection Committee for appointment of such faculty, thereby causing an hindrance in the consideration of the application of the Institutions for grant of recognition. To accede such liberty to the State Government, would bestow upon them a veto power which the above referred judgments of the Supreme Court have clearly rejected.
20. We cannot also agree with the challenge laid by the NCTE to the Impugned Judgment. As noted hereinabove, it is the function of the NCTE to grant or refuse grant of recognition to the applicant-institutions. For processing the applications of the institutions for grant of such recognition, the NCTE has laid down the process which, inter alia, includes making a request to the State Government and the affiliating University to appoint an expert to the Selection Committee for the appointment of staff and faculty by the applicant-institutions. In case the State Government or the affiliating University refuses to appoint such expert, NCTE cannot be left helpless, nor can such a situation act to the detriment of the respondent-institutes. Just like-in absence of an NOC from the State Government, as is required under Regulation 5(3) of the Regulations, the NCTE must process the application of the applicantinstitute, in case of the refusal of the State Government to appoint an expert in the Selection Committee for the faculty, the NCTE must proceed with the process of grant of recognition, and cannot raise its hands and/or claim helplessness on the refusal of the State Government to discharge its functions under the Regulations. The learned Single Judge has, therefore, rightly held that in case the State of Rajasthan refuses to perform its functions, in spite of the direction of the Court, the NCTE must proceed with the application of the respondent institutions, even if this requires the NCTE to exercise its powers of granting relaxation to the Regulations in terms of Regulations 12 of the Regulations.
21. Regulation 12 of the Regulations is reproduced hereinunder:
22. The power to relax the rigors of the Regulations can, therefore, be exercised on the recommendation of the Central Government/State Government/Union Territory Administration or “in cases for removal of any hardship caused in adhering to the provisions in these regulations, keeping in view the circumstances peculiar to the said Governments or Union territory”. It can also be exercised “in exceptional cases”. The failure or refusal of the State of Rajasthan to adhere to and perform functions bestowed upon it under the Regulations would certainly be one of such circumstance in which the Chairperson of the NCTE would be justified to, and rather bound to exercise the power to relax adherence to the provision of the Regulations. It would also be a case of “exceptional cases” wherein the Chairperson shall exercise the powers to relax the provisions of these Regulations, and the related norms and standards.
23. The above finding, however, would not give an excuse to the State Government not to comply with the direction issued by the learned Single Judge, and/or act as an excuse not to perform the functions bestowed upon it under the Regulations. The State Government or its officers would remain liable to be proceeded against, in case it refuses to comply with the directions issued by the learned Single Judge and as affirmed by this Court. We clarify that the directions issued by the learned Single Judge to the State of Rajasthan are mandatory, and do not leave the State with the option of not complying with the same. Non compliance of the same shall be at the pain of prosecution for contempt of Court-not only of the judgment of the learned Single Judge, but also of this judgment.
24. In view of the above, we find no merit in the present set of appeals. The same are, accordingly, dismissed. There shall be no order as to costs.
NAVIN CHAWLA, J VIPIN SANGHI, ACJ APRIL 20, 2022/rv/U/AB.