(Prayer:- Writ Appeal against the order dated 28.10.2008 in W.P.No.35182 of 2008 on the file of this Court.)

K.K. SASIDHARAN, J

1. The substantial question which arises for determination in this writ appeal is whether the State being the affiliating body, can refuse affiliation with reference to any of the factors which have been considered by the National Council for Teacher Education while granting recognition to the Private Self Financing Teacher Training Institutes.

2. The writ appeal, at the instance of the Self-Financing Private Teacher Training Institutes Association, Chennai, challenges the order dated 28 October 2008 in W.P.No.25182 of 2008 whereby and whereunder, the learned Single Judge negatived the challenge made to the Government Order in G.O.Ms.No.94 dated 3 May 2008 prescribing regulations for the purpose of granting Affiliation to the Teacher Training Institutes.

The relevant facts:

3. The appellant is a registered association formed by the Self-Financing Private Teacher Training Institutes. The association was formed for the purpose of promoting the cause of Teacher Training Institutes in the State of Tamil Nadu and to safeguard the interest of individual members.

4. The members of the association after obtaining recognition from the National Council for Teacher Education to conduct Teacher Training Course leading to Diploma in Teacher Education, obtained permission from the Director of Teacher Education, Research and Training so as to enable the students to appear for the Diploma in Teacher Education Examination conducted by the said authority.

5. While so, the State of Tamil Nadu issued an order in G.O.Ms.No.94, School Education (U1) Department dated 3 May 2008 prescribing certain guidelines in the matter of grant of Affiliation. The said Government Order was made applicable to new institutions as well as to the existing institutions. The Government Order was challenged by the appellants and the individual institutions on various grounds. The Principal grounds as found in the affidavit filed in support of the Writ Petition in W.P.No.25182 of 2008 reads thus:

(a) The impugned Government Order issued in exercise of the Executive Power of the State Government is traceable to Article 162 of the Constitution of India. Since the field is already occupied by the Central Legislation, the Government have no authority either to pass a Legislation or to issue an Executive Order.

(b) The National Council for Teacher Education Act 1993 (hereinafter referred to as "NCTE Act") has been enacted by the Indian Parliament under its law making power as provided under Article 245 of the Constitution of India. The Parliament has enacted NCTE Act to provide for the establishment of National Council for Teacher Education with a view to achieve planned and co-ordinated development of Teacher Education System throughout the Country.

(c) Though education is included under Entry 25 of List III, otherwise known as Concurrent List, the State has no authority to issue the Executive Order as the field is occupied by a Central Legislation.

(d) Section 14 of the NCTE Act gives authority to the Regional Committee of National Council for Teacher Education to grant recognition. Therefore, it was not open to the State to frame Regulations for the purpose of inspecting the instructional and infrastructural facilities, as the same has already been inspected by the National Council for Teacher Education before granting recognition.

(e) The Executive Power under Article 162 of the Constitution of India is not available in respect of a subject, which is already covered by a Central Legislation.

(f) Instructional and Infrastructural facilities to be acquired by an institute imparting Teacher Education relates to the standards of education and therefore, that comes totally within Entry 66 of List-I of Schedule VII of the Constitution.

(g)Since the very standard of education in the field of Teacher Education is completely covered under Entry - 66 within the domain of the Central Authority, inroading and encroaching upon in the said field is totally prohibited.

(h) The State Government wanted to take away the power from the National Council for Teacher Education by assuming themselves the power to deal with the Teacher Education Institutions, including power of inspection, verification of norms and standards, infrastructural and instructional facilities and to monitor the functioning of concerned institutions. If all these functions and powers are usurped by the State Government without any Legislation, the very enactment made by the Parliament under Schedule VII of the Constitution of India becomes totally meaningless.

(i) The State cannot be treated as an Affiliating Body as the very "Affiliation" used under Section 2(d) and 14(6) is relatable to an independent Affiliating Body like University. This distinction is possible because the University has been created either by an Act of Parliament or by an Act of Legislature.

(j) The Universities are specially empowered to grant affiliations to the institutions for the purpose of admission into examinations and awarding degree. However, the Director of Teacher Education, Research and Training is only an administrative head of a department and it was not created by any Legislation for the purpose of granting affiliation. Therefore, the Government cannot issue Regulations treating it as an Affiliating Body.

The Defence

6. The Joint Secretary to Government, School Education Department filed a counter affidavit in all the writ petitions. The substantial contentions raised in the counter affidavit reads thus:

(a) The Examining Body is vested with the power of granting affiliation to the recognised Teacher Training Institutes. Therefore, the Government was well within its authority to frame guidelines in the matter of granting affiliation.

(b) Ever since the implementation of NCTE Act, no guidelines were framed with regard to the grant of affiliation to Private Teacher Training Institutes. The said mistake was repeatedly pointed out by the High Court in a number of cases and therefore, it has become necessary to the State Government to frame guidelines for grant of affiliation to the Self Financing Teacher Training Institutes.

(c) The inspection conducted by the Examining Body found that the institutions were housed in asbestos roofed, tiled roofed and thatched roofed buildings and in certain cases institutions were found running in Marriage Halls and Residential Houses. Therefore, the Government was constrained to issue guidelines to ensure that the institutions are run in strict conformity with the provisions of NCTE Act.

The Judges reasoning:

7. The learned Judge rejected the contentions raised by the appellant and other writ petitioners mainly on the following grounds:

(a) The impugned Government Order has been issued within the four corners of Law by the State and it does not suffer from any constitutional infringement of the Centres powers.

(b) There is no repugnancy in the matter, inasmuch as the Government Order does not encroach upon the field occupied by the Central Legislation.

(c) Since the State has power to grant affiliation only on fulfillment of conditions of recognition indicated by NCTE, it cannot act like a rubber stamp.

(d) In the matter of Teacher Training Institutes, the NCTE and the State authorities will have to co-exist in the interest of academic excellence and to prevent mushroom growth of fly by night institutes.

(e) This State Government which will have to bore the brunt of anger of the students or the parents or the general public in case there goes any amiss and as such, the State was expected to regulate the very system of Teacher Education in so far as the process of affiliation is concerned.

8. Dissatisfied with the order passed by the learned Single Judge, the Self-Financing Private Teacher Training Institutes Association has come up with this writ appeal.

Summary of submissions:

9. The learned Senior Counsel for the appellant re-iterated the submissions made before the learned Single Judge. According to the learned Senior Counsel, the member institutes have obtained recognition from the National Council for Teacher Education and they were affiliated to the Examining Body. Therefore, to make those institutes to apply once again would amount to duplication of procedure. The existing institutes have satisfied the norms regarding instructional and infrastructural facilities as provided under NCTE Act and as such it was not open to the State Government to inspect those facilities once again. It was further contended that the State is not entitled to pass a Legislation in the occupied field. When the State has no power even to legislate, the question of issuing the Government Order invoking Article162 of the Constitution of India does not arise. It was further contended that under the guise of Affiliation, the attempt of the State was to consider the matter once again, even though NCTE was satisfied about the facilities before granting recognition.

10. The learned Additional Advocate General justified the Government Order on various grounds. According to the learned Additional Advocate General the inspection carried out by the department found that some of the institutes were located inside Industries, Marriage Halls and Auditorium and those institutes are not having the required instructional and infrastructural facilities. Therefore, as an Affiliating Body, the Government thought it fit to frame certain guidelines. Those guidelines issued by the State in its capacity as Affiliating Body cannot be characterised as a Regulation made in an Occupied Field. It was his further contention that similar attempts were made by the Association earlier when the Government have passed orders to streamline the cause of Teacher Education. The learned Additional Advocate General challenged the maintainability of the Writ Appeal, as according to him, most of the member institutes have accepted the order and as such, it was not open to the Association to challenge the order passed by the learned Single Judge.

The legislative Background:

11. The preamble to the Government Order in G.O.Ms.No.94, School Education (U1) Department dated 30 May 2008 indicates the factors which actually weighed with the Government to issue the impugned Order. The preamble reads thus:

"G.O. (Ms).No.94 Date: 3.05.2008,

Read:

1. G.O. (Ms).No.232, S.E., Dated:17.06.1998.

2. G.O. (Ms).No.108, S.E. (U1). Dept., dt:17.05.2007.

3. From the DTERT Lr.Rc.No.1865/C3/2008, dt:7.02.2008, 28.02.2008, 4.03.2008 and 11.04.2008.











-ORDER:

In the letters third read above, the Director of Teacher Education Research and Training has stated that the Private Teacher Training Institutes in the State who have obtained recognition from the Southern Regional Committee, National Council for Teacher Education, Bangalore send proposals through the Principal of the District Institutes of Education and Training concerned to the Director of Teacher Education Research and Training seeking approval to the staff list of those Institutions. On examining these proposals it is noted that certain persons appointed in a particular Teacher Training Institute are included in the staff list of another Teacher Training Institute also. Therefore, whenever such instances of a person who is shown in the approved staff list is found in the staff list seeking approval in respect of another Institute, such staff list proposals are returned to the Institutes stating that one person cannot simultaneously work in two Institutes. Besides, there are also a large number of instances wherein bogus experience certificates are produced by the Institutes with an ulterior motive of getting approval for the staff list. In the absence of countersignature by the departmental officers concerned the experience certificates are not accepted for want of genuineness. When the proposals for staff lists are returned for the above reasons, such orders are challenged before the Honble High Court. The Honble High Court in many cases has pointed out that as no guidelines prescribing the procedure have been issued by Government, returning the proposal pointing out the above nature of deficiency is not sustainable. The Director of Teacher Education Research and Training has also stated that in the above context it has become necessary to frame certain Guidelines governing the procedures for grant of approval for the staff list by the Director of Teacher Education Research and Training. Further, he has also stated that in respect of colleges offering B.Ed., and M.Ed., courses after getting recognition from NCTE, the Universities concerned in Tamil Nadu are granting affiliation to such colleges, only after which the colleges concerned are entitled to make admission of students.

2. The Director of Teacher Education, Research and Training has therefore requested that Government may contemplate empowering the DTERT to grant Affiliation to the recognised Self-Financing Private Teacher Training Institutes by laying down certain norms therefor. The DTERT has also submitted a Draft Guidelines prescribing conditions for grant of affiliation, grant of approval for staff list, approval for list of students, attendance and condonation, visits to institutes and conduct of Diploma in Teacher Education exams and award of Diploma etc.,

3. After careful consideration of the draft guidelines sent by the Director of Teacher Education Research and Training, the Government hereby issue the following guidelines which shall come into force with immediate effect:"

12. The appellant is mainly aggrieved by Resolution I and II applicable to both New Teacher Training Institutes and existing Private Teacher Training Institutes. The impugned provisions read thus:

"I. CONDITIONS FOR GRANT OF AFFILIATION TO NEW TEACHER TRAINING INSTITUTES:

1. The Application for Affiliation and Staff list Approval for the academic year should be submitted direct to the Directorate of Teacher Education, Research and Training, Chennai-600 006 in duplicate on or before 31st May of the year for which Affiliation is sought.

2. A Self-Financing Private Teacher Training Institute, seeking Affiliation and approval for Staff List from the DTERT, Chennai-6 should submit the

Application in the Form prescribed in Annexure-I to Annexure- VI duly enclosing a copy of the Recognition order granted by the Southern Regional Committee, National Council for Teacher Education, Bangalore. All applications for Affiliation and Staff list Approval shall be processed and final decision, either granting Affiliation / Approval to staff list OR refusing the same shall be communicated to the institute concerned by 20th June of that year.

3. Affiliation fee for D.T.Ed., course shall be Rs.25,000/-. (Rupees twenty five thousand only). This amount shall be remitted into the Treasury under the following head of account and the original Chalan should be attached to the Application:

0202 - Education, Sports, Art & Culture - 01 - General Education - 600 General - AG - Collection of Affiliation fees in respect of Self Financing Private Teacher Training Institutes.

[DPC 0202 01 600 AG 0009]

4. On receipt of Application for grant of Affiliation, the Director of Teacher Education Research and Training will instruct the Inspection Committee, consisting of the following officers to take up inspection of the applicant institute:

i. Principal of the District Institute of Education and Training of the District concerned - Convener.

ii. Revenue Divisional Officer of the division concerned or his / her nominee - Member

iii. Executive Engineer, PWD of the District concerned or his / her nominee - Member.

iv. Chief Educational Officer of the District concerned - Member.

5. The following Documents/Certificates should be produced/should be made available to the Inspection Committee for scrutiny:

i. Original Trust/Society Deed indicating the member of the Trust / Society.

ii. Original Land Documents.

iii. Original Building approval plan.

iv. List of equipments available and requirement as per syllabus.

v. Building Completion Certificate.

vi. Phase wise Plan of Construction.

vii. Availability of Water.

viii. Availability of Sanitation.

ix. Building Licence, Stability Certificate

x. Fire Protection Certificate

xi. Colour photographs indicating the following:

a. Front portion of the entire building in close view.

b. Back side of the entire building in close view.

c. Internal portion of atleast one class room

d. Internal portion of entire Institute with name board in close view.

e. Internal Portion of library room.

xii. Classification of land - Agricultural, Industrial or Residential.

xiii. Availability of power supply and electrical connection as per norms.

xiv. Whether the building constructed is with reference to the approved building plan

xv. Hostel facility if any.

xvi. List of Teaching and Non-teaching staff.

6. On receipt of the report from the Inspection Committee and after satisfying that the conditions of affiliation are fulfilled, Affiliation will be granted, by the DTERT., Chennai-6, the authority competent to grant Affiliation in terms of section 14 (6) (a) of the Central Act 73 of 1993 and Affiliation will be cancelled where recognition has been refused by NCTE in terms of Sub-Section (b) of Section 14 (6) of the Central Act 73 of 1993.

7. In the case of non-compliance or non-fulfillment of one or more conditions, a report will be sent to the Southern Regional Committee, National Council for Teacher Education, Bangalore, regarding the factual position and Affiliation will be deferred till reply is received from the Southern Regional Committee.

8. As per Clause 8 (10) of NCTE Regulations, dated:27.12.2005 and Notified on 13.01.2006 and as per Clause 8 (12) of NCTE Regulations dated:10.12.2007 the students shall not be admitted without affiliation.

II. AFFILIATION IN RESPECT OF EXISTING PRIVATE TEACHER TRAINING INSTITUTES:

1. The Educational Agency of every Teacher Training Institute which is a Private Teacher Training Institute and in existence on the date of publication of the Guidelines in the Tamil Nadu Government Gazette, shall before the expiry of Six months from that date make an application to the competent authority, viz, the DTERT., Chennai-6 for affiliation to continue to run such Institute.

2. Every such application shall:

(a) be in the prescribed form (Annexure-I to Annexure- VI)

(b) be accompanied by such fee not exceeding Rs.5,000/- (Rupees Five Thousand only) to be remitted into the Treasury under the following head of account and the original Chalan should be attached to the application:

0202 - Education, Sports, Art & Culture - 01 - General Education - 600 General - AG - Collection of Affiliation fees in respect of Self Financing Private Teacher Training Institutes.

[DPC 0202 01 600 AG 0009] "

The core issue:

13. The basic question is whether the impugned Government Order would amount to State interference in the field occupied by the Central Legislation.

14. The principal contention of the appellant pertains to the repugnancy between the Central Act and the Executive Order made by the State Government invoking Article 162 of the Constitution of India. Therefore, we may set out the relevant provisions of the NCTE Act and the impugned order.

The Legal Framework:

NCTE Act and Regulations:

15. The preamble to the National Council for Teacher Education Act, 1993 says that the Act was enacted with a view to achieve planned and co-ordinated development of the Teacher Education system throughout the Country, the regulation and proper maintenance of norms and standards in the Teacher Education System and for matters connected therewith.

16. Section 2(d) of NCTE Act defines "Examining Body:

"Examining Body" means a University, agency or authority to which an institution is affiliated for conducting examinations in teacher education qualifications."

17. Chapter IV of NCTE Act, 1993 deals with recognition of Teacher Education Institutions. Section 14 reads thus:

"RECOGNITION OF TEACHER EDUCATION INSTITUTIONS

14. RECOGNITION OF INSTITUTIONS OFFERING COURSE OR TRAINING IN TEACHER EDUCATION:

(1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day, may, for grant of recognition under this Act, make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations:

Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee.

(2) The fee to be paid along with the application under sub-section (1) shall be such as may be prescribed.

(3) On receipt of an application by the Regional Committee 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 has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulations, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or

(b) if it is of the opinion that such institution does not fulfil the requirements laid down in sub-clause (a), pass an order refusing recognition to such institution for reasons to be recorded in writing:

Provided that before passing an order under sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a written representation.

(4) Every order granting or refusing recognition to an institution for a course or training in teacher education under sub-section (3) shall be published in the Official Gazette and communicated in writing for appropriate action to such institution and to the concerned examining body, the local authority or the State Government and the Central Government.

(5) Every institution, in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under clause (b) of sub-section (3).

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

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

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

18. Section 14(6) mandates that every Examining Body shall, on receipt of the order of recognition under sub-section (4) shall grant affiliation to the institution, where recognition has been granted or cancel the affiliation, where recognition has been refused.

19. Section 32 enables the NCTE to make Regulations. In exercise of the said power, NCTE framed regulations laying down the procedure for grant of recognition to various teacher training programmes. The norms for such training programmes were later revised. Finally, in supersession of the regulations framed earlier, NCTE framed comprehensive regulations in the name and style of "National Council for Teacher Education [Recognition norms and procedure] Regulations, 2007 and it was notified on 27 November 2007.

20. The National Council for Teacher Education Regulations, 2007 [hereinafter referred to as NCTE Regulations] provides for the manner of making application for recognition, time limit, eligibility, processing fees, processing of applications, consultation with the State Government /Union Territory, inspection of instructional and infrastructural facilities by the team of experts and the ultimate consideration by the Regional Committee of NCTE.

21. Regulation 8 deals with conditions for grant of recognition. As per this provision, Institutes must fulfil all the prescribed conditions relating to norms and standards as prescribed by the NCTE for conducting the course or training in teacher education. These norms, inter-alia cover conditions relating to financial resources, accommodation, library, laboratory, other physical infrastructure, qualified staff including teaching and non-teaching personnel, etc. Regulation 8(7) provides that no institution shall be granted recognition unless it is in possession of required land on the date of application. The land should be free from all encumbrances and it could either be on ownership basis or on lease from Government/Government Institutions for a period of not less than 30 years.

22. Regulation 8(8) and 8(9) mandates that the institution/society shall furnish affidavit in the prescribed form duly attested by Oath Commissioner/ Notary Public stating the precise location of the land, (village, district, state etc.) the total area in possession and the permission of the competent authority to use the land for educational purposes, mode of possession i.e. ownership or lease. Application shall be accompanied by the certified copy of the land ownership/lease documents. Regulation 8(9) provides that in case it is found that the contents of the affidavit are incorrect or false, the society/trust or the institution concerned shall be liable for action under the relevant provisions of Indian Penal Code and other relevant laws.

23. Regulation 8(10) mandates that at the time of inspection, the building of the institution shall be complete in the form of a permanent structure on the land possessed by the institution in terms of Regulation 8(7), equipped with all necessary amenities and fulfilling all such requirements as prescribed in the norms and standards. Besides this, the applicant institution shall produce the original completion certificate, approved building plan in proof of the completion of the building and built up area and other documents to the visiting team for verification. No temporary structure/asbestos roofing shall be allowed.

24. Regulation 8(11) deals with change of premises. It provides that in case of change of premises, prior approval of the Regional Committee concerned shall be necessary which could be accorded after due inspection of the institution at the new site. Regulation 8(12) provides that institution shall make admission only after it obtains order of recognition from the Regional Committee concerned under Regulation 7(11) and affiliation from the examining body. Regulation 8(16) mandates that the institution shall maintain records/registers and other documents etc. which are essential for running an educational institution especially those prescribed in the relevant norms and standards and guidelines/institutions/ rules etc. of the Central/State/UT Governments, affiliating/examining bodies.

25. Regulation 9 deals with norms and standards for various teacher education courses, as indicated in the appendices 1 to 12. Respective norms deals with duration, working hours, working days, intake, eligibility, admission procedure, staff - viz., academic, technical and administrative, including their qualifications, manner and mode of appointment, terms and conditions of service, infrastructural and instructional facilities, amenities and curriculam transaction.

26. NCTE regulations prescribed separate norms and standards for each courses viz., Pre-school education leading to Certificate in Education (C.Ed); Elementary Teacher Education programme leading to Bachelor of Elementary Education (B.EI.Ed) Degree; Secondary Teacher Education Programme leading to Bachelor of Education (B.Ed). Degree; Master of Education programme leading to Master of Education (M.Ed.) Degree; Master of Education (Part Time) Programme leading to Master of Education [M.Ed.] Degree; Certificate in Physical Education Programme leading to Certificate in Physical Education (C.P.Ed.); Bachelor of Physical Education Programme leading to Bachelor of Physical Education (B.P.Ed) Degree; Master of Physical Education Programme leading to Master of Physical Education (M.P.Ed.) Degree; Bachelor of Physical Education Four Years B.P.Ed Programme (Integrated) leading to Bachelor of Physical Education (B.P.Ed.) (Integrated) Degree; Elementary Teacher Education Programme through open and Distance Learning System leading to Bachelor of Education (B.Ed.) Degree and Master of Education Programme through Open and Distance Learning System leading to Master of Education (M.Ed.) Degree.

27. The NCTE Act and the Regulations made thereunder shows that the Parliament has made a comprehensive enactment covering the entire sphere of teacher education.

28. We may now examine the guidelines framed by the Government for the purpose of granting affiliation.

State Regulations :

29. Regulation I deals with conditions for grant of affiliation to new Teacher Training Institutes. This provision mandates that self-financing Private Teacher Training Institutes seeking affiliation and approval for Staff List should submit the application in the form prescribed in Annexure I to Annexure VI duly enclosing a copy of the Recognition order granted by the Southern Regional Committee, National Council for Teacher Education, Bangalore. Regulation 1(4) provides for constitution of a committee comprising of Principal of the District Institute of Education and Training of the District concerned, Revenue Divisional Officer of the Division concerned or his/her nominee; Executive Engineer, PWD of the District concerned or his/her nominee and Chief Educational Officer of the District concerned. Regulation 1(5) deals with the documents to be produced by the Institution to the Inspection Committee for scrutiny. Regulation 1(6) provides that on receipt of the report from the Inspection Committee and after satisfying that the conditions of affiliation are fulfilled, affiliation would be granted by the Director of Teacher Education Research and Training, [hereinafter referred to as DTERT]. Regulation 1(7) provides that in case of non-compliance or non-fulfillment of one or more conditions, a report would be sent to the Southern Regional Committee, National Council for Teacher Education Bangalore, regarding the factual position and Affiliation will be deferred till reply is received from the Southern Regional Committee.

30. Regulation II deals with affiliation in respect of existing Private Teacher Training Institutes. This provision mandates that the Educational Agency of every Teacher Training Institute which is a Private Teacher Training Institute and in existence on the date of publication of the Guidelines in the Tamil Nadu Government Gazette, shall before the expiry of six months from that date should make an application to the Competent Authority viz., the DTERT, Chennai 6 for affiliation to continue to run such institute. Such application shall be in the prescribed form (Annexure I to Annexure VI). Annexure 1 to VI deals with instructional and infrastructural facilities to be made available in the institution.

31. Therefore, a cumulative reading of Regulation I and II and Annexure I to VI makes the position clear that the Institutes should possess all the Instructional and Infrastructural Facilities as a condition precedent for grant of affiliation.

32. Regulation III provides for grant of approval to the Staff List. Regulation IV, V, VI deals with admission of students, attendance and condonation and visits to institutes. Regulation VI gives wide powers to the Principals of DTERT or any authority authorized by him in that behalf to make visits to the self-financing Private Teacher Training Institutes to ensure that the staff employed in the Institute, as approved by the Director of Teacher Education Research and Training are actually in position and that the work relating to imparting instruction to the teacher trainees is taken up in accordance with the syllabus as prescribed by Government to achieve the object of qualitative education to the teacher-trainees. It also provides that during the visit by the Director or his Subordinate officers or Principals of DIETs, if any lapse or deficiency is noticed, it shall be reported to the Southern Regional Committee, National Council for Teacher Education to proceed against the institute under Section 17 of the Central Act.

33. The impugned Regulation Nos.I and II deals with instructional and infrastrutural facilities. NCTE regulations also deal with those facilities. It was only after satisfying the eligibility criteria pertaining to instructional and infrastrctural facilities, NCTE granted recognition to the institutions. The impugned regulations provide for inspection of such facilities once again at the instance of the State.

34. The learned Senior Counsel for the appellant produced a comparative chart indicating the requirements under NCTE Act and the corresponding regulations framed by the Government. The learned Additional Advocate General has also produced a similar table. Both the learned counsel were unanimous in their opinion that except the requirements regarding building structural stability certificate and no objection certificate from the Fire and Rescue Department, the other requirements were already satisfied by the institutions and such facilities were inspected by the NCTE before granting the order of recognition.

35. Section 14 (3) of the NCTE Act deals with jurisdiction of the Regional Committee of National Council for Teacher Education to consider the application for recognition. Section 20 of the NCTE Act gives details about the composition of the Regional Committee. Section 20(3) reads as follows :

20. Regional Committees:

(3) The regional Committee shall consist of the following members, namely:

(a) a Member to be nominated by the Council;

(b) one representative from each of the States and the Union Territories of the region, to be nominated by the respective States and the Union Territories;

(c) such number of persons, having special knowledge and experience in matters relating to teacher education, as may be determined by regulations.

36. So, it is clear that a representative of the State is already there in the Regional Committee. The application for recognition would be considered only by the said Committee. The Committee, before considering the application for recognition, deputes an expert team to inspect the instructional and infrastructural facilities. The report submitted by the expert team would be considered by the Regional Committee and a decision would be taken, either to grant or refuse recognition. Therefore, the State is very much a party to the process of recognition. In such circumstances, there is no point in conducting a fresh inspection to ensure the availability of instructional and infrastrucutural facilities. The nomination of representative in the committee is made only by the concerned State or Union Territory. Therefore, the participation of the representative is deemed to be the participation of the State. When the very recognition is granted by the Regional Committee, which comprises of experts and a representative of the State, there is no logic behind the inspection of instructional and infrastructural facilities by the State as an Affiliating Body at a later point of time.

Repugnancy and Concept of "Occupied Field":

37. There is no dispute that the subject education comes under the Concurrent List. Therefore, the Union as well as the States are entitled to legislate on the subject. The subject education is included in Entry 25 of List III meaning thereby, besides Union Government, the State also can pass appropriate Legislation in the matter. The parliament in its wisdom enacted the National Council for Teacher Education Act 1993. Therefore, it is not open to the State to pass a Legislation, which would run contra to the Central Legislation. Article 254(1) gives an overriding effect to the Law made by the parliament, in case the Parliament is empowered to enact a Law in respect of any of the matters enumerated under List III. Therefore, if a particular Legislation made by the State is repugnant to the Law made by the Parliament, the concerned Legislation made by the State would be declared as void to the extent of repugnancy.

38. Section 14(6) of the NCTE Act was interpreted by the Educational Institutions as a statutory direction to the Affiliating Body to grant affiliation as a Rule of Thumb. The Courts have also taken different views in the matter. This divergent views resulted in making a reference to the Full Bench.

THE EARLIER AUTHORITIES:

39. The Full Bench of this Court in Rukmani College of Education {(2008(1) MLJ 1217} concluded that affiliation by the University is not automatic and the University is not bound to grant affiliation as a matter of course.

40. The Supreme Court in State of Orissa v. M.A. Tulloch & Co (AIR 1964 SC 1284 [LQ/SC/1963/191] ) explained the concept of repugnancy thus:

Repugnancy arises when two enactments both within the competence of the two legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance.

41. In State of Tamil Nadu v. Adhiyamanedu & Research Institute (1995(4) SCC 104) the issue before the Supreme Court was whether the provisions of the University Act regarding affiliation of Technical colleges like Engineering colleges and the conditions for grant and continuation of such affiliation would remain operative after the commencement of All India Council for Technical Education Act, 1987.

42. The Supreme Court in Adhiyamanedu & Research Institute compared the Central Act and the University Act and Statutes and held that insofar as the norms regarding admission of students, inspecting or causing to inspect colleges, for withholding or discontinuing of grants in respect of courses and programmes, declaring institutions at various levels and types fit to receive grants, to evolve suitable performance appraisal systems, incorporating norms and mechanisms for maintaining accountability of the technical institutions, laying down norms and standards for courses, curricula, staff pattern, staff qualifications, assessment and examinations, fixing norms and guidelines for charging tuition fee and other fees, granting approval for starting new technical institutions or introducing new courses or programmes, to lay down norms or granting autonomy to technical institutions etc., it is not the University Act but it is the Central Act and the Council constituted under the Central Act alone will have jurisdiction. The Supreme Court further held that conditions that are prescribed by the University for grant of affiliation will have to be in conformity with the norms and guidelines prescribed by the All India Council for Technical Education.

43. In State of Orissa vs. M.A.Tulloch and Co., [AIR 1964 SC 1284 [LQ/SC/1963/191] ], the Supreme Court indicated that repugnancy may arise between two enactments even though obedience to each of them is possible without disobeying the other. The observation reads thus :

"Repugnancy arises when two enactments both within the competence of the two legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance".

44. The policy decision taken by the State of Maharashtra not to issue no objection certificate to any institution for starting new B.Ed. College for the academic year 2005-06 was challenged before the High Court of Bombay. The High Court held that in the light of the provisions of NCTE Act, the appropriate authority to take decision regarding opening of new colleges was NCTE and neither the State nor the University can act contrary to the decisions of NCTE. The Supreme Court while dealing with the appeal filed by the State against the said decision in State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra [(2006) 9 SCC 1] [LQ/SC/2006/286] , considered the earlier judgments on the point and indicated the primacy of Central Legislation thus:

62. From the above decisions, in our judgment, the law appears to be very well settled. So far as coordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and the State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as the State Legislatures and appropriate Act can be made by the State Legislature subject to limitations and restrictions under the Constitution.

63. In the instant case, admittedly, Parliament has enacted the 1993 Act, which is in force. The preamble of the Act provides for establishment of National Council for Teacher Education (NCTE) with a view to achieving planned and coordinated development of the teacher-education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher-education system and for matters connected therewith. With a view to achieving that object, the National Council for Teacher Education has been established at four places by the Central Government. It is thus clear that the field is fully and completely occupied by an Act of Parliament and covered by Entry 66 of List I of Schedule VII. It is, therefore, not open to the State Legislature to encroach upon the said field. Parliament alone could have exercised the power by making appropriate law. In the circumstances, it is not open to the State Government to refuse permission relying on a State Act or on policy consideration.

Recent Judgment

45. Most recently in Chairman, Bharrtia Education Society and another vs. State of Himachal Pradesh and Ors. [2011 (3) Scale 48 [LQ/SC/2011/191] ], the Supreme Court considered the limited jurisdiction of the State as an affiliating body in the light of the recognition granted by NCTE after satisfying itself about the instructional and institutional facilities available in the concerned institution. It was held as follows:

"17. Sub-section (6) of section 14 no doubt mandates every examining body to grant affiliation to the institution on receipt of the order of NCTE granting recognition to such institution. This only means that recognition is a condition precedent for affiliation and that the examining body does not have any discretion to refuse affiliation with reference to any of the factors which have been considered by the NCTE while granting recognition. For example, NCTE is required to satisfy itself about the adequate financial resources, accommodation, library, qualified staff, and laboratory required for proper functioning of an institution for a course or training in teacher education. Therefore, when recognition is granted by NCTE, it is implied that NCTE has satisfied itself on those aspects. Consequently, the examining body may not refuse affiliation on the ground that the institution does not have adequate financial resources, accommodation, library, qualified staff, or laboratory required for proper functioning of the institution."(emphasis supplied)

46. It is therefore evident that there is a conflict between the Central Act and the Government order and overlapping functions of the council and the affiliating body.

47. When the State has no power to pass a legislation under Entry 25 of List III, in view of the Central Act operating in the field, the question of issuing a Government order invoking Article 162 of the Constitution of India does not arise. The order granting recognition indicates that the NCTE has inspected the instructional and infrastrutural facilities and after satisfying about such facilities, recognition was granted. Therefore, no useful purpose would be served by directing second inspection at the instance of the State. The Supreme Court has now made the position clear that the State cannot deny affiliation on the ground that institution does not have instructional and infrastructural facilities. Therefore, in view of the Central Act operating in the field, the impugned regulations insofar as it mandates the institutions to prove the instructional and infrastructural facilities is liable to be quashed as it is beyond the executive power of the State.

48. The other question relates to the validity of Regulation III, IV V and VI. Those guidelines deal with matters which would come under the sphere allotted to the examining body.

REGULATIONS FALLING WITHIN THE SPHERE OF STATE:

49. The NCTE Act and the regulations in very clear terms recognized the role of State as an Affiliating/Examining body. As per the NCTE Regulations, the Selection Committee for appointment of faculty shall be constituted in accordance with the prevailing policy of the State. The Staff list should be submitted for approval to the State. The institutions were permitted to make admissions only after getting affiliation from the examining body. The reservation for SC/ST/OBC and other categories shall be as per the rules of the State Government. The admission should be on merits on the basis of marks obtained in the qualifying examination and/or in the entrance examination, or any other selection process as per the policy of the State Government. The reservation policy of the State should be scrupulously followed in the matter of selection of faculty members.

50. Since the NCTE Act and the regulations wanted the State to function as a Regulatory Body in their field, necessarily, there should be a set of guidelines to streamline the procedure regarding grant of affiliation. It was only in the sphere allotted to the State, Regulations III to VI were framed by the Government.

51. This issue is no longer res intega in view of the decision of the Supreme Court in Bhartia Education Society and another [supra].

52. The preamble to the Government Order indicates the modus operandi adopted by the institutions in the matter of faculty. The teachers who were shown as faculty members in one institute were also found in the list of faculty in other institutions. It was found that subsequent to the inspection by the examining body, the teachers joined the other institutions, after submitting resignations, so as to satisfy the Inspection Committee about the availability of faculty members in the later institutions. On record, some of the faculty members were working in several institutions simultaneously. It was only to weed this unhealthy practice, regulation no.III was introduced.

53. Regulation IV pertains to admission of students. The institutions were making admissions without following the Rule of Reservation and at times, even more than the intake permitted. The recognition granted by NCTE was taken as a shelter to make admissions even before the approval of staff list. Even as per the NCTE Regulations, approval of the staff List and affiliation by the State/Examining Body are preconditions for admission of students. It was also found that without adhering to the cut off date, midterm admissions were made and the students were made to apply for condonation in the matter of attendance. Similarly, without even satisfying the condition regarding minimum marks, admissions were made and ultimately, students were compelled to approach the Courts to regularize the admissions during the fag end of the course and just before the public examination. All these factors do weighed with the State Government in framing Regulation No.IV regarding admission of students.

54. The examining body should be satisfied that the students have attended the class for the required number of working days. Therefore, the State as an examining body, prescribed the minimum attendance and shortage of days, which could be condoned. Regulation No.V was therefore, well within the sphere of Examining body.

55. The Director of Teacher Education, Research and Training and the Principal of District Institute of Education were nominated as the authorities to inspect the Institutions, to ensure that the approved faculty members are actually in position and that the work relating to imparting instructions to the teacher trainees is taken up in accordance with the syllabus as prescribed by the Government. The regulation indicates that it was made to achieve the qualitative education to the teacher trainees. It is open to the Affiliating Authority to dis-affiliate an institution on valid reasons and as such, inspection is an essential facet of the affiliation process. Since some of the institutions have adopted unethical practices and attempted to open "Teacher Training Shops" instead of "Teacher Training School of Excellence", the State, as an affiliating body, was fully justified in making this provision for inspection so as to appraise the Regional Committee of NCTE, in case any lapse or deficiency is noticed during the time of inspection. This would enable the NCTE to take follow up action and even to de-recognize such erring institutions. The State was only discharging its functions as a responsible affiliating body. Therefore, regulation no.VI was well within the legislative competence of the State.

56. The Supreme Court in Bhartia Education Society made the legal position clear that Sub Section 6 of Section 14 cannot be interpreted in a manner so as to make the process of affiliation, an automatic rubber stamping, consequent upon recognition without any kind of discretion in the examining body to examine whether the Institute deserves affiliation or not independent of the recognition.

57. In Bhartia Education Society, the institutions contended that having regard to the provisions of Section 14(6) of the NCTE Act, the examining body is bound to grant affiliation to an institution in regard to which recognition has been granted by NCTE. While negativing the said contention, the Supreme Court distinguished the concept of recognition and affiliation and it was held thus:

"7. It is well settled that admission to a course can be given only to those candidates who are eligible as per the regulations of the Examining Body and the State Government. Therefore, unless the students fulfilled the eligibility requirements stipulated by the Board which is the affiliating and examining authority, their admissions will be invalid and they cannot be permitted to take the examination.

15. The purpose of recognition and affiliation are different. In the context of NCTE Act, affiliation enables and permits an institution to send its students to participate in the public examinations conducted by the Examining Body and secure the qualification in the nature of degrees, diplomas, certificates. On the other hand, recognition is the licence to the institution to offer a course or training in teacher education. Prior to NCTE Act, in the absence of an apex body to plan and coordinate development of teacher education system, respective regulation and proper maintenance of the norms and standards in the teacher education system, including grant of recognition were largely exercised by the State Government and Universities/Boards. After the enactment of NCTE Act, the functions of NCTE as recognizing authority and the examining bodies as affiliating authorities became crystallized, though their functions overlap on several issues. NCTE Act recognizes the role of examining bodies in their sphere of activity".

58. The Supreme Court in Bhartia Education Society, while rejecting the contention regarding automatic affiliation consequent to recognition, indicated the power of the affiliating body to frame guidelines within their spheres. The observation reads thus:

17. ... But 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. Even the order of recognition dated 17.7.2000 issued by NCTE specifically contemplates the need for the institution to comply with and fulfil the requirement of the affiliating body and state government, in addition to the conditions of NCTE. We extract below conditions 4, 5 & 6 of the order of recognition issued by NCTE in this behalf:

"4. The admission to the approved course shall be given only to those candidates who are eligible as per the regulations governing the course and in the manner laid down by the affiliating University/State Government.

5. Tuition fee and other fees will be charged from the students as per the norms of the affiliating University/State Government till such time NCTE regulations in respect of fee structure come into force.

6. Curriculum transaction, including practical work/ activities, should be organized as per the NCTE norms and standards for the course and the requirements of the affiliating University/Examining body."

The examining body can therefore impose its own requirements in regard to eligibility of students for admission to a course in addition to those prescribed by NCTE. The state government and the examining body may also regulate the manner of admissions. As a consequence, if there is any irregularity in admissions or violation of the eligibility criteria prescribed by the examining body or any irregularity with reference to any of the matters regulated and governed by the examining body, the examining body may cancel the affiliation irrespective of the fact that the institution continues to enjoy the recognition of the NCTE. Sub-section (6) of section 14 cannot be interpreted in a manner so as to make the process of affiliation, an automatic rubber-stamping consequent upon recognition, without any kind of discretion in the examining body to examine whether the institution deserves affiliation or not, independent of the recognition. An institution requires the recognition of NCTE as well as affiliation with the examining body, before it can offer a course or training in teacher education or admit students to such course or training. Be that as it may."

59. The teachers occupy a very pivotal position in our society. They are shaping the future of our children. The teachers are instrumental in moulding the character of students. The teachers would be of immense help to the students to unearth their hidden talents. Such being the importance of teachers, the trainees must be given qualitative training and the Training Institutes should possess all the required facilities.

60. In Manager, Nirmala Senior Secondary School v. N.I. Khan, (2003) 12 SCC 84 [LQ/SC/2003/1192] , the Supreme Court indicated the role of teachers thus :

A teacher affects eternity. He can never tell where his influence stops; said Henry Adam. Any educational institution for its growth and acceptability to a large measure depends upon the quality of teachers.

2. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important.

61. In Dental Council of India v. Subharti K.K.B. Charitable Trust, (2001) 5 SCC 486 [LQ/SC/2001/1107] , the Supreme Court expressed its deep concern over the emergence of education shops without adhering to the norms. It was said :

12. At present, there is tremendous change in social values and environment. Some persons consider nothing wrong in commercialising education. Still however, private institutions cannot be permitted to have educational shops in the country. Therefore, there are statutory prohibitions for establishing and administering educational institution without prior permission or approval by the authority concerned. On occasions, the authorities concerned, for various reasons, fail to discharge their function in accordance with the statutory provisions, rules and regulations. In some cases, because of the zeal to establish such educational institution by persons having means to do so, approach the authorities, but because of red tapism or for extraneous reasons, such permissions are not granted or are delayed. As against this, it has been pointed out that instead of charitable institutions, persons having means, considering the demands of the market rush for establishing technical educational institutions including medical college or dental college as a commercial venture with the sole object of earning profits and/or for some other purpose. Such institutions fail to observe the norms prescribed under the Act or the Regulations and exploit the situation because of the ever-increasing demand for such institutions.

62. In Visveswaraya Technological University & Anr. vs. Krishnaendu Halder & Ors. [2011 (3) Scale 359 [LQ/SC/2011/282] ], while approving the fixation of criteria higher than those fixed by All India Council for Teacher Education, Supreme Court made a reference about the mushrooming of Private Institutions in Teacher Education. The observation reads thus:

"11. The primary reason for seats remaining vacant in a state, is the mushrooming of private institutions in higher education. This is so in several states in regard to teachers training institutions, dental colleges or engineering colleges. The second reason is certain disciplines going out of favour with students because they are considered to be no longer promising or attractive for future career prospects. The third reason is the bad reputation acquired by some institutions due to lack of infrastructure, bad faculty and indifferent teaching. Fixing of higher standards, marginally higher than the minimum, is seldom the reason for seats in some colleges remaining vacant or unfilled during a particular year. Therefore, a student whose marks fall short of the eligibility criteria fixed by the State/ University, or any college which admits such students directly under the management quota, cannot contend that the admission of students found qualified under the criteria fixed by AICTE, should be approved even if they do not fulfil the higher eligibility criteria fixed by the State/University."

63. In view of the categorical pronouncement made by the Supreme Court with regard to the power of the affiliating body to frame appropriate regulations in the matter of granting affiliation, we reject the challenge made to Regulation nos. III to VI, framed by the State in its capacity as examining body.

64. Therefore, on a careful consideration of the impugned regulations I and II, in the light of the regulations framed by the National Council for Teacher Education, we are of the view that these two regulations are beyond the executive power of the State.

65. The remaining issue is whether invalid regulations can be quashed by retaining the valid part.

66. While considering the primacy of central legislation and the scope of Article 245(1) of the Constitution, the Supreme Court in GVK Inds and anr. vs. Income Tax Officer and anr. [2011(3) Scale 111] indicated the source of power to invalidate laws. The Supreme Court observed :

"53. ... The power of the judiciary to invalidate laws that are ultra vires flows from its essential functions, Constitutional structure, values and scheme, and indeed to ensure that the powers vested in the organs of the State are not being transgressed, and that they are being used to realize a public purpose that subserves the general welfare of the people. It is one of the essential defences of the people in a constitutional democracy."

67. The Supreme court in State of Tamil Nadu & Anr. v. P.Krishnamurthy (2006(4) SC167 observed that "If a Rule is partly valid and partly invalid the part that is valid and severable is saved. Even the part which is found invalid can be read down to avoid being declared as invalid."

Conclusion :

68. In the upshot, Guideline No.I [Conditions for grant of affiliation to New Teacher Training Institutes] and Guideline No.II [Affiliation in respect of existing Private Teacher Training Institutes] along with Annexure I to VI are declared as void, invalid and inoperative, as it impinge upon the provisions of the NCTE Act and the Regulations. Guidelines III to VI are upheld as valid.

69. The writ appeal is allowed in part, as indicated above. No costs. Consequently, connected M.P.s are closed.