Dr. A.H. Rizvi Degree College, ... vs State Of U.P. And 3 Others
2017 Latest Caselaw 8011 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							      Reportable.
 
Court No. - 36
 

 
Case :- WRIT - C No. - 38713 of 2017
 

 
Petitioner :- Dr. A.H. Rizvi Degree College, Kaushambi
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Rahul Agarwal
 
Counsel for Respondent :- C.S.C.
 
				alongwith 
 
WRIT - C No. - 33807 of 2017 (Trinity Institute Of Education, Ghaziabad v. State Of U.P. And 4 Others), WRIT - C No. - 33811 of 2017 (Institute Of Teacher Education, Ghaziabad v. State Of U.P. And 4 Others), WRIT - C No. - 38723 of 2017 (Nayab Abbasi Girls Degree College, Amroha
 
Respondent :- State Of U.P. And 3 Others) and WRIT - C No. - 33810 of 2017 (Institute For Education & Technical Sciences, Ghaziabad v. State Of U.P. And 4 Others).
 
Hon'ble Mrs. Sunita Agarwal,J.

The controversy in all the connected writ petitions arises out of the Government order dated 28.7.2017 pursuant to the notification dated 17.7.2017 issued by the Additional Chief Secretary, Basic Education Department, U.P. in declaring the Academic Session 2016-17 for D.El.Ed. (BTC Course) in the State of U.P. as "Zero" Session. As common issues have been raised by the learned counsels for the parties appearing in two batches of writ petitions, all the writ petitions were heard together and are being decided by this common judgment.

Heard Shri Rahul Agarwal and Shri Pratik Chandra learned counsels for the petitioners and learned Standing Counsel appearing for the State-respondents.

Two sets of writ petitions have been filed by private colleges imparting B.Ed. and D.El.Ed. Courses having recognition and affiliation from the NCTE and the State of U.P; respectively. There is no dispute about the recognition and affiliation having been granted to the petitioners-institutions by the Competent Authorities, neither there is a dispute regarding the competence of NCTE or the State Government having power to grant recognition and affiliation; respectively, for imparting D.El.Ed. Courses in the State of U.P.

Only issue which has been raised for consideration before this Court is regarding the competence of the State Government i.e. the affiliating body to declare the Academic Session 2016-17 a "Zero" Session by issuing notification and the Government Order dated 17.7.2017 and 28.7.2017; respectively.

The facts in brief relevant to decide the controversy which had led to the impugned decision being taken by the State Government are that initially the State Government had issued a Government Order dated 5.6.2017 permitting the Secretary, Examination Regulatory Authority, U.P., Allahabad (the Examining Authority) to initiate process for admission in D.El.Ed. Course-2016. As a result of which, an advertisement dated 7.6.2017 was issued by the Secretary, Examination Regulatory Authority, U.P., Allahabad inviting online applications from the candidates aspiring for admission to D.El.Ed. Course-2016. The schedule provided in the aforesaid advertisement dated 7.6.2017 was as follows:-

Advertisement dated 7.6.2017.

The date of commencement of online registration

14/06/17

(From afternoon)

Last date of online registration

03/07/17 (till 06:00 evening)

First date of submission of application fee

15/06/17

Last date of submission of application fee

05/07/17

Last date of printing of online application form

07/07/17

(till 06:00 evening)

The date of commencement of amendment in online application form

10/07/17

(From afternoon)

The last date for making amendment in the application form

13/07/17

(Till 06:00 evening)

Pursuant thereto, the petitioner namely Dr. A.H. Rizwi Degree College Nayaganj, Karari, Kaushambi had issued advertisement inviting applications for admission against the 50% management quota notifying the date of entrance examination as 6.8.2017.

In the meantime, the notification dated 28.7.2017 was issued pursuant to a decision of the State Level Committee held under the Chairmanship of the Additional Chief Secretary, Basic Education.

In the said meeting, a decision had been taken to declare the Academic Session 2016-17 as "Zero" Session, to commence Academic Session 2017-18 for admission to D.El.Ed. Course and to complete the admission process against the approved intake of all institutions which had been granted affiliation upto 30.5.2016.

Pursuant thereto, the Government Order dated 28.7.2017 had been issued by the Additional Chief Secretary directing the Director State Council for Education Research and Training (SCERT) Lucknow U.P. and the Secretary, Examination Regulatory Authority, U.P. Allahabad to notify that the online application forms filled by the candidates for D.El.Ed. Course-2016-17 vide advertisement dated 7.6.2017 issued by the Secretary, Examination Regulatory Authority, would be considered for admission in D.El.Ed. Course-2017-18. A time schedule had also been provided therein for completion of the selection process for admission to D.El.Ed Course-2017. The petitioners-institutions are raising a dispute with regard to this decision of the State Government.

Indisputably, the Academic Session 2015-16 got delayed by one year and could commence only in the last week of September, 2016 under the directions issued by the Apex Court dated 8.9.2015 in the case of Baba Shiv Nath Shikshan Avam Prashikshan Sansthan v. NCTE & Ors. reported in (2015) 17 SCC 738 for timely completion of affiliation/admission for the Academic Session 2015-16 and to ensure the commencement of the said Session w.e.f. 22.9.2016.

On a pointed query made by the Court, it is admitted by the learned counsels for the petitioners that the Academic Session 2015-16 could not be concluded i.e. final examinations for the said Session were not held till the decision was taken by the State Government to declare Academic Session 2016-17 a "Zero" Session. Admittedly, the admission/examination for the Academic Session 2016-17 could also not be concluded as per the original academic calendar i.e. from July, 2016 to June, 2017 and was late by one year.

To challenge the aforesaid decision of the State Government, the affiliating body in relation to D.El.Ed. Course, learned counsels for the petitioners vehemently contended that the delay in commencement of Academic Session 2016-17, as per the original academic calendar, could not be attributed to the institutions rather it was on account of delay in grant of affiliations on the part of the State Government to the institutions which were coming up every year. The affiliating body had flouted the directions of the Apex Court in granting affiliation to 1557 institutions in the State of U.P. beyond the timeline. In order to accommodate those new institutions, which were granted affiliation beyond 30.5.2016, {the date fixed in Maa Vaishno Devi Mahila Mahavidyalaya v. State of U.P. reported in (2013) 2 SCC 617)}, the State Government had sacrificed the then existing institutions by declaring the Academic Session 2016-17 as "Zero" Session thereby preventing them from taking admission in D.El.Ed. Course. It is, thus, submitted that rights of the institutions especially minority institutions to admit students against the management quota could not have been curtailed. Even otherwise, the petitioners-institutions could not have been deprived from getting students for the fault of the State Government in causing delay in the matters of affiliation of new institutions.

While placing the minutes of meeting of the State Level Committee dated 17.7.2017, it is submitted by the learned counsels for the petitioners that the proposal for the said meeting was only to make the affiliation of new institutions to be effective from Academic Session 2016-17 as they were granted affiliation after 30.5.2016 but under the garb of the said proposal, the State-respondents had proceeded in a mala fide manner to declare the entire Session 2016-17 as "Zero" Session thereby causing prejudice to the existing institutions who were granted affiliation much earlier. The declaration of the Session 2016-17 as "Zero" Session was prejudicial to the students who had applied pursuant to the advertisement issued by the Examination Regulatory Authority as also to the Minority institutions which were deprived from taking admission under the management quota. Before taking such a drastic step of making entire Session as "Zero", the State Government did not explore other options to regularize the Sessions. The remedial measures could have been suggested by the institutions, in case, they would have been taken into confidence. Some of the remedial measures as suggested by the petitioners-institutions are that they could have conducted extra classes on holidays, special evening classes, cut short the summer and winter vacations so as to complete the period of study as per the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2014 (in short 'the Regulations 2014').

It is contended that the teaching and non-teaching staff of the privately managed unaided colleges had also suffered because of the said decision as they had been forced to lose their job. Similarly, the management had to bear heavy losses as they could not realize fee for the said Session.

The teaching work of the Academic Session 2015-16 was already over and it was possible for the institutions to start teaching for the Academic Session 2016-17, in case, they were permitted to take admission and the Academic Session 2017-18 could also have commenced well in time as per the original calendar i.e. July, 2017.

Further, it was vehemently contended by the learned counsels for the petitioners that the State Government was lacking in power/competence to take such a decision, NCTE being the Apex Body to conduct D.El.Ed. Course. In any eventuality, the decision to declare the Academic Session 2016-17 as "Zero" Session", if so, could have been taken only by the NCTE and not by the State Government. The field for conducting D.El.Ed. Course was already occupied by the National Council for Teacher Education Act, 1993 (in short ''the NCTE Act, 1993') which has been incorporated under the Central Legislation, enacted by the Parliament. It was not open for the State Government to take a policy decision with respect to the admissions for D.El.Ed. Course in the matters which were covered by the NCTE Act, 1993. The conflicting decision taken by the State Government vide Government Order/notification under challenge, therefore, cannot be sustained.

Reliance is placed upon the judgment and order dated 23.3.2010 passed by the Division Bench of this Court in Writ Petition No.11908 of 2009 (Jamuna Devi Naresh Chandra Mahavidyalaya v. State of U.P. & Anr.) connected with other writ petitions for quashing of the Government Order dated 15.10.2009 in declaring Session 2009-10 as "Zero" Session on the said principles.

The Division Bench in the above noted judgment had held that the State Government was not empowered to take decision for declaration of Academic Session 2009-2010, for B.Ed. Course, as "Zero" Session, inasmuch as, it had no role in the matter of admissions after recognition was granted by the NCTE. It was held that there cannot be any exception to taking of admissions in any particular Session, nor any impediment could be placed by the State Government in doing so once recognition was granted and affiliation was accorded. So long as the recognition/affiliation continued, the private unaided colleges were legally entitled to take admissions in every Academic Session. It was not open for the State Government to curtail their rights by refusing to hold Common Entrance Test and depriving the institutions in getting students, moreso, in absence of any specific provision under the NCTE Act, 1993 or other State Legislation. In all eventuality, efforts were required to be made to regularize Academic Session by adopting alternative options instead of declaring any Academic Session as "Zero" Session. No such exercise was done and such unilateral decision taken by the State on its own was set aside. However, as the Academic Session 2009-10 had already run out, by the time when final order was passed by the Division Bench, no relief was granted to the institutions for admitting students for the Academic Session 2009-10.

Taking aid of the said decision, it is vehemently submitted by learned counsels for the petitioners that the exercise for admissions to the Academic Session 2016-17 had already been set in motion, therefore, the respondents be directed to grant permission to the petitioners-institutions to conduct counselling of the candidates and to take admission to run the said session as per the approved intake permitted by the NCTE.

On the contrary, learned Standing Counsel on behalf of the State-respondents submits that in view of the admitted facts that the Academic Session 2016-17 could not be commenced well in time i.e. in July, 2016 for the reason that the Academic Session 2015-16 had spilled over to one additional year, to regularise the next sessions, the State Government/affiliating/examining body had no option but to declare the Academic Session 2016-17 a "Zero" Session. There was no time left for imparting instructions for required number of days before the written and practical examinations could be held and, moreover, the Examining Body could not have allowed two Academic Sessions to run, simultaneously. As per the NCTE norms, the teaching faculty was adequate only for one batch of D.El.Ed Course. The institutions, in absence of any additional infrastructure, could not be allowed to run two overlapping Academic Sessions in one year i.e. commencing in July, 2017 and ending in June, 2018.

At this stage, it is further noteworthy that in none of the writ petitions, the NCTE has been made party and as such the stand of NCTE regarding the dispute raised before the Court could not be placed. In the crux, the issue of lack of jurisdiction on the part of the State Government to take decision for declaring the Session 2016-17 as 'Zero' session on the plea of the Doctrine of Occupied Field, as urged by the learned counsels for the petitioners, is to be examined in the facts and circumstances of the case.

Before answering the said question, it would be appropriate to go through the relevant legal provisions and pronouncements of the Apex Court covering the field of admissions and examinations of D.El.Ed. Course providing for the area occupied by NCTE and State Government.

The NCTE Act, 1993 Act No.73 of 1993 was enacted by the Parliament on 30.12.1993 in order to provide for the establishment of a "National Council for Teacher Education" with a view to achieve planned and co-ordinated development for the teacher education system in the country and for regularization and proper maintenance of the norms and standards in the teacher education system. The norms and standards for Diploma in Elementary Teacher Programme leading to Diploma in Elementary Education (D.El.Ed. Course) have been provided by the NCTE in Appendix-2 of the NCTE Regulations, 2014 framed under Section 32(2) of the NCTE Act, 1993. The duration, intake, eligibility and admission procedure, field-curriculum, programme implementation and assessment for examinations conducted by the Examining Body have been provided therein as also the number of teaching staff as per the strength of the students and qualifications of teaching staff.

For the non-teaching staff required to run the course, though the strength has been provided under the Regulations, 2014, but their qualifications are to be prescribed by the State Government/Administration concerned. The terms and conditions of service of teaching and non-teaching staff are to be regulated as per the policy of the State Government/affiliating body. The requirement of infrastructure facilities such as land, built-up area, library, equipment, amenities etc. for running D.El.Ed. Course has also been covered by the said Regulations.

In so far as the supremacy of NCTE in relation to the Teacher Training Programme is concerned, the matter is no longer res-integra. The State is not permitted to enact any provision in conflict with the Central Legislation namely the NCTE Act, 1993. For the purpose of recognition, the Regional Committee, NCTE is required to entertain the application, consider the opinion of the State, cause inspection by an expert team and then to grant or refuse recognition in terms of the provisions of the NCTE Act, 1993. Once the recognition is granted and before an institution is permitted to commence any course, it is required to take affiliation from the affiliating body, which in the matter of B.Ed. Course, is the State University whereas in the matter of D.El.Ed. Course, it is the State of Uttar Pradesh. The grant of "recognition" or "affiliation" to an institution is a condition precedent to run the courses both in B.Ed. and D.El.Ed Courses. If either of them is not granted to the institution, it would not be in a position to commence the relevant Academic Courses. Under Section 14(6) of the NCTE Act, the examining body is required to grant affiliation to an institute where recognition has been granted. Thus, granting recognition is the basic requirement for grant of affiliation.

As far as the conditions for maintaining the norms and standards for grant and continuance of affiliation to the Teachers Training Course is concerned, the same must be in conformity with the norms and guidelines prescribed by NCTE.

In the light of the aforesaid, it is obligatory upon the affiliating body to frame its policy in consistent and in conformity with the directions issued by the NCTE. To the extent of repugnancy or in case of any conflict, the NCTE Act and Regulations would prevail over the policy framed by the State Government/affiliating body. In other words, the State cannot act in derogation of the guidelines framed by the NCTE and cannot refuse affiliation, in case, the recognition is granted by the NCTE after being satisfied with the infrastructural requirement fulfilled by the institution. In case of any effort of the affiliating body to over-reach its jurisdiction in the matter of regulating Teachers Training Course, the directives issued by it would be void and inoperative to the extent where clear precedence is to be given to the directives of NCTE while resolving the conflict.

In so far as the role of the State Government in the matter of conduct of D.El.Ed. Course is concerned, there cannot be a dispute to the fact that the State Government is the affiliating body regulating admissions and examinations in the institutions imparting D.El.Ed. Course. For the purpose of regulating admissions and examinations in D.El.Ed. Course, a State-governed body namely the Examination Regulatory Authority, Allahabad has been constituted by the State Government under the Directorate of State Council for Education Research and Training, U.P., Lucknow (hereinafter referred to as SCERT). The schedule governing admissions after grant of affiliation as well as for holding examinations of the students admitted in D.El.Ed. Course is to be provided by the Examination Regulatory Authority in consultation with the Director, SCERT, Lucknow. Thus, it is the State Government which has a control over the mode and manner of admissions/examinations of D.El.Ed. in the State of U.P.

As against this, in the matter of B.Ed. Course, the affiliating/examining body is a State University within its territorial jurisdiction as per the provisions of the U.P. State Universities Act, 1973 and the University being the affiliating body, the State has no control over the admissions and has no power to de-affiliate or cancel affiliation of any college.

In the light of the aforesaid, the distinction drawn by the Apex Court in the case of Maa Vaishno Devi (supra) between the expressions "recognition" and "affiliation" as used in the NCTE Act is relevant to the noted. The purpose of "recognition" and "affiliation" in the context of NCTE Act, 1993 as interpreted in Bhartia Education Society v. State of H.P. reported in (2011) 4 SCC 527 had been considered therein to conclude in Paragraphs 70 and 71 in the following words:-

"70. Under Section 14 and particularly in terms of Section 14(3)(a) of the Act, the NCTE is required to grant or refuse recognition to an institute. It has been empowered to impose such conditions as it may consider fit and proper keeping in view the legislative intent and object in mind. In terms of Section 14(6) of the Act, the examining body shall grant affiliation to the institute where recognition has been granted. In other words, granting recognition is the 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. It is the requirement of law that affiliation should be granted by the affiliating body in accordance with the prescribed procedure and upon proper application of mind. Recognition and affiliation are expressions of distinct meaning and consequences. In Bhartia Education Society v. State of Himachal Pradesh & Ors. [(2011) 4 SCC 527], this Court held that:-

"19. The purpose of 'recognition' and 'affiliation' is different. In the context of the NCTE Act, 'affiliation' enables and permits an institution to send its students to participate in public examinations conducted by the examining body and secure the qualification in the nature of degrees, diploma and certificates. On the other hand, recognition is the licence to the institution to offer a course or training in teaching education."

The Court also emphasised that the affiliating body/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.

71. The examining body can impose conditions in relation to its own requirements. These aspects are:-

(a) eligibility of students for admission;

(b) conduct of examinations;

(c) the manner in which the prescribed courses should be completed; and

(d) to see that the conditions imposed by the NCTE are complied with.

Despite the fact that recognition itself covers the larger precepts of affiliation, still the affiliating body is not to grant affiliation automatically but must exercise its discretion fairly and transparently while ensuring that conditions of the law of the university and the functions of the affiliating body should be complementary to the recognition of NCTE and ought not to be in derogation thereto."

In so far as the respective areas occupied by the NCTE vis-a-vis the affiliating/examining body is concerned, it had been held therein that there is not much conflict on the issue. The affiliating body namely the University, the State and NCTE, have to work-in-tandem as they all have a common object to achieve i.e. of imparting education properly and ensuring maintenance of proper standards of education, examination and infrastructure for betterment of the educational system. Only with the co-ordinated work and co-operation of all these Authorities, the very object for which they exist will be able to be achieved.

In so far as the observations of Apex Court in the case of Maa Vaishno Devi (supra) regarding the role of State Government in the matter of granting affiliation and holding examination is concerned, the State Government, in the matter of B.Ed. Course is only to ensure that the affiliating body namely the State University comply with the conditions of affiliation and examine the matter in conformity with the norms and guidelines prescribed by the NCTE. It is the State University which has to primarily determine the grant or refusal of affiliation. Thus, the role of the State in the matter of B.Ed. Course, as has been observed in Maa Vaishno Devi (supra) is bare minimum, non-interfering and non-infringing. The relevant observations of the Apex Court in Paragraphs 78, 79 and the conclusion drawn in Paragraph 80 therein are relevant to be quoted as under:-

"78. Now, we may deal with another aspect of this very facet of the case. It is a very pertinent issue as to what the role of the State should be after the affiliation is granted by the affiliating body. We have already discussed that the State opinion, as contemplated under Section 37 of the University Act, to the extent it admits to overreach, is reconcilable and its results are not in its orientation to the directives of the NCTE are void and inoperative to the extent they can be resolved in which case clear precedence is to be given to the directives of the NCTE during such resolution. 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 bare, minimum non- interfering and non-infringing.

79. It is on record and the Regulations framed under the Act clearly show that upon receiving an application for recommendation, the NCTE shall send a copy of the application with its letter inviting recommendations/comments of the State Government on all aspects within a period of 30 days. To such, application, the State is expected to respond with its complete comments within a period of 60 days. In other words, the opinion of the State on all matters that may concern it in any of the specified fields are called for. This is the stage where the State and its Department should play a vital role. They must take all precautions to offer proper comments supported by due reasoning. Once these comments are sent and the State Government gives its opinion which is considered by the NCTE and examined in conjunction with the report of the experts, it may grant or refuse recognition. Once it grants recognition, then such grant attains supremacy viz-a-viz the State Government as well as the affiliating body. Normally, these questions cannot be re-agitated at the time of grant of affiliation. Once the University conducts inspection in terms of its Statutes or Act, without offending the provisions of the Act and conditions of recognition, then the opinion of the State Government at the second stage is a mere formality unless there was a drastic and unacceptable mistake or the entire process was vitiated by fraud or there was patently eminent danger to life of the students working in the school because of non-compliance of a substantive condition imposed by either of the bodies. In the normal circumstances, the role of the State is a very formal one and the State is not expected to obstruct the commencement of admission process and academic courses once recognition is granted and affiliation is found to be acceptable.

80. In the case of State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya reported in (2006) 9 SCC 1, the view of this Court was that the State Government has no role whatsoever. However, in the case of Bhartia Education Society (supra), it was stated that the role of the State Government was limited to the manner of admission, eligibility criteria, etc. without interfering with the conditions of recognition prescribed by the NCTE. The exercise of discretion by the State Government and affiliating body has to be within the framework of the Act, the Regulations and conditions of recognition. Even in St. John Teachers Training Institute (supra), the Court stated that the State Government or the Union Territory has to necessarily confine itself to the guidelines issued by the NCTE while considering application for grant of ''No Objection Certificate'. Minimization of the role of the State at the second stage can also be justified on the ground that affiliation primarily is a subject matter of the University which is responsible for admission of the students laying down the criteria thereof, holding of examinations and implementation of the prescribed courses while maintaining the standards of education as prescribed. "

The position is entirely different in the matter of D.El.Ed. Course, the State Government being the affiliating body controlling admissions and examinations. After the recognition is granted by the NCTE, it is the State Controlling Authority namely the Examination Regulatory Authority which has to ensure that:-

(a) The students are admitted as per the eligibility criteria;

(b) The examinations are conducted as per the norms laid down by the NCTE and in a fair and transparent manner;

i.e. the mode and manner in which, the Course has to be conducted and completed, is to be provided by the State Government.

The State Government being the affiliating and examining body is empowered to take a decision for regulating the manner of conduct of admission and holding of examinations in relation to D.El.Ed. Course which is not within the area occupied by NCTE. The decision of the State Government to regulate Academic Session 2017-18, as per the original Calendar year of the State cannot be said to be repugnant or in conflict with any of the directions or guidelines issued by the NCTE. The role of the State Government in the matter of affiliation in relation to D.El.Ed. Course cannot be said to be minimal or at par with its power in relation to that of the B.Ed. Course.

The time schedule in the matter of recognition and affiliation in terms of the National Council for Teacher Education (Recognition Norms & Procedure) Regulations, 2009 and the judgment of Apex Court in College of Professional Education v. State of U.P. reported in 2013 (2) SCC 721 had been considered in Maa Vaishno Devi (supra) and in order to ruleout any ambiguity, uncertainty and confusion, it has prescribed a time schedule therein which is to be strictly followed by each Authority/Council/Committee in relation to the recognition and affiliation.

The said schedule in relation to D.El.Ed. Course in the State of U.P. had been adopted by the Apex Court in the matter of Baba Shiv Nath (Supra) and the directions had been issued to adhere to the original academic calendar and to ensure that each Academic Session strictly adhered to the academic calendar of the State. Both the Authorities i.e. NCTE and SCERT were directed to strictly comply with and adhere to the directions therein and not to permit recognition or affiliation beyond the dates mentioned in Maa Vaishno Devi (supra) and not to grant admissions beyond such dates which may effect the date of commencement of the Academic Session.

The dispute in Baba Shiv Nath (Supra) was primarily to regulate the Academic Session for running D.El.Ed. (BTC Course) in the State of U.P. The said matter was decided on 8.9.2015 and considering the fact that the Academic Session 2013-14 was delayed resulting in causing delay of all subsequent Academic Sessions, the following directions were issued:-

"11 (i) The commencement of the Academic Session 2014-2015 will be from the date as mentioned on behalf of the State of Uttar Pradesh i.e. 22nd September,2015. The session will commence for the seats available against the first, second and third batch of seats/students mentioned in the Chart extracted above, meaning thereby that for the Academic Session 2014-2015 the seats available against the fourth and fifth batch will not be filled up.

(ii) The Academic Session 2014-2015 will be brought to a close on completion of the mandatory number of working days at the earliest and without any delay.

(iii) The Academic Session 2015-2016 will commence on 22nd September, 2016 and affiliations/admissions etc. in respect of the said Academic Year would stand concluded well in time to enable the commencement of the Session from the date mentioned i.e. 22nd September, 2016.

(iv) The Academic Session 2015-2016 similarly will be brought to its earliest conclusion so that the next Academic Session can begin as per the original academic calendar i.e. July, 2017 and thereafter each Academic Session will strictly adhere to the academic calendar of the State.

(iv) We direct all Authorities i.e. NCTE and SCERT to strictly comply with and adhere to the above directions and not to permit recognition or affiliation beyond the dates mentioned in Maa Vaishno Devi Mahila Mahavidyalaya (supra) and not to grant admissions beyond such dates which may have the effect of putting the date of commencement of the concerned Academic Session itself in peril. "

Lastly, with reference to Paragraph-11 of the said judgment in Baba Shiv Nath (supra) and the Division Bench of this Court (as noted above), learned counsels for the petitioners vehemently contended that even the Apex Court had explored the option to declare either of the Academic Years 2014-15 or 2015-16 as "Zero" year so as to regulate the next Academic Session but it did not think it proper to issue any such direction in absence of all the institutions and the representatives of the students considering that they may be affected by such decision. The suggestion of the learned counsels of the petitioners therein to declare one Academic Year as "Zero" year had not been acceded to and the directions to maintain the academic calendar were issued after taking into account all available options by the Apex Court.

It is, thus, sought to be submitted by the learned Advocates that once the Apex Court had refused to declare an Academic Year a "Zero" year, it was not open for the State Government to do so by issuing the Government Order/notification in relation to the subsequent Academic Session 2016-17 unilaterally, in absence of all the stakeholders. It could not have prohibited the institutions from taking admission and the students from getting training in teachers education.

The State including SCERT had no option but to comply the said directions, any deviation therefrom was not permitted at all and would amount to violation of the orders of the Apex Court.

Considering the fact that the Academic Session 2015-16 had commended on 22.9.2016 and next Academic Session 2016-17 could not commence as per the original academic calendar, the State Government in its own wisdom, in consultation with the SCERT and Examination Regulatory Authority decided to commence the Academic Session 2017-18 in time, in place of the already delayed Academic Session 2016-17. The result was that the Session 2016-17 became a "zero" Session. There cannot be a dispute to the fact that two Academic Sessions cannot go together. The State being the Examining Authority was obliged to follow the mandate of the Apex Court in Baba Shiv Nath (supra) to regularise Academic Session, not to grant admission beyond the cut-off-date and to follow the time schedule so as to commence each Academic Session well in time. The policy decision taken by the State Government namely the examining body so as to regularize the admission and examination cannot be said to be an encroachment in the area occupied by NCTE Act and the Regulations framed thereunder. No such Regulations have been brought before the Court by the petitioners which would show otherwise rather the Examining Authority is required to ensure that the standards of teachers training is not compromised. The Doctrine of Occupied Field as suggested by the learned counsels for the petitioners is not attracted in the facts and circumstances of the instant case.

The observations in the case of Maa Vaishno Devi (supra) regarding the role of the State being minimal in the matter of affiliation for imparting B.Ed. Course would not be relevant in so far as the area of jurisdiction/power of the State in the matter of D.El.Ed. Course. The ratio of the judgment of Division Bench in Jamuna Devi (Supra) is also not attracted.

The submissions of learned counsels for the petitioners are based on the wrong appreciation of the facts and the legal position. A careful reading of Paragraph-11 of Baba Shiv Nath (Supra) leaves no room for doubt that all directions issued by the Apex Court therein were with a view to ensure that the Academic Sessions commence and conclude as per the original academic calendar. In the process, the Apex Court did not think it proper (as observed therein) to do away with one Academic Session at that point of time but that fact by itself does not mean that the examining body was prohibited from taking any decision to remedy the situation.

The delay in commencement and completion of Session 2014-15 onwards cannot be attributed to the examining body solely. There were so many factors which had led to the situation. The previous Academic Session i.e. 2015-16 admittedly was not over by July, 2017.

Moreover, the institutions were having limited infrastructure for one batch. None of the institutions came forward to state that they were having sufficient infrastructure for imparting training to two batches simultaneously as per the norms and standards laid down by NCTE. Two Academic Sessions, therefore, could not go together.

The contention of learned counsels for the petitioners that the decision to declare Session 2016-17 "Zero" Session was taken to benefit 1557 newly affiliated institutions is baseless inasmuch as, the observation to the said effect made in the orders impugned was only one of the factors which cannot be said to be a reason to declare the Session 2016-17 a "Zero" Session.

For all the above noted reasons, no infirmity is found in the decision taken by the State Government.

Both the batches of writ petitions are liable to be dismissed as such.

(Sunita Agarwal, J.)

Order Date:-15.12.2017

Jyotsana