Delhi High Court
Sjrd Memorial College Of ... vs National Council For Teacher ... on 18 February, 2020
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 10170/2018
Reserved on: 12th February, 2020
Pronounced on: 18th February, 2020
SJRD MEMORIAL COLLEGE OF EDUCATION.....Petitioner
Through: Mr. Sanjay Sharawat, Mr.
Divyank Rana, Mr. Abhishek
Dhankar and Mr. Ashok
Kumar, Advs.
versus
NATIONAL COUNCIL FOR TEACHER
EDUCATION AND ANR. ..... Respondents
Through: Ms. Arunima Dwivedi, SC with
Ms. Miharika Rai, Adv. for
Respondent No. 1
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
C. HARI SHANKAR, J.
1. The petitioner college is engaged in running teacher training
programmes, and is recognised, for the said purpose, by the National
Council for Teacher Education (Respondent No. 1 herein and referred
to, hereinafter, as "NCTE").
The Statutory Scenario
Relevant provisions of the National Council for Teacher Education
Act, 1993
2. Teacher education, in India, is governed by the provisions of
the National Council for Teacher Education Act, 1993 (hereinafter
referred to as "the NCTE Act"), enacted on 29th December, 1993. The
Act provides for the establishment of the NCTE, which operates
through Regional Committees, i.e. the North Regional Committee
(NRC), the East Regional Committee (ERC) and South Regional
Committee (SRC).
3. Chapter IV of the NCTE Act deals with "Recognition of teacher
education institutions". Sections 14 and 15, thereunder, read thus:
"14. Recognition of institutions offering courses 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 6 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.
15. Permission for a new course or training by a
recognised institution. -
(1) Where any recognised institution intends to start
any new course or training in teacher education, it may
make an application to seek permission therefor to the
Regional Committee concerned in such form and in
such manner as may be determined by regulations.
(2) The fees to be paid along with the application
under sub- section (1) shall be such as may be
prescribed.
(3) On receipt of an application from any institution
under sub- section (1), and after obtaining from the
recognised institution such other particulars as may be
considered necessary, the Regional Committee shall, -
(a) if it is satisfied that such recognised
institution has adequate financial resources,
accommodation, library, qualified staff,
laboratory, and that it fulfils such other
conditions required for proper conduct of the
new course or training in teacher education, as
may be determined by regulations, pass an order
granting permission, subject to such conditions
as may be determined by regulation; 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
permission to such institution, for reasons to be
recorded in writing:
Provided that before passing an order
refusing permission under sub- clause (b), the
Regional Committee shall provide a reasonable
opportunity to the institution concerned for
making a written representation.
(4) If the order granting or refusing permission to a
recognised institution for a new 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 recognised
institution and to the concerned examining body, the
local authority, the State Government and the Central
Government.
The NCTE Regulations
4. Section 32(1) of the NCTE act empowers the NCTE to, by
notification in the Official Gazette, make regulations, generally to
carry out the provisions of the NCTE Act. Sub-section (2) of Section
32 visualises certain specific matters, in respect of which Regulations
may be framed; as is normal in such clauses, however, the sub-section
clarifies that the enumeration of these individual "matters" is "without
prejudice to the generality of the foregoing power".
5. As a throwback to what has been discussed hereinabove, we
may note that, among the various matters, enumerated in Section 32
(2) of the NCTE Act, clause (f) covers "conditions required for the
proper functioning of the institution and conditions for granting
recognition under clause (a) of sub-section (3) of section 14", clause
(g) covers "the form and the manner in which an application for
permission is to be made under sub-section (1) of section 15, and
clause (h) covers "conditions required for the proper conduct of a new
course of training and conditions for granting permission under clause
(a) of sub-section (3) of section 15". Here, again, the distinction
between grant of recognition to the institution, and grant of permission
to run a course in the recognised institution, stands distinctly
emphasised.
6. Regulations, governing the functions of the institutions
recognised under the NCTE, have also been framed under Section
32(2)(f) and (g), read with Sections 14 and 15 of the NCTE Act. These
regulations have been re-notified from time to time. The controversy,
before us, would involve the National Council for Teacher Education
Regulations (hereinafter referred to as "the NCTE Regulations") 2005,
the NCTE Regulations 2007, the NCTE Regulations, 2014 and the
National Council for Teacher Education (Recognition, Norms and
Procedure) (Amendment) Regulations 2017, whereby the NCTE
Regulations, 2014 were amended. For the sake of convenience, these
regulations would be referred to, hereinafter, as the "2005
Regulations", the "2007 Regulations", the "2014 Regulations" and the
"2017 Amendment Regulations".
The 2005 Regulations
7. The 2005 Regulations were notified, by the NCTE, vide
Notification No F. 49-42/2005-NCTE (N & S), and came into effect
w.e.f. 27th December, 2005, when they were notified in the Official
Gazette. Regulation 3, which dealt with the "Applicability" of the
2005 Regulations, clearly stated that the said Regulations would be
applicable to all matters relating to teacher education programmes
covering "norms and standards and procedures for recognition of
institutions, commencement of new programmes and addition to
sanctioned intake in the existing programmes and other matters
incidental thereto". Significantly, this Regulation, too, distinguishes
between recognition of institutions, vis-à-vis commencement of new
programmes and addition to sanctioned intake in the existing
programmes.
8. Regulation 7 of the 2005 Regulations dealt with the manner in
which applications, submitted under the said Regulations, were to be
processed, whereas the conditions for grant of recognition were
contained in Regulation 8. Sub-regulation (5) of Regulation 8
stipulates thus:
"(5) No institution shall be granted recognition under these
regulations unless it is in possession of required land on the
date of application. The land free from all encumbrances
could be either on ownership basis or on lease for a period of
not less than 30 years. In cases where under relevant State/UT
laws the maximum permissible lease period is less than 30
years, the State Governments/UT Administration law shall
prevail."
As is apparent from a reading of Regulation 8(5) of the 2005
Regulations, an institution applying for recognition, under the said
Regulations, was required to be in possession of land, free from all
encumbrances, "either on ownership basis or on lease for a period of
not less than 30 years". The sub-regulation did not contain any further
stipulation, with respect to the lease, applicable to the land, on which
the institution was situate.
The 2014 Regulations
9. The 2005 Regulations were succeeded, sequentially, by the
NCTE Regulations, 2007 (which were notified on 10th December,
2007), the NCTE Regulations, 2009 (which were notified on 31 st
August, 2009) and the 2014 Regulations (which were notified on 1 st
December, 2014).
10. Regulation 3 of the 2014 Regulations, which dealt with the
applicability thereof, read thus:
"3. Applicability. -
These regulations shall be applicable to all matters
relating to teacher education programs for preparing
norms and standards and procedures for recognition of
institutions, commencement of new programs and
addition to sanctioned intake in the existing programs
including the following, namely: -
(a) recognition for commencement of new
teacher education programs which shall be
offered in composite institutions;
(b) permission for introduction of new
programs in existing teacher education
institutions duly recognised by the Council;
(c) permission for additional intake in the
existing teacher education programs duly
recognised by the Council;
(d) permission for shifting or relocating of
premises of the existing teacher education
institutions;
(e) permission for closure or discontinuation
of a recognised teacher education programs, or
institutions as the case may be:
Provided that for teacher education programs
offered through open and distance learning, the
respective norms and standards for each such learning
program shall be applicable."
11. Regulation 8 of the 2014 Regulations dealt with the conditions
for grant of recognition. Sub-Regulation (4) thereof read thus:
"(4) (i) No institution shall be granted recognition
under these regulations unless the institution of society
sponsoring the institution is in possession of required
land on the date of application. The land free from all
encumbrances could be either on ownership basis or
on lease from The government or Government
institutions for a period of not less than 30 years. In
cases where under relevant State or Union territory
laws the maximum permissible lease period is less
than 30 years, the State Government or Union territory
Administration law shall prevail and in any case no
building shall be taken on lease for running any
teacher training program.
(ii) The society sponsoring the institution shall have
to ensure that the post teacher education institution is a
well demarcated land area as specified by norms.
(iii) The society sponsoring the institution shall be
required to transfer an investor the title of the land and
building in the name of the institution within a period
of 6 months from the date of issue of formal
recognition order under sub- regulation (16) of
regulation 7. However, in case, the society fails to do
so due to local laws or rules or bylaws it shall intimate
in writing with documentary evidence of his inability
to do so. The Regional Office shall keep this
information on record and place it before the Regional
Committee for its approval."
The 2017 Amendment Regulations
12. The 2014 Regulations were amended by the 2017 Amendment
Regulations, which came into effect on 28th April, 2017. Regulation 8
(4) of the 2014 Regulations was, inter alia, substituted by the 2017
Amendment Regulations. So substituted, Regulation 8 (4) read thus:
"(4) No institution shall be granted recognition under these
regulations unless the institution also the sponsoring the
institution is in possession of required land free from all
encumbrances on the date of application in the said land shall
be either on ownership basis or on lease from the Government
or Government institutions for a period of not less than 30
years subject to the relevant laws of the concerned State or
Union Territory.
Provided that in cases of Central or State Government
Institutions Universities, recognition may be accorded for a
period of 5 years, on land premises, which is leased to them.
Provided further that such institution shall be required
to shift to premises with old land and building thereon, in
conformity with the specification in these regulations within a
period of 5 years from the date of recognition.
Provided also that in case of Central or State
Government Institutions or Universities, recognition may be
accorded on land or premises, which is leased to them for a
period of 30 years or more.
Provided also that in cases of Cities notified as
Category X and Y by the Government of India for the
purposes of House rent allowance, any University or College
which has been in existence for the last 10 academic years on
the date of application and not in possession of land as per
National Council for Teacher Education norms, be allowed to
apply for new Teacher Education Programs or additional
Intake exclusively on the basis of the availability of built-up
area as per the National Council for Teacher Education
Norms, if the institution has at least 1000 sq. meter of land
area on which the required infrastructure is built up.
Provided also that the relaxation in land area shall not
apply to any Physical Education program."
Facts
13. The statutory arena, within which our deliberations are required
to perambulate, being thus definitively chalked out, we may proceed
to the facts.
14. The Chairman of Shree Vaishno Devi Shiksha Samiti
(hereinafter referred to as "the Society"), which was the Society
sponsoring the petitioner-College, was the owner of an area of land,
admeasuring about 2 acres, located in Mahendergarh, Haryana.
15. Vide a registered lease deed dated 28th June, 2004, the
Chairman of the Society leased the aforesaid land, admeasuring 2
acres of land, in favour of the Society for 30 years, for the purpose of
establishing a teacher training college. In accordance with the terms of
the said lease, the building, wherein the petitioner establishment is
located, was constructed on the said land. Thereafter, in accordance
with Section 14 (1) of the NCTE Act, applications were submitted, by
the petitioner, to the NRC, seeking recognition, for conducting the B.
Ed., B. Ed. (Addl.), D. El. Ed. and M. Ed. courses.
16. Vide orders dated 12th October, 2007, 13th October, 2007 and
29th November, 2007, the NRC granted recognition to the petitioner,
for conducting the B. Ed. and B. Ed. (Addl.), D. El. Ed. and the M.
Ed. courses with an intake of 50, 100, 50 and 25 students,
respectively. Each of these orders specifically acknowledged that, on
scrutiny of the applications submitted by the petitioner, the documents
attached therewith and the affidavit submitted by the petitioner, as
well as inputs received from the team of the NRC which visited the
premises of the petitioner, and videographed the arrangements
available therein, the NRC was satisfied that the petitioner fulfilled
the requirements, for recognition, as prescribed in the NCTE Act, and
the 2005 Regulations, including norms and standards for secondary
teacher education programme such as instructional facilities, library,
accommodation, financial resources, laboratory and duly qualified
teaching staff.
17. It is not in dispute that, since the date of grant of aforesaid
recognition, the petitioner has been conducting the B. Ed., D. El. Ed
and M. Ed. courses, to the satisfaction of all concerned.
18. After the coming into effect of the 2014 Regulations, but before
their amendment by the 2017 Amendment Regulations, applications,
for recognition of teacher training programmes, for the Academic
Session 2016-2017, were invited by the NCTE vide Public Notice
dated 27th February, 2015. Having already been granted recognition,
in October 2007, for conducting the M. Ed course, the petitioner
applied, on 30th June, 2015, for being permitted additional intake in
the said course being conducted by it, from the Academic Session
2016-2017 onwards.
19. The aforesaid application, of the petitioner, promoted the
issuance, by the NRC, to the petitioner, of a Show Cause Notice,
dated 30th December, 2015, proposing rejection of the petitioner‟s
application for permission for additional intake in its M. Ed. course on
two grounds viz., firstly, that the petitioner had not submitted No
Objection Certificate (NOC) from its affiliating body, as required by
Regulation 5(3) of the 2014 Regulations, and, secondly, that the land,
on which the petitioner was situated, was on private lease, which
infracted Regulation 8(4) of the 2014 Regulations.
20. On the ground that the petitioner had failed to reply to the
aforesaid Show Cause Notice dated 30th December, 2015, the
application, of the petitioner, for grant for being permitted additional
intake in its M. Ed. course, was rejected, by the NRC, vide Refusal
Order dated 6th July, 2016.
21. The petitioner impugned the said Refusal Order, before this
Court, by way of WP (C) 2187/2018. While issuing notice on the said
writ petition on 9th March, 2018, this court directed to consider the
application of the petitioner for grant of recognition de hors the
requirement of NOC, as an interim measure.
22. The said writ petition is presently pending before this Court.
23. In compliance with the aforesaid interim direction passed by
this Court on 9th March, 2018, the NRC issued the impugned Refusal
Order, dated 13th September, 2018, once again rejecting the
application, of the petitioner, for being permitted additional intake in
its M. Ed. course. Seven grounds, for rejection, figure in the impugned
Refusal Order, which may be reproduced thus:
"As per land documents submitted by the institution,
the land is on private lease basis which is not acceptable as
per NCTE Regulations, 2014.
The institution has also not submitted the land
document for Khasra No ½ and Plot No 11, 12, 19, 22, and 37
as mentioned in online application.
Latest NOC from the District Town Planner regarding
land-use has not been submitted.
The institution has not submitted the Land Use
Certificate issued by the Competent Authority to use the land
for educational purpose.
The institution has not submitted the Non-
Encumbrance certificate issued by the Competent Authority
indicating that the land is free from all encumbrances.
The institution has not submitted the approved
Building plan signed by the Competent Government
Authority indicating the name of the course, name of the
institution, Khasra No/Plot No, total land area, total built up
area and measurements of the Multi-purpose For as well as
the other infrastructural facilities such as classrooms etc.
Certificate of accreditation has already expired."
24. The petitioner calls, into question, the aforesaid Refusal Order,
dated 13th September, 2018, in the present writ petition, to the limited
extent the said order cites the fact that the petitioner-institution is
situated on privately leased land, as a ground to reject the petitioner‟s
application. Accordingly, the writ petition prays that the NRC be
directed to reconsider the petitioner‟s application, de hors the said
requirement. Additionally, the writ petition challenges Regulation 8(4)
of the 2014 Regulations, as amended by the 2017 Amendment
Regulations, to the extent it creates a distinction between institutions
situated on land leased from the Government, vis-a-vis those situated
on land which is privately leased. For ready reference, the prayer
clause in the writ petition may be reproduced thus:
"It is therefore respectfully prayed that this Hon‟ble Court
may be pleased to: -
(a) Issue a writ of certiorari and quash Regulation 8
(4) of NCTE Amendment Regulations, 2017, notified
in the official Gazette on 28.04.2017 to the extent it
makes artificial distinction between Private and
Government lease at the same is unreasonable,
arbitrary and discriminatory and hence are ultra vires
Articles 14 and 19 of the Constitution of India; and
(b) In the alternative hold and declare that the
requirement of having land and building or ownership
basis or on Government lease as contemplated under
Regulation 8(4)(i) of the National Council for Teacher
Education (Recognition Norms and Procedure)
Regulations, 2014 does not apply retrospectively to the
case of the petitioner for the purpose of submitting
fresh applications under section 15 of NCTE Act,
1993; and
(c) Issue a writ of certiorari and quashed the order
dated 13.09.2018 passed by the Respondent No 2 and
consequently direct the said Respondent to decide the
application of the Petitioner for grant of formal
recognition under clause 7 (16) of National Council for
Teacher Education (Recognition Norms and
Procedure) Regulations, 2014 for M. Ed. (Addl) course
in the rented an already recognised premises; and
(d) pass any other and further orders (s) as may be
deemed fit."
Rival Submissions
25. Given the urgency of the issue involved, we have heard Mr.
Sanjay Sharawat, learned counsel for the petitioner, and Ms. Arunima
Dwivedi, learned counsel for the respondent, at considerable length.
26. Though no counter affidavit has been filed in response to the
notice issued in the writ petition, despite repeated opportunities, Ms.
Arunima Dwivedi submits that the counter affidavit is ready. We
have, accordingly, permitted her to urge her all contentions advanced
therein, during the course of arguments.
27. We are of the view that this writ petition is capable of being
disposed of, without entering into the issue of vires of Regulation 8(4)
of the 2014 Regulations.
28. Mr. Sharawat contends, principally, that the NRC has, in
rejecting the application of his client, confused the concept of
„recognition‟ of the institution and „permission‟ for additional intake.
Mr. Sharawat points out that, while recognition of teacher education
institutions is governed by Section 14 of the NCTE Act, permission
for starting a new course, or for being allowed additional intake in an
existing course, is governed by Section 15 thereof.
29. Mr. Sharawat, therefore, submits that the question of
recognition arises only once at the initial stage when the institution
itself is recognised. The application, dated 30th June, 2015, as
submitted by his client, he points out, was not seeking recognition,
but permission for additional intake in a course which already stood
recognised as far back as on 30th October, 2007.
30. Regulation 8 of the 2014 Regulations, therefore, he submits, did
not apply, at all, to the present case, and the rejection, of the
application, dated 30th June, 2015, submitted by his client, being
premised, as it were, on Regulation 8(4) of the 2014 Regulations, is
clearly unsustainable in law.
31. Arguing per contra, Ms. Dwivedi draws attention to clause (iii)
of Regulation 8(4) of the 2014 Regulations, before the amendment of
the said sub-regulation by the 2017 Amendment Regulations. She
submits that, at the time of application, by the petitioner, for being
permitted additional intake in its M. Ed. course, the pre-amended 2014
Regulations were in force, Regulation 8(4)(iii) whereof required the
Society to transfer and vest the title of land and building on which the
institution was situated, in the name of the institution within a period
of six months from the date of issue of formal recognition.
32. According to Ms. Dwivedi, this requirement had not been
complied with, by the petitioner, and the rejection of the petitioner‟s
application, for being permitted additional intake was, therefore,
perfectly in order.
33. Ms. Dwivedi further submits that the requirement of the land,
on which the institution was situate, having to be either in the
ownership of the Society, or under government lease, was in the
interests of preventing commercialisation of education, which was one
of the avowed objectives of the NCTE, as per clause (m) of Section 12
of the NCTE Act. To support her submission, Ms. Dwivedi places
reliance, on the order passed by the Supreme Court in Rashtrasant T.
M. S. & S. B. V. M. C. A. Vid. v. Gangadar Nilkant Shende1 in
support of her contention that the petitioner was bound to comply with
Clause 8(4)(iii) of the 2014 Regulations, in its pre-amended avatar.
Analysis
34. The challenge in the writ petition is limited, and is directed only
against the first ground on which the application, of the petitioner, for
being permitted additional intake in its M.Ed. course has been
rejected, vide the Refusal Order, dated 13th September, 2018, being
that the institution was located on land, which was on private lease.
35. Ms. Dwivedi had sought to contend that the petitioner had not
complied with clause (iii) of Regulation 8 (4) of the 2014 Regulations,
as it existed before the amendment by the 2017 Amendment
Regulations. The said sub-regulation requires the society, sponsoring
the institution, to transfer and vest the title of the land and building in
the name of the institution within a period of 6 months from the date
Order dt 10th September 2013, passed in SLP (C) 4247-48/2009
of issue of formal recognition order under sub- regulation (16) of
Regulation 7.
36. Infraction of Regulation 8(4)(iii) of the 2014 Regulations, is not
cited as one of the grounds on which the impugned Refusal Order has
come to be issued. We would not, therefore, ordinarily have been
inclined to countenance the said submission, as advanced by Ms.
Dwivedi, at all. Every official order, it is trite, has to sink, or swim,
on the basis of recitals therein, and cannot sought to be buoyed either
by averments in affidavits filed in court, or by arguments of learned
counsel. Orders, to borrow the felicitous metaphor employed by
Krishna Iyer, J., in Mohinder Singh Gill v. Chief Election
Commissioner2, are not like old wine, becoming better as they grow
older.
37. Even on merits, we are not convinced that the petitioner‟s
application for grant of permission for additional intake in its M.Ed.
course, could have been declined on the basis of Regulation 8(4)(iii)
of the 2014 Regulations. In the first place, the 2014 Regulations
stipulate no adverse consequence, which would visit the violator of
Regulation 8(4)(iii). Secondly, compliance with Regulation 8(4)(iii)
is not contemplated, either in the Act or in the 2014 Regulations
before or after their amendment by the 2017 Amendment Regulations,
as a ground on which the application for permission for additional
intake could be rejected. Thirdly, by the date of passing of the
impugned Refusal Order, dated 13th September, 2018, Regulation 8(4)
(1978) 1 SCC 405
of the 2014 Regulations, already stood amended by the 2017
Amendment Regulations, and the amended Regulation 8(4)
completely did away with the requirement contained in sub-regulation
(iii) of the pre-amended Regulation 8(4).
38. We are, therefore, of the considered opinion that sub-regulation
(iii) of Regulation 8(4) of the 2014 Regulations, prior to its
amendment by the 2017 Amendment Regulations, cannot come to the
aid of the respondent, or be cited as a justification for the decision to
refuse permission, to the petitioner, for additional intake for its M. Ed.
Course.
39. Apropos the order of the Supreme Court in Rashtrasant T. M.
S. & S. B. V. M. C. A. Vid.1, Ms. Arunima Dwivedi has drawn our
attention to the following paragraphs, with which the said order
concludes:
" We also reiterate the direction given earlier and make it
clear that all the recommendations made by the
implementation committee shall be binding on the
Government of India, the Governments of all the States and
the administration of Union Territories as also NCTE and
University Grants Commission and all of them shall
implement the same without any objection and without
modifying the same.
With the above direction, the proceedings of these
petitions are closed and the special leave petitions are
disposed of.
Those who are desirous of establishing teacher
education colleges/institutions shall be free to make
application in accordance with the new regulations. Their
applications shall be decided by the competent authority
keeping in view the relevant statutory provisions. All the
pending applications shall also be decided in accordance with
the new regulations."
40. We feel, on a reading of the aforesaid paragraphs, that they, if
anything, make it clear that the new Regulations would govern the
establishment of the teacher education institutions - as opposed to the
running of courses therein, or increasing intake thereof.
41. We are, consequently, in agreement with the submission, of Mr.
Sharawat, that the NRC has apparently, failed to appreciate the
distinction between grant of recognition - which applies at the stage
when the institution is being established, or started - and grant of
permission - which is required to be obtained whenever any new
course is started, or additional intake, in any existing course, is
desired.
42. Separate statutory dispensations, dealing with these two
eventualities, are to be found, in Sections 14, and 15, of the NCTE
Act, respectively. „Recognition‟ is granted to the institution. Grant of
recognition to an institution is governed by Section 14 of the NCTE
Act. As against this, „permission‟, to start any new course or training
in teacher education, is covered by Section 15 of the NCTE Act, and is
granted to recognised institutions. Grant of permission to start a
course would, therefore, require, a priori, the institution itself to be
recognised.
43. This distinction, between „recognition of the institution‟, and
„permission to start a course in the recognised institution‟, is also
underscored by the considerations, to be borne in mind, while
assessing the application, whether for recognition or permission, as
visualised by clause (a) of sub- section (3), of Section 14 (in the case
of recognition) and Section 15 (in the case of permission). Section
14(3)(a) requires the application, by the institution, for grant of
recognition to the institution, to be examined by assessing whether
"such institution has adequate financial resources, accommodation,
library, qualified staff, laboratory" and whether "it fulfils such other
conditions required for proper functioning of the institution for a
course or training in teacher education". As against this, Section
15(3)(a) stipulates "adequate financial resources, accommodation,
library, qualified staff, laboratory" and fulfilment, by the institution, of
"such other conditions required for proper conduct of the new course
or training in teacher education", as the relevant criteria, to be borne
in mind while granting permission, to the institution, to start a new
course or training in teacher education. The difference, between the
expressions italicised in the afore-extracted words, from Section
14(3)(a) and Section 15(3)(a), of the NCTE Act, are not legislative
tautology. It is a cardinal principle, of interpretation of statutes, that,
where, in parallel provisions of the same statutory instrument,
different expressions are used by the legislature, such different usage
is to be treated as deliberate, and with a purpose. It is not permissible,
while interpreting the instrument, either to overlook such different
usage, or to interpret the provisions concerned, in a manner which
would efface the intent behind such different usage. While assessing
an application, for grant of recognition, by a teacher education
institution, the concerned Regional Committee would, therefore, inter
alia, examine whether the institution fulfils the requisite conditions for
proper functioning of the institution itself, for the course or training in
teacher education. The emphasis, here, is on "functioning of the
institution". While assessing an application for grant of permission, to
start a course, in the recognised institution, per contra, the Regional
Committee would, examine whether, inter alia, the institution fulfils
the requisite conditions "for proper conduct of the new course or
training in teacher education". The emphasis, here, is, therefore, not
on the functioning of the institution per se, but on the proper
conducting, in the recognised institution, of the new course or training
in teacher education.
44. We may note, here, that the statutory provisions which succeed
Section 15, in the NCTE Act, too, underscore the distinction between
recognition of the institution and permission for the course or training.
Section 16 prohibits the examining body to grant affiliation, or hold
examination, "unless the institution concerned has obtained
recognition from the Regional Committee concerned, under section 14
of permission for a course or training under section 15". Section 17, in
a similar vein, empowers the Regional Committee to withdraw
recognition, where the recognised institution contravenes "any
conditions subject to which recognition under sub-section (3) of
section 14 of permission under sub-section (3) of section 15 was
granted". It is not necessary to multiply references to the other
statutory provisions, contained in the NCTE Act. Suffice it to state, at
the cost of repetition, that the distinction, as envisaged by the NCTE
Act, between recognition - which is to the institution - and permission
- which is for starting the course in the recognised institution - has
always to be borne in mind.
45. The distinction between „recognition‟ and „permission‟, is also
manifest from clauses (e) and (f) of Section 32 (2) of the NCTE Act,
vis-à-vis clause (h) thereof, For ready reference, clauses (e), (f), (g)
and (h) of Section 32(2) may be reproduced thus:
"32. Power to make Regulations:
*****
(2) In particular, and without prejudice to the
generality of the foregoing power, such regulations
may provide for all or any of the following matters,
namely: -
*****
(e) the form and the manner in which an
application for recognition is to be submitted
under sub- section (1) of section 14;
(f) conditions required for the proper
functioning of the institution and conditions for
granting recognition under clause (a) of sub-
section (3) of section 14;
(g) the form in the manner in which an
application for permission is to be made under
sub- section (1) of section 15;
(h) conditions required for the proper
conduct of a new course of training and
conditions for granting permission under clause
(a) of sub- section (3) of section 15;"
46. The nature of the lease governing the land on which the
institution is situated is, no doubt, a relevant consideration, in the
matter of grant of recognition to the institution, by virtue of
Regulation 8(4). There is, however, no provision which makes this
valid as a consideration while examining an application for permission
for additional intake in a course, in an institution which already
stands recognized, for imparting the said course. Neither has Ms.
Dwivedi been able, despite her sincere efforts, to draw our attention to
any such provision.
47. Ms. Dwivedi has, however, placed reliance on the judgments of
the Supreme Court in Swami Vivekanand College of Education v.
U.O.I.3 and Government of Andhra Pradesh v. P. Laxmi Devi4.
48. Of these, the latter decision, i.e. P. Laxmi Devi4, has been
pressed into service, only with regard to the challenge, by the
petitioner, to the vires of Regulation 8(4). Inasmuch as we are not
expressing any opinion on this aspect of the petitioner‟s challenge,
reference to the said decision may not be necessary.
49. Swami Vivekanand College3 has been cited, by Ms. Arunima
Dwivedi, to contend that there has been no retrospective application,
to the petitioner‟s case, of the 2014 Regulations. In view of our
finding that the Regulation 8(4) of the 2014 Regulations does not
make, in any manner, the application, of the petitioner, for grant of
permission for being allowed additional intake, conditional to
(2012) 1 SCC 642
(2008) 4 SCC 720
compliance therewith, the question of retrospective application of the
said provision, too, does not fall for consideration.
50. At the cost of repetition, we may note that, in any event, clause
(iii) of Regulation 8 (4) of the 2014 Regulations was no longer in
existence, when the impugned order, dated 13th September, 2018,
came to be passed. The said sub-clause was, therefore, neither in
existence at the time when recognition, for establishing the petitioner-
institution, with 50 seats in the M. Ed. course, was granted, on 13 th
October, 2007, nor was it in existence when the impugned order came
to be passed on 13th September, 2018. Though it is true that the said
proscription was in existence on 6th July, 2016, when the first Refusal
Order, rejecting the petitioners application for additional intake, came
to be passed, that Refusal Order was effectively - even if not
expressly - set aside, by the order, dated 9th March, 2018, of this
Court, whereby reconsideration of the petitioners application was
directed. By the time such reconsideration took place, and the de novo
order, dated 13th September, 2018 - impugned herein - came to be
passed, clause (iii) of Regulation 8 (3) was no longer in existence.
These facts, juxtaposed with the fact that Regulation 8 (3) dealt with
the recognition for establishing the institution, and not with
permission for additional intake in an existing course, for which
recognition already stood granted, in our view, invite the inevitable
conclusion that, in stipulating the fact that the land, on which the
petitioner-institution was located, had been taken on private lease,
rather than Government lease, as a ground to reject the petitioner‟s
application for permission for additional intake in it‟s M. Ed. course,
the NRC did not act in accordance with law.
51. In fact, we are of the view that, while examining the petitioner‟s
application, the approach of the NRC has been somewhat blinkered.
52. The petitioner was granted recognition, for establishment of its
institution, and for running its M. Ed. course with 50 students, as far
back as on 30th October, 2007. It is admitted position, on ground, that
the petitioner has been successfully running the said course, for 12
years - despite being situated on privately leased land. The
application of the petitioner was only for additional intake in the said
course.
53. The considerations, to be borne in mind, while examining an
application, by a recognised institution, for starting the course, stand
specifically delineated, in clause (a) of Section 15(3) of the NCTE
Act, as possession of "adequate financial resources, accommodation,
library, qualified staff" and "laboratory", apart from fulfilment of
"such other conditions required for proper conduct of the new course
of trading in teacher education, as may be determined by regulations".
As has already been noted hereinabove, at the time of grant of
recognition, to the petitioner with permission to conduct its M. Ed.
course with 50 students, as far back as on 13th October, 2007, the NRC
has already observed, on the basis of documentary material as well as
personal visits at the petitioner institution that it is in possession of
infrastructural facilities, requisite equipment, duly qualified staff and
library facilities etc. The impugned Order, dated 13th September, 2018,
does not find the petitioner as lacking on any count, as determined by
the 2014 Regulations, which are necessary for proper conduct of the
M. Ed. course, already being conducted by it, with an additional intake
of 50 students. The nature of the lease, relating to the land on which
the institution is situate, in our view, is not contemplated, by the 2014
Regulations, as a relevant consideration, while examining the
application, by an institution, for additional intake of students, in a
course for which recognition already stands granted to it, and which it
has been successfully conducting for a number of years.
54. In view thereof, keeping in mind the aforesaid statutory
position, as it emerges from a reading of Sections 14 and 15 of the
NCTE Act, as well as Regulation 8(4) of the 2014 Regulations,
whether before, or after, its amendment by the 2017 Amendment
Regulations, we are in agreement with the submission of Mr.
Sharawat that the petitioner‟s application, for being permitted
additional intake in its M. Ed. course, could not have been rejected on
the ground that the petitioner was situate on privately leased land.
55. This legal position, we may also note, does not appear to be res
integra, having engaged the attention of a Division Bench of the High
Court of Himachal Pradesh in Mehar Ram Ditta Memorial Physical
Education College v. Regional Director, N.C.T.E.5, authored by
Kurian Joseph, C.J. (as His Lordship then was).
2010 SCC OnLine HP 1395
56. In Mehar Ram Ditta Memorial Physical Education College5,
the petitioner-Institution, which had been recognised by the NCTE
and was running a degree course of Bachelor of Physical Education
since 2007, applied for starting a new Teacher Training Course of
Bachelor of Physical Education, which was rejected on 21st February,
2010, on the ground that the institution was not located on land which
was owned by it or taken on lease from Government or Government
institutions, as required by Clause 8.7(i) of the NCTE Regulations,
2009. Para 6 of the report, which speaks eloquently for itself, reads
thus:
"6. It is also to be seen that the Regulation speaks only of
recognition of an institution and not sanctioning of a course.
It is also to be seen that the petitioner has constructed is own
building. Once the institution has already been granted
recognition in terms of the Regulations which existed at the
time of recognition, the N.C.T.E. cannot insist for compliance
with the Regulations framed thereafter, while an application
for a new course is considered. The Regulations extracted
above, applies only for recognition of the institution and not
for sanctioning of a course. Even otherwise, the petitioner
having satisfied all the conditions for recognition of
institution as per the then existing Regulations and the
N.C.T.E. having recognised the institution, the N.C.T.E.
cannot refuse to sanction a new course, on the ground that the
institution does not satisfy the requirements in terms of the
2009 Regulations, in case the institution is otherwise eligible.
2009 Regulations would govern the case of institutions for
recognition after 2009. It cannot retrospectively apply to an
institution, like the petitioner, which had already been
recognised in terms of 2005 Regulations. Therefore, in case
the petitioner otherwise satisfies the requirements for the
teacher training course in B.P.Ed., the application cannot be
rejected on the only ground of the institution not satisfying
the conditions regarding the possession of land as per 2009
Regulations."
(Emphasis supplied)
57. We express our respectful agreement with the views expressed
by the High Court of Himachal Pradesh in the aforesaid judgment,
which fortify our opinion.
58. Resultantly, the impugned Order dated 13 th September, 2018
would be required to be set aside, to the extent it cites the fact that the
petitioner-institution is located on land taken on private lease, as a
factor to reject the petitioners request for being permitted additional
intake, in its M. Ed. course.
59. The fact that the petitioner-institution is located on land taken
on private lease is cited as the very first ground, for rejecting the
petitioner‟s application for additional intake. Significantly, the other
factors, cited in the impugned Order, dated 13th September, 2018, i.e.
the non-submission of land documents, NOC from the District Town
Planner, Land Use Certificate by the competent authority, Non-
Encumbrance certificate and approved Building Plan, are all curable
defects - if they are defects at all. Insofar as the Certificate of
Accreditation of the petitioner is concerned, the writ petition avers that
the said requirement is subject matter of challenge, before this Court,
in cognate proceedings. Besides, the impugned Refusal Order is
essentially by way of an adjunct to the Refusal Order dated 6 th July,
2016, to the extent the former Order also cites non-submission of
NOC by the affiliating body, as a ground for rejecting the petitioners
application. Whether such NOC, from the affiliating body, is required,
in law, or not and, if so required, whether such requirement is
reasonable, or unreasonable, is subject matter of WP (C) 2187/2018,
preferred by the petitioner and presently pending before this court.
Submissions, by the learned counsel before us in these proceedings,
were also limited to the first ground of refusal in the impugned
Refusal Order dated 13th September, 2018, vis-à-vis that the petitioner
institution was located on land taken on private lease. In the
circumstances, we are not in a position to set aside, wholesale, the
decision, of the NRC, to reject the petitioners application for
additional intake. We, therefore, restrict this judgment to the specific
prayers in this writ petition, which are essentially directed against the
requirement - as the NRC views it - of the land, on which the
institution is located, having to be on Government lease, as a
delimiting factor, to grant of permission, to the institution, for
additional intake. In our view, no such factor exists, in the extant
legislature regime, as governed by the NCTE Act and the 2014
Regulations.
Conclusion
60. In view of the aforesaid discussion, this writ petition is allowed
in the following terms, and to the following extent:
(i) We clarify that the location, of the petitioner institution,
on land, which is on private lease, cannot be treated as a ground
to reject the petitioner‟s application for being permitted
additional intake in its M. Ed. course.
(ii) The NRC is directed to reconsider the petitioner‟s
application for grant of additional intake and pass a fresh order,
uninfluenced by the fact that the institution is located on land
which is on private lease.
(iii) In the course of such reconsideration, it would be
permissible for the petitioner to establish that the other
"defects", cited in the impugned Order dated 13th September,
2018, stand cured.
(iv) We make it clear that the reconsideration of the
petitioners application, in accordance with our direction at (iii)
hereinabove, would be limited to the factors mentioned in the
impugned Order dated 13th September, 2018. It would not be
permissible for the NRC to rely on any new factors, to reject the
petitioner‟s application.
(v) The petitioner shall be entitled to an opportunity of
personal hearing before the NRC, in its next meeting, the date
and time whereof would be intimated to the petitioner by
registered Post as well as by e-mail.
61. Inasmuch as the impugned Refusal Order was issued in
compliance with the directions contained in the interim order dated 9 th
March, 2018, passed in WP (C) 2187/2018, which is presently
pending before this Court, the de novo order passed in compliance
with the above directions shall also remain subject to the outcome of
the WP (C) 2187/2018.
62. Needless to say, should the petitioner be aggrieved by any order
that is passed by the respondent, the petitioner would be entitled to
challenge the same in accordance with law.
63. We make it clear that we have not expressed any opinion
regarding the vires of Regulation 8(4) of the 2014 Regulations (as
amended by the 2017 Amendment Regulations).
64. There shall be no order as to costs.
C. HARI SHANKAR, J.
CHIEF JUSTICE
FEBRUARY 18, 2020
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