Gauhati High Court
WP(C)/821/2024 on 24 July, 2025
GAHC010029142024
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
Writ Petition (Civil) No. 821/2024.
HAM-AK College of Higher Education,
Represented by its Director Inamul Hassan,
S/o Abdul Mazid,
R/o Hatizuzua,
P.O. - Hatizuzua,
P.S. - Jajori,
Dist. - Nagaon, Assam.
...... Petitioner.
-Versus-
1. The State of Assam,
Represented by Secretary to the Government of Assam Education
Department, Dispur, Guwahati (Assam),
PIN - 781006.
2. State Council of Education Research and Training (SCERT), Assam,
Represented by its Director, DPI, Kahilipara, Guwahati (Assam),
PIN - 781019.
3. National Council for Teacher Education (NCTE),
Represented by Regional Director, Eastern Regional Committee, G - 7,
Sector - 10 Dwarka,
Landmark - Near Metro Station, New Delhi, 110075.
4. The Gauhati University,
Represented by the Registrar of Gauhati University,
Gopinath Bordoloi Nagar,
Guwahati, Assam,
PIN - 781014.
5. Secretary to the Government of Assam,
Page 1 of 29
Higher Education Department, Dispur, Guwahati - 06.
...... Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the petitioner :- Mr. A.C. Buragohain, Sr. Adv.,
Ms. J. Tamuli.
Advocate for the respondent Nos. 1 & 5 :- Mr. S. Das.
Advocate for the respondent No. 2 :- Mr. B. Gogoi.
Advocate for the respondent No. 3 :- Mr. I. Alam.
Advocate for the respondent No. 4 :- Mr. P.J. Phukan.
Date of Hearing :- 14.05.2025.
Date of Judgment & Order :- 24.07.2025.
JUDGEMENT & ORDER (CAV)
Heard Mr. A.C. Buragohain, learned senior counsel assisted by Ms. J.
Tamuli, learned counsel for the petitioner; Mr. S. Das, learned standing counsel
of Higher Education Department for the respondent Nos. 1 & 5; Mr. B. Gogoi,
learned standing counsel of SCERT for the respondent No. 2; Mr. I. Alam,
learned standing counsel of NCERT for the respondent No. 3; and Mr. P.J.
Phukan, learned standing counsel for Gauhati University, the respondent No. 4.
2. In this petition, under Article 226 of the Constitution of India, the
petitioner college has prayed for issuing direction to the respondent No. 4
to issue consent for affiliation/No Objection Certificate (NOC hereinafter)
so as to enable it to apply „online‟ to NCTE to get recognition for B.Ed.
College as applied for; and to direct the other respondents to give
affiliation and final recognition as the NCTE authority had already
accepted a sum of Rs. 4,84,000/- being the fee; and also to issue direction
to the respondent Nos. 1 & 4 not to give effect or to abstain from giving
effect to the Notification, dated 24.05.2022 (Annexure - 3), in view of the
Page 2 of 29
E.C. Resolution No. R/EC-02/2022/15(b), dated 29.03.2022; and also to
quash the same.
Background Facts:-
3. The background facts, leading to filing of the present petition, are
adumbrated herein below:-
"The petitioner college is an Educational Institution run by HAM-
AK Rural Development Foundation at HAM-AK Mahol, Hatizuzua in
the district of Nagaon and it has been working in the field of
imparting education since the year 2011 and with a view to
undertake the teacher education, applied to the Gauhati
University (GU hereinafter) for NOC/consent of affiliation and to
secure affiliation for B.Ed. and B.P.Ed. 2nd year courses and the
said application was made as per stipulation of the National
Council for Teacher Education (NCTE hereinafter) Regulations,
2014, on 23.03.2022, which was received by the University on
28.03.2022.
But, thereafter, the University authority has issued the
impugned notification dated 24.05.2022, after the application was
made, stating that an Executive Council Resolution was passed on
29.03.2022, bearing No. R/EC-02/2022/15(b), to the effect that
any institution has to seek a NOC first from the Government in
order to obtain a NOC/consent of affiliation from the GU.
It is the pleaded case of the petitioner college that the
impugned order was issued in violation of the guidelines
stipulated under NCTE Regulations, 2014 and judgment passed
by Hon'ble Supreme Court in the case of State of Maharashtra
vs. Sant Dynaeshwar Shikshan Shastra Mahavidyalaya &
Others, in Civil Appeal No. 1859/2006, wherein it was held
that NOC from the State Government is absolutely not required
for the University to provide NOC/consent for affiliation."
4. The respondent No. 4 (GU) has filed its affidavit-in-opposition,
wherein a stand has been taken that the petitioner college had earlier filed
one writ petition, being W.P.(C) No. 794/2023, on 06.02.2023, challenging
two communications of the GU, being Memo No.
GU/AFF/Inspection/2022/5238-41, dated 18.08.2022 and Memo No.
GU/AFF/Inspection/2022/5242-45, dated 18.08.2022, as regards
inspection of the petitioner college, with the interim prayer „to give NOC to
the petitioner‟s college for applying to NCTE for recognition of 4 years
Integrated B.A. B.Ed. & B.Sc. B.Ed. Programme‟.
4.1. In addition to the aforementioned writ petition, the petitioner
college has also filed two other writ petitions, being W.P.(C) No.
3782/2022 and W.P.(C) No. 4212/2024 in the similar subject matters
which are pending before this court without any interim order and that
there is material suppression of facts by the petitioner and on this count
alone the petition is liable to the dismissed, in view of the principles of
res-judicata.
4.2. It is also stated that HAM-AK Rural Development Foundation has
one more institute namely, HAM-AK Rural College of Education, which is
already affiliated to the GU in the same locality, with the same Director,
for the same purpose of running B.Ed. Programme and on 23.06.2022, a
communication has been received from the aforesaid petitioner college
requesting to issue NOC for B.A. B.Ed. and B.Sc. B.Ed. courses and the
said communication was not indicated in the said writ petitions and in the
meantime, a communication has been received from the office of the
Additional Director General of Police, CID, Assam, on 01.07.2022,
requesting to provide documents/information whether the institutes
namely:- (a) HAM-AK Rural College of Education at Chalchali, Nagaon
Dhing Road; (b) HAM AK National Secondary & Senior Secondary School
at Chalchali, Nagaon Dhing Road; (c) HAM-AK Rural ITI at Chalchali,
Nagaon Dhing Road; and (d) HAM-AK Group of Institution at Chalchali,
Nagaon Dhing Road; are affiliated or not and also requested to provide
official documents in this regard and the said communication was sent in
connection with a case, registered in the Nagaon Sadar Police Station,
being Case No. 1845/2020, under Sections 406/420/468/471/34 of the
IPC. Thereafter, another communication has been received from the said
office of the Additional Director General of Police, CID, Assam, on
05.08.2022, requesting to provide documents relating to HAM-AK Group of
Institution at Chalchali, Nagaon Dhing Road.
4.3. Thereafter, two communications have been issued for Joint
Inspection, under Memo No. GU/AFF/Inspection/2022/5238-41, dated
18.08.2022, and GU/AFF/Inspector/2022/5242-45, dated 18.08.2022, that
GU is an affiliating state funded institute and it could issue direction
applicable to all colleges under its jurisdiction, in tune with the provisions
of the Gauhati University Act, 1947 as well as the
Statutes/Ordinances/Rules, etc. framed there under.
4.4. It is also stated that the petitioner college has not applied before
the GU for inspection, which is misleading in the context of the instant
matter and that the permission fees have been deposited by the petitioner
college after more than one year, possibly due to the lodging of the FIR in
connection with the Nagaon Sadar P.S. Case No. 1845/2020, under
Sections 406/420/468/471/34 of the IPC and it has also come to light that
the Director of the petitioner college, is also the Secretary of aforesaid
HAM-AK Rural Development Foundation and that the aforesaid Nagaon
Sadar P.S. Case was lodged against the said Director and his brother
(Principal) and that they were granted pre-arrest bail on 20.10.2020, in AB
No. 2633/2020 in connection with the aforesaid case and that the GU
authorities have kept in abeyance the affiliated status of the petitioner
college by a communication, being No. GU/AFF/2023/7064-69, dated
01.09.2023, and regarding the said affiliation status under the University
is still pending before this court.
4.5. It is also stated that the GU Notification dated 24.05.2022 and the
EC Resolution dated 29.03.2022, regarding submitting NOC from the
Government is completely in tune with the relevant laws of the land and
under such circumstances, it is contended to dismiss the petition.
5. The petitioner college has submitted its reply to the aforementioned
affidavit filed by the respondent No. 4 denying the statements and
averments made in the same and it is also stated that the subject matter
of W.P. (C) No. 794/2023, relates to the B.Sc. B.Ed. and B.A. B.Ed.
courses. Similarly, the subject matter of W.P.(C) No. 3782/2022 relates to
the courses of LL.B & B.A. LL.B and W.P.(C) No. 4212/2024 relates to the
matter of deleting the name of the affiliated colleges from the list of
affiliated colleges to GU, without notice.
5.1. It is further stated that the criminal cases lodged against the
Director, is no way relevant to the present case and that several criminal
cases/police cases are pending against the GU and its officials including its
former Vice-Chancellor, who retired on 20.08.2024, also.
5.2. It is also stated that the allegation leveled against the petitioner
college is vague and therefore, it is contended that this petition may be
allowed.
Submissions:-
6. Mr. Buragohain, learned senior counsel for the petitioner submits
that the petitioner college had applied to the respondent authorities for
application for NOC/consent of affiliation for B.Ed. and B.P. Ed. 2nd year
courses and the said institution was registered under Societies
Registration Act and the respondent Gauhati University, vide impugned
notification dated 24.05.2022, had notified that henceforth Gauhati
University will accord permission to open new colleges/streams/subjects
after obtaining NOC from the Government by respective institutions and as
such, all concerned who have applied for the same, but pending for
decision are requested to submit Government‟s NOC to the office of the
Director, College/Development/Council and without NOC the same cannot
be processed and the said Notification was issued vide EC Resolution No.
R/EC-02/2022/15(b), dated 29.03.2022. Mr. Buragohain further submits
that the aforementioned notification came to be issued on the basis of one
OM issued by the Government, vide OM No. AHE.843/2017/52, dated
25.02.2019, which relates to granting of permission to affiliation accorded
by the university and that as per guideline of NCTE, to start a B.Ed
College/Institution, permission is not required from the State Government
and that as the Gauhati University refused to grant permission for want of
NOC, thereby violated Regulation 5(3) of the NCTE Notification dated
28.11.2014 and the amended Regulation, notified vide Notification being
F. No NCTE-Regl012/13/2021- Reg. Sec.-HQ., dated the 4th May, 2022,
whereby it is provided that the application submitted to NCTE requires
NOC issued by the concerned affiliation body only and not from the State
Government and as such, the impugned Notification is unsustainable and
it violates the provision of NCTE Act, 1993. Therefore, Mr. Buragohain has
contended to set it aside and to issue direction to the university to grant
affiliation to the petitioner college.
6.1. In support of his submission, Mr. Buragohain has referred following
decisions:-
(i) State of Maharashtra vs. Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya and others, in Civil Appeal
No. 1859/2006;
(ii) Pharmacy Council of India vs. Rajeev College of
Pharmacy and Others, in Civil Appeal No. 6681/2022;
and
(iii) Thirumurruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Educational and
Charitable Trust vs. State Of Tamil Nadu and
Others, reported in (1996) 3 SCC 15.
7. On the other hand, Mr. Phukan, learned standing counsel for the
respondent Gauhati University has vehemently opposed this petition and
submits that the Executive Council, the highest authority of the university
has taken a policy decision and being a State University, the Gauhati
University is bound by the Rules and Regulations of the State Government
and unless NOC is obtained, as per OM issued by the State Government,
the university is not in a position to grant affiliation to the petitioner
college. Under such circumstances, Mr. Phukan has contended to dismiss
the petition.
7.1. In support of his submission, Mr. Phukan has referred following
decisions:-
(i) Adarsh Shiksha Mahavidyalaya and others vs.
Subhash Rahangdale and others, reported in (2012) 1
SCC 425;
(ii) Maa Vaishno Devi Mahila Mahavidyalaya vs. State of
Uttar Pradesh and Others, reported in (2013) 2 SCC
617;
(iii) Rasid Javed and Others vs. State of Uttar Pradesh
and Another, reported in (2010) 7 SCC 781;
(iv) State of Punjab vs. Anshika Goyal and others,
reported in (2022) 3 SCC 633; and
(v) Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya
(Supra).
8. In view of the contentions, being canvassed by the parties the core
issue, to be decided by this Court is
(i) Whether on the basis of Executive Council's
Resolution No. R/EC-02/2022/15(b), dated
29.03.2022 and subsequent Notification dated
24.05.2022, adopted and issued on the basis of the
Office Memorandum dated 25th February, 2019 the
petitioner College has to obtain NOC from the
State Government?
9. Having heard the submissions of learned counsel for both the
parties, I have carefully gone through the petition as well as the
documents placed on record and also the decisions referred by both the
parties. Also, I have carefully gone through the National Council for
Teacher Education (Recognition Norms and Procedure) Regulations, 2014,
notified on 28th November, 2014 specially Regulation 5(3) and the
amended Regulation, notified vide Notification being F. No NCTE-
Regl012/13/2021- Reg. Sec.-HQ., dated the 4th May, 2022. Before a
discussion is directed to the issue in question, it would be in the interest of
justice to understand the legal framework presently occupying the field.
The Legal Framework :-
10. The National Council for Teacher Education (Recognition Norms and
Procedure) Regulations, 2014 read as under:-
"Regulation 5:- Manner of making application and
time limit:--
(l) An institution eligible under
regulation-4, desirous of
running a teacher education
programme may apply to the
concerned Regional Committee
for recognition in the
prescribed application form
along with processing fee and
requisite documents.
Provided that an
institution may make
simultaneous applications for
shifting of premises or
additional intake, or
additional teacher education
programme as the case may be.
Provided further that an
existing institution may make
an application for closure or
discontinuation of one or
several teacher education
programmes recognized by the
Council.
(2) The application form may be
downloaded from the website of
tbe Council, namely, www.ncte-
india.or^ and different forms
may be downloaded for
programmes offered through
open and distance learning.
(3) The application shall be
submitted online
electronically along with the
processing fee and scanned
copies of required documents
such as no objection
certificate issued by the
concerned affiliating body.
While submitting the
application, it has to be
ensured that the application
is duly signed by the
applicant on every page,
including digital signature at
appropriate place at the end
of the application.
(4) While submitting the
application online a copy of
the registered land document
issued by the competent
authority, indicating that the
society or institution
applying for the programme
possesses land on the date of
application, shall be attached
along with the application.
(5) Duly completed application in
al! respects may be submitted
to the Regional Committee
concerned between 1st March to
31^ May of the preceding year
from the academic session for
which recognition is sought:
Provided that the aforesaid
period shall not be applicable
for submission of application
to innovative programme of
teacher education.
(6) All applications received
online from 151 March to 31"
May of the year shall be
processed for the next
academic session and final
decision, either recognition
granted or refused, shall be
communicated to the applicant
on or before the 3rd day of
March of the succeeding year.
Regulation 6:- Processing Fees:-
The processing fee as prescribed under rule 9
of the National Council for Teacher Education
Rules, 1997 as amended from time to time,
shall be paid by the applicant for processing
of an application for grant of recognition to
an institution to conduct a teacher education
programme or addition to programme or intake
in the existing programme, online to the
designated banks as may be notified by the
Council.
Regulation 7:- Processing of applications:-
(1) In case an application is not complete,
or requisite documents are not attached
with the application, the application
shall be treated: incomplete and
rejected, and application fees paid
shall be forfeited.
(2) The application shall be summarily
rejected under one or more of the
following circumstance:-
(a) Failure to furnish the application
fee, as prescribed under rule 9 of
the National Council for Teacher
Education Rules, 1997 on or before
the date of submission of online
application;
(b) Failure to submit print out of the
applications made online along with
the land documents as required under
sub-regulation (4) of Regulation 5
within fifteen days of the
submission of the online
application.
(3) Furnishing any false information or
concealment of facts in the application,
which may have bearing on the decision
making process or the decision
pertaining to grant of recognition,
shall result in refusal of recognition
of the institution besides other legal
action against its management. The order
of refusal of recognition shall be
passed after giving reasonable
opportunity through a show cause notice
to the institution.
(4) A written communication along with a
copy of the application form submitted
by the institution shall be sent by the
office of Regional Committee to the
State Government or the Union territory
administration and the affiliating body
concerned within thirty days from the
receipt of application, in chronological
order of the receipt of the original
application in the Regional Committee.
(5) On receipt of the communication, the
State Government or the Union territory
administration concerned shall furnish
its recommendations or comments to the
Regional Committee concerned within
forty five days from the date of issue
of the letter to the State Government or
Union territory, as the case may be. In
case, the State Government or Union
Territory Administration is not in
favour of recognition, it shall provide
detailed reasons or grounds thereof with
necessary statistics, which shall be
taken into consideration by the Regional
Committee concerned while disposing of
the application.
(6) If the recommendation of the State
Government is not received within the
aforesaid period, the Regional Committee
concerned shall send a reminder to the
State Government providing further time
of another thirty days to furnish their
comments on the proposal. In case no
reply is received, a second reminder
shall be given for furnishing
recommendation within fifteen days from
the issue of such second reminder. In
case no reply is received from the State
Government within aforesaid period the
Regional Committee shall process and
decide the case on merits and placing
the application before the Regional
Committee shall not be deferred on
account of non-receipt of comments or
recommendation of the State Government.
(7) After consideration of the recommendation
of the State Government or on its own
merits, the Regional Committee concerned
shall decide that institution shall be
inspected by a team of experts called
visiting team with a view to assess the
level of preparedness of the institution
to commence the course. In case of open
and distance learning programmes,
sampled study centres shall be
inspected. Inspection shall not be
subject to the consent of the
institution, rather the decision of the
Regional Committee to cause the
inspection shall be communicated to the
institution with the direction that the
inspection shall be caused on any day
after ten days from the date of
communication by the Regional Office.
The Regional Committee shall ensure that
inspection is conducted ordinarily
within thirty days from the date of its
communication to the institution. The
institution shall be required to provide
details about the infrastructure and
other preparedness on the specified
proforma available on the website of the
Council to the visiting team at the time
of inspection along with building
completion certificate issued by the
competent civil authority, if not
submitted earlier:
Provided that the Regional
Committee shall organise such
inspections strictly in chronological
order of the receipt of application for
the cases to be approved by it:
Provided further that the members
of the visiting team for inspection
shall be decided by the Regional
Committee out of the panel of experts
approved by the Council and in
accordance with the visiting team policy
of the Council.
(8) At the time of the visit of the team of
experts to an institution, the
institution concerned shall arrange for
the inspection to be videographed in a
manner that all important
infrastructural and instructional
facilities are videographed along with
interaction with the management and the
faculty, if available at the time of
such visit. The visiting teams, as far
as possible, shall finalise and courier
their reports along with the video
recordings on the same day:-
Provided that the videography
should clearly establish the outer view
of the building, its surroundings,
access road and important infrastructure
including classrooms, labs, resource
rooms, multipurpose hall, library and
others. The visiting team shall ensure
that the videography is done in a
continuous manner, the final unedited
copy of the videography is handed over
to them immediately after its recording
and its conversion to a CD should be
done in the presence of visiting team
members:-
Provided further that at the time
of inspection for new courses or
enhancement of intake of the existing
course, the visiting team shall verify
the facilities for existing recognized
teacher education courses and ascertain
the fulfillment and maintenance of
regulations and norms and standards for
the existing courses as well.
(9) The application and the report along
with the video recordings or CDs of the
visiting team shall be placed before the
Regional Committee concerned for
consideration and appropriate decision.
(10) The Regional Committee shall decide
grant of recognition or permission to an
institution only after satisfying itself
that the institution fulfills all the
conditions prescribed by the National
Council under the Act, rules or
regulations, including, the norms and
standards laid down for the relevant
teacher education programmes.
(11) In the matter of grant of recognition,
the Regional Committees shall strictly
act within the ambit of the Act, the
regulations made there under including
the norms and standards for various
teacher education programmes, and shall
not make any relaxation thereto.
(12) The Regional Director, who is the
convener of the Regional Committee,
while putting up the proposals to the
Regional Committee, shall ensure that
the correct provisions in the Act, rules
or regulations including norms and
standards for various teacher education
programmes are brought to the notice of
the Regional Committee so as to enable
the Committee to take appropriate
decisions.
(13) The institution concerned shall be
informed, through a letter of intent,
regarding the decision for grant of
recognition or permission subject to
appointment of qualified faculty members
before the commencement of the academic
session. The letter of intent issued
under this clause shall not be notified
in the Gazette but would be sent to the
institution and the affiliating body
with the request that the process of
appointment of qualified staff as per
policy of State Government or University
Grants Commission or University may be
initiated and the institution be
provided all assistance to ensure that
the staff or faculty is appointed as per
the norms of the Council within two
months. The institution shall submit the
list of the faculty, as approved by the
affiliating body, to the Regional
Committee.
(14)(i) All the applicant institutions
shall launch their own website
with hyperlink to the Council and
corresponding Regional Office
websites soon after the receipt of
the letter of intent from the
Regional Committee, covering,
inter alia, the details of the
institution, its location, name of
the programme applied for with
intake; availability of physical
infrastructure, such as land,
building, office, classrooms, and
other facilities or amenities;
instructional facilities, such as
laboratory and library and the
particulars of their proposed
teaching faculty and nonteaching
staff with photographs, for
information of all concerned. The
information with regard to the
following shall also be made
available on the website, namely:-
(a) sanctioned programmes along
with annual intake in the
institution;
(b) name of faculty and staff in
full as mentioned in school
certificate along with their
qualifications, scale of pay
and photograph;
(c) name of faculty members who
left or joined during the
last quarter;
(d) names of students admitted
during the current session
along with qualification,
percentage of marks in the
qualifying examination and in
the entrance test, if any,
date of admission and such
other information;
(e) fee charged from students;
(f) available infrastructural
facilities;
(g) facilities added during the
last quarter;
(h) number of books in the
library, refereed journals
subscribed to, and additions,
if any, in the last quarter.
(ii) The institution shall be free to
post additional relevant
information, if it so desires.
(iii) Any false or incomplete
information on its website shall
render the institution liable for
withdrawal of recognition.
(15) The institution concerned, after
appointing the requisite faculty or
staff as per the provisions of norms and
standards of respective programmes, and
after fulfilling the conditions under
regulation 8, shall formally inform
about such appointments to the Regional
Committee concerned.
(16) The letter granting approval for the
selection or appointment of faculty
shall also be provided by the
institution to the Regional Committee
with the document establishing that the
Fixed Deposit Receipts of Endowment Fund
and Reserve Fund have been converted
into a joint account and after receipt
of the said details, the Regional
Committee concerned shall issue a formal
order of recognition which shall be
notified as provided under the Act.
(17) In cases, where the Regional Committee,
after consideration of the report of the
visiting team and other facts on record,
is of the opinion that the institution
does not fulfill the requirements for
starting or conducting the course or for
enhancement of intake, after giving an
opportunity of being heard to the
institution pass an order refusing to
allow any further opportunity for
removal of deficiencies or inspection
for reasons to be recorded in writing:-
Provided that against the order
passed by the Regional Committee, an
appeal to the Council may be preferred
as provided under section 18 of the Act.
(18) The reports of inspection of the
institutions along with the names of the
visiting team experts shall be made
available on the official website of the
Regional Committee concerned after the
same have been considered by the
Regional Committee.
(19) The Regional Committee shall process the
application for closure in the manner
prescribed for the processing of
applications for new programmes or
additional programmes or additional
intake.
10.1. National Council for Teacher Education (Recognition Norms and
Procedure) Amendment Regulations, 2022 notified vide Notification being
F. No. NCTE-Regl012/13/2021- Reg. Sec.-HQ., dated the 4th May, 2022
provides as under:-
"Regulation 5(3) was amended in the year 2022, vide
Notification dated the 4th May, 2022 which read as
under:-
6. In the Principal regulations, in regulation
5, (i) (ii) sub-regulation (2) shall be
omitted; for sub-regulation (3), the
following sub-regulation shall be
substituted, namely:-
(3) The application shall be submitted online
electronically on National Council for
Teacher Education portal along with the
processing fee, as applicable, and
scanned copies of required documents
including no objection certificate issued
by the concerned affiliating body,
original registered land document and the
document indicating that the society or
institution applying for the programme
possesses land on the date of application
issued by competent authority."
10.2. University Grants Commission [Affiliation Of Colleges By
Universities] Regulations, 2009 provides as under:-
"4.5. Procedure for granting Temporary Affiliation.
(i) The University shall make a preliminary
scrutiny of the application submitted
within time as specified by the NCTE or by
law, and if found satisfactory, issue a
letter of intent, within two weeks from
the date of receipt of the application by
the University to course an inspection
within a period of seven days for physical
verification of all submissions made to
the NCTE.
(ii) The college shall be subjected to an
inspection by the University through a
committee of experts consisting of:
1) Dean, Faculty of Education /Dean, Students
Welfare -Chairperson;
2) One Head of the P.G. Department nominated
by the Vice Chancellor;
3) Assistant Registrar (Examination /
Permission) nominated by the Vice
Chancellor or any person;
(iii) The report of the inspection committee
shall be submitted by the Chairperson to
the University within three working days.
The University shall process the report
through its appropriate bodies and decide
to grant, or not grant, temporary
affiliation to the College, recording the
reasons in writing for its decision within
a fortnight.
(iv) The University shall be the ultimate to
decide granting, or not granting
affiliation.
(v) The University shall communicate the
decision of the University to the State
Government for grant of approval of
affiliation to the College/ Institution
within the stipulated date. The State
Government will grant approval of
affiliation on the basis of
recommendations of the Committee
constituted for examining the proposals.
(vi) The approval of grant of affiliation
received from the State Government will be
communicated to the college/institution
within the date prescribed by law by the
University."
10.3. The Office Memorandum No. AHE.843/2017/52, dated
25.02.2019, issued by the Government of Assam, Higher Education
Department, Dispur provides that the Government of Assam had issued
one Office Memorandum, dated 25.02.2019, requiring no objection for
opening of a Degree College/introduction of New subjects/Major Courses
of Study in Degree Colleges and granting of permission to affiliation
accorded by the University and the said notification came into force with
immediate effect.
10.4. Clause 2 of the aforesaid OM provides that prior no objection for
opening of a new college/new subjects/major courses of studies shall be
required. Clause 8 of the said O.M. provides that when the University
concerned seeks prior no objection from the Government for opening a
new faculty/new subjects of studies in an affiliated college, the
Government will take necessary action for inspection of the college
concerned through the Directorate of Higher Education. Clause 9 provides
that physical verification of the college concerned will be made by an
officer of the Director of Higher Education not below the rank of Deputy
Director and the physical verification will be conducted within the following
parameters:-
(i) Need of the proposed faculty/subjects/major course of study;
(ii) Distance of the college from the other neighboring colleges
where particular faculties/subjects/major courses are being
taught together with the class wise enrollment in the
faculty/subjects/major courses under reference;
(iii) Arrangement in respect of additional accommodation required
for instruction of new faculty/subjects/major courses;
(iv) Provision for laboratories, museum, gas plan room, balance
room, dark room, departmental tea room, supply of water
and electricity as necessary;
(v) Provision for expansion of the Library; and
(vi) Financial Resources of the College to meet the actual
expenditure as required for opening of new faculty/subjects/
major courses of study.
10.5. And it appears from the stand taken by the respondent No. 4 in its
affidavit-in-opposition that the resolution of the Executive Council, dated
29.03.2022, is based upon the Office Memorandum No. AHE.843/2017/52
dated 25.02.2019, issued by the Government of Assam, Higher Education
Department, and thereafter, the impugned Notification No. GU/AFF/2022
dated 24/05/2022, was issued.
10.6. The Impugned Notification No. GU/AFF/2022, dated
24/05/2022, issued by the Gauhati University, read as under:-
NOTIFICATION
It is notified for information of all
concerned that from now onwards Gauhati University
will accord permission to open new college/stream/
subject(s) after obtaining No Objection Certificate
from the Govt. by respective institutions.
Therefore, all concerned who have already
applied for the same but are pending for a decision
are hereby requested to submit Govt. No. objection
Certificate in the office of the Director, College
Development Council. Also the College/concerned
Bodies who are interested to open new college/
stream/subject(s) are to submit Govt. No Objection
Certificate along with necessary application
without which the matter cannot be processed.
This is issued as per E.C. Resolution No.
R/EC-02/2022/15(b) dated 29.03.2022.
Sd/-
Registrar
Gauhati University
Findings of this court:-
11. Here in this case, from the documents placed on record, it appears
that the affiliating body is Gauhati University, the respondent No. 4. It
appears that the petitioner college had applied for the NOC/consent of
affiliation, to the respondent No. 4 and to secure affiliation for B.Ed. and
B.P.Ed. 2nd year course. The said application was made under the NCTE
Regulations, 2014 on 23.03.2022, and the same was received by the
respondent No. 4 on 28.03.2022. But, thereafter, the respondent No. 4,
instead of processing the application as per procedure for granting
temporary affiliation had issued a notification, dated 24.05.2022, stating
that the Executive Council has adopted a resolution that any prospective
institution has to seek a NOC from the Government in order to obtain a
NOC/Consent for affiliation from the respondent No. 4, on 29.03.2022.
Regulation 7(4), itself mandated that a written communication along with
a copy of the application form, submitted by the institution shall be sent
by the office of Regional Committee to the State Government or the Union
territory administration as the case may be.
12. Under the given facts and circumstances, I find sufficient force in
the submission of Mr. Buragohain, the learned counsel for the petitioner.
The Acts and Regulations, as discussed herein above, does not provide for
obtaining any NOC from the State Government at the time of processing
of application for No Objection Certificate by the affiliating body i.e.
respondent No. 4.
13. Notably, the National Council for Teacher Education Act, 1993 (73 of
1993), is a central legislation, and the same is binding upon the States.
The State cannot enact any law or issue any Office Memorandum or
Notification, contrary to the provision of the aforesaid Act and Regulations
framed there under. And if it is in conflict with the law enacted by the
State, including the Gauhati University Act, then also the NCTE Act and
Regulations will prevail, in view of Article 254 of the Constitution of India.
In holding so, this court derived authority from following decision of
Hon‟ble Supreme Court in the case of (i) State of T.N. vs. Adhiyaman
Educational & Research Institute, reported in (1995) 4 SCC 104,
wherein it has been categorically held that neither the State Government
nor the University have got power to enact law on the subject which falls
under Entry 66 of List I and that the existing law to the extent of
inconsistency with the provisions made in the AICTE Act is ultra vires and
unenforceable; (ii) Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Educational & Charitable Trust
(Supra), wherein Hon‟ble Supreme Court has held that prior permission
of State Government to start a new Medical College is invalid on the
ground of repugnancy. It is further held that Section 5(5) of the Medical
University Act enacted by the State Act is held as repugnant to Section 10-
A of Indian Medical Council Act; (iii) Jaya Gokul Educational Trust
vs. State of Tamil Nadu, reported in 2000 (5) SCC 231, wherein,
by re-capitulating the dictum laid down in Adhiyaman's (Supra) case,
the Supreme Court specifically ruled that the University cannot impose
conditions for affiliation in contravention of the provisions contained in the
Central Act, viz. AICTE Act. Thus, the position of law and the validity of
existing law of the State enactments have been made crystal clear in the
above stated judgments of the Supreme Court.
14. Though a stand has been taken by the respondent No. 4 in its
affidavit dated 30.09.2024 that the Notification, dated 24.05.2022
(Annexure-3) of the writ petition, that said notification is in conformity
with the Gauhati University Act, NCTE Act and Regulations, yet in view of
the discussion and finding in respect of the procedure prescribed under
the NCTE Act and Regulation, the said stand of respondent No. 4 cannot
be accepted in view of Regulation 7(4) of the National Council for Teacher
Education (Recognition Norms and Procedure) Regulations 2014, notified
on 28th November, 2014.
15. In the instant case, the application for no objection certificate from
the affiliating body, i.e. respondent No. 4, as required under Regulation
5(3) of NCTE (Recognition Norms and Procedure) Regulations, 2014, was
filed by the petitioner college on 23.03.2022, and the same was received
by the University on 28.03.2022. And it also appears that the impugned
Notification dated 24.05.2022 was issued thereafter. On receipt of the
application, the respondent No. 4 ought to have processed the same
following the procedure prescribed under Regulation 4.5, of the University
Grants Commission [Affiliation of Colleges by Universities] Regulations,
2009. And it is the Office of Regional Committee of the NCTE, under
Regulation 7(4), who is required to make a written communication along
with a copy of the application form submitted by the institution to the
State Government or the Union territory administration.
16. In that view of the matter, the act of respondent No. 4, insisting
upon NOC from the State Government, at that stage, appears to be bereft
of logic and not in conformity with the NCTE Act and Regulations and
therefore, the same is arbitrary and illegal and liable to be interfered with.
The issue, as formulated herein above stands answered accordingly.
17. I have carefully considered the submission of Mr. Phukan, the
learned standing counsel for the respondent No. 4, and in view of the
discussion and findings recorded herein above, the submission of Mr.
Phukan left this court unimpressed. It is, however, a fact that courts are
not supposed to interfere policy decision of the state but, it is not an
absolute proposition of law as because when the decisions are contrary to
existing legal framework, and arbitrary and illegal, the courts are bound to
exercise its jurisdiction. I have also gone through the decisions referred by
Mr. Phukan and also by Mr. Buragohain, the learned counsel for the
petitioner. But, this court is of the view that in order to decide the issue
raised in the present writ petition, reference to all those decisions, is
found to be not at all necessary.
18. Under the given fact and circumstances, this court finds sufficient
merit in the petition and accordingly, the same stands allowed. By a
mandamus of this court, the respondent No. 4 is directed to process the
application dated 23.03.2022 received by the respondent No. 4, on
28.03.2022, filed by the petitioner college in accordance with the
procedure prescribed under the NCTE Act and Regulations made there
under and under the University Grants Commission [Affiliation Of Colleges
By Universities] Regulations, 2009 within the time line prescribed under
the NCTE Regulations, 2014.
19. In terms of above, this writ petition stands disposed of.
JUDGE
Comparing Assistant
