Orissa High Court
Sudhansu Sekhar Bhuyan vs State Of Odisha & Others on 12 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C ) NO.26818 of 2021
In the matter of an application under Articles 226 & 227
of the Constitution of India.
..................
Sudhansu Sekhar Bhuyan .... Petitioners
& Others
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner :M/s. B. Routray,Sr.Advocate,
M/s.S.K. Samal, Adv.
For Opp. Parties :M/s. S.K. Samal,
Additional Govt. Advocate
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 12.05.2023 and Date of Judgment: 12.05.2023
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Mode.
2. Heard Mr. B. Routray, learned Senior counsel along
with Mr. S.K. Samal, learned counsel appearing for the
Petitioners and Mr. S.K. Samal, learned Additional Govt.
Advocate appearing for the State-Opp. Parties.
4. Petitioners have filed the aforesaid writ Petition inter
alia with the following prayer:
(i) Admit the writ application.
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(ii) Call for the record.
(iii) Issue RULE NISI calling upon the opposite
parties to show cause as to why the resolution dated
13.07.2021 under Annexure-4 issued by Opp. party
NO.1 in so far as the qualification for PET as provided
in Appendix-1 and the consequential Notification
dated 13.08.2021 issued by Opp. party NO.2 under
Annexure-5 in so far as the qualification meant for
PET in Secondary Schools in Sub-Clause(B) of Clause-
5 of the said notification shall not be quashed.
(iv) If the opposite parties fail to show cause or show
insufficient cause, issue a writ in the nature of
certiorari by why the resolution dated 13.07.2021
under Annexure-4 issued by Opp. party NO.1 in so far
as the qualification for PET as provided in Appendix-1
and the consequential Notification dated 13.08.2021
issued by Opp. party No.2 under Annexure-5 in so far
as the qualification meant for PET in Secondary
Schools in Sub-Clause-B of Clause-5.
(v) Issue a writ in the nature of mandamus or any
other writ/writs direction/directions directing the
opposite parties particularly opposite party No.2 to
accept and consider the candidature of the petitioners
in terms of the minimum education qualification
prescribed by the NCTE vide notification dated
12.11.2014 under Annexure-6 for recruitment to the
post of PET in Government Secondary Schools
pursuant to the notification dated 13.08.2021 under
Annexure-5.=
4. Mr. Routray, learned Senior Counsel appearing for the
Petitioners contended that all the Petitioners possess the
qualification B.A., B.P.Ed. and they were otherwise eligible
to make their applications for the post of P.E.T in terms of
the advertisement issued on 13.08.2021 under Annexure-5.
But because of the stipulation contained under Appendix-1
to the Resolution dt.13.07.2021 under Annexure-4 and
consequential incorporation of sub-clause (B) of Clause (5)
of the advertisement dt.13.08.2021 under Annexure-5, the
Petitioners since were deprived to make their applications
// 3 //
for the post of P.E.T, they are before this Court in the
present Writ Petition.
4.1. It is contended that similar Resolution issued by the
Opp. Party No.1 vide Resolution dt.27.10.2014 under
Annexure-2 prescribes the qualification for the post of
P.E.T as under.
(g) PET < +2 or its equivalent examination with
minimum 50% marks in aggregate (45% for
SC/ST/OBC/SEBC candidates) and CPED from
recognized Board/University.
Or
Degree/Post Graduate Degree in Physical Education i.e.
B.P.Ed.M.P.Ed. a (course prescribed by NCTE) from a
recognized University/Inistitutioin.
(To ensure that untrained candidates will get the training
within the stipulated period, minimum percentage of
marks is prescribed as per the guidelines of NCTE)=
4.2. Learned Sr. Counsel appearing for the Petitioners
further contended that the Petitioners because of their
possessing the B.P.Ed. qualification, in view of the
Regulation issued by the National Council for Teacher
Education (in short, <Council=) vide Notification
dt.12.11.2014 under Annexure-6, the prescription so
contained in the impugned notification dt.13.08.2021
under Annexure-5 with regard to qualification for the
post of P.E.T is not just and proper. Mr. Routray,
learned Sr. Counsel further brought to the notice of this
Court the provisions contained in the Second Schedule
of the notification issued by the Council under
Annexure-6 with regard to the qualification required for
the post of PET for their appointment in the Secondary
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High School (for Classes-IX & X) and the same is
reproduced hereunder.
Bachelor9s degree with Physical Education as an
elective subject with 50% marks
Or
Bachelor9s degree with Physical Education as an
elective subject with 45% marks and participation
in National or State of Inter-University Competitions
in sports or games or athletics recognized by
Association of India University or Indian Olympic
Association.
Or
Bachelors9 degree with 45% marks and having
participated in National or State or Inter-University
sports or games or atheletes etc.
4.3. Learned Sr. Counsel also brought to the notice of this
Court the subsequent advertisement issued under
Annexure-9 on 23.12.2021 by Opp. party No.2 wherein for
the post of PET, the minimum required percentage of 50%
mark in +2 which was there in the impugned advertisement
has been omitted. It is accordingly contended that the
Opp. parties while issuing the advertisement for the post of
P.E.T as available at Annexures-2,5 & 9 are prescribing
different standard for the post of P.E.Ts.
It is however contended that in view of the Regulation
issued by the Council under Annexure-6, the prescribed
qualification for the post of P.E.T in Secondary school
should be Bachelor Degree in Physical Education as an
elective subject with 50% mark.
4.4. With regard to the status of the Council in regulating
teacher training education, Mr. Routray relied on a decision
of the Hon'ble Apex Court in the case of Maa Vaishno Devi
// 5 //
Mahila Mahavidyalaya Vs. Stae of UP & Others, reported in
(2013) 2 SCC 617. Hon'ble Apex Court in Paragraph 28 to
36 and 40 to 42 of the judgment has held as follows:
28. For regulation and proper maintenance of norms
and standards in the teacher education system and for all
matters connected therewith, it was considered to
establish a Central National Council for Teacher
Education, for which purpose the Indian Parliament
enacted the National Council for Teacher Education Act,
1993 (for short, the 8Act9). The NCTE was to be
established in terms of Section 3 of the Act and was to
consist of the persons specified therein. For the purpose of
the present case, we are required to refer to certain
provisions of the Act. The first relevant provision which
can be referred to is Section 12 of the Act which states the
functions that are to be performed by the NCTE. Section
13 places an obligation upon the NCTE to conduct
inspection of the Institute in the prescribed manner. Other
very significant provision is Section 14 that deals with the
recognition of the Institution offering course or training in
teacher education. One of the important powers of the
NCTE is the power of delegated legislation as contained
in Section 32 of the Act. We shall deal with these
provisions along with some other relevant provisions in
some detail.
29. Under the Scheme of the Act, in terms of Section 12, it
shall be the duty of the NCTE to take all such steps as it
may think fit for ensuring planned and coordinated
development of teacher education, as per the Preamble of
the Act. It has to lay down guidelines for compliance by
recognized institutions for starting new courses of training
and for providing physical and instructional facilities,
staffing pattern and staff qualification amongst others, to
examine and review periodically the implementation of the
norms, guidelines and standards laid down by the NCTE
and to suitably advise the recognised institutions and
foremost, it must ensure prevention of commercialization
of teacher education. For the purposes of ascertaining
whether the recognised institutions are functioning in
accordance with the provisions of this Act, the Council
may cause inspection of any such institution to be made
by such person as it may direct and in such manner as
may be prescribed. A complete procedure has been
provided under Section 13 for conducting inspection of the
institution. After coming into force of the Act, 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 the Act, make an application
// 6 //
to the Regional Committee concerned in such form and in
such manner as may be determined by the
Regulations. Section 14(3)(a) provides the scope and
requirement for establishing such institution. The
recognition may be granted to an institution when it has
adequate financial resources, accommodation, library,
qualified staff, laboratory and it fulfills such other
conditions required for proper functioning of the institution
for a course or training in teacher education as may be
determined by regulations and upon such conditions as
may be imposed. If an institution does not satisfy the
requirements of Section 14(3)(a), the Council may pass an
order refusing recognition to the institution for reasons to
be recorded. Such grant and/or refusal has to be
published in the Official Gazette and communicated in
writing to the institution and to the concerned examining
body or the State Government and the Central
Government in accordance with Section 14(4). Section
14(6) will be of some significance once we deal with the
facts of the present case, as it is a provision providing
interlink between recognition of an institution by the
NCTE, on the one hand and affiliation by the examination
body, on the other. Section 14(6) reads as under :
<14(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.=
30. Linked to this very provision is the provision
of Section 16 of the Act that reads as follows :
<16. AFFILIATING BODY TO GRANT AFFILIATION AFTER
RECOGNITION OR PERMISSION BY THE COUNCIL
Notwithstanding anything contained in any other law for
the time being in force, no examining body shall, on or
after the appointed day,--
(a) grant affiliation, whether provisional or otherwise, to
any institution; or
(b) hold examination, whether provisional or otherwise, for
a course or training conducted by a recognized institution,
Unless the institution concerned has obtained recognition
from the Regional Committee concerned, under Section
14 or permission for a course or training under Section
15.=
31. The institution which does not comply with the terms
and conditions imposed or contravenes any terms and
conditions subject to which the recognition was granted,
any regulation, orders made under the Act and/or any
// 7 //
provision of the Act, the NCTE may withdraw recognition
of such recognized institution for reasons to be recorded in
writing under Section 17(1) subject to compliance of the
conditions stated therein. Once the recognition is
withdrawn, the following very serious consequences
follow in terms of Section 17(3) of the Act :
1. such institution shall discontinue the course or training
in teacher education;
2. the concerned University or the examining body shall
cancel affiliation of the institution in accordance with the
order passed under sub-section (1) with effect from the
end of the academic session next following the date of
communication of the said order.
32. Following the date of communication of such order, an
institution which carries on and offers any course of
training in teacher education in terms of Section 17(4), the
degree obtained from such an institution shall not be
treated as valid qualification for employment under any
State Government or the Central Government, Government
University or school, college or any other Government
institution.
33. From the reading of the above provisions, it is clear
that the NCTE is expected to perform functions of a very
high order and to ensure maintenance of higher
standards of education in teachers training. Default in
compliance of its orders/directions can result in very
serious consequences and, in fact, would render the
concerned institute ineffective and inoperative. Where the
recognition by the NCTE gives benefits of wide magnitude
to an institute, there the withdrawal of recognition not
only causes impediments in dispensation of teacher
training courses by that institution but the institution is
obliged to discontinue such courses from the specified
time.
34. Section 16 opens with a non obstante language and
has an overriding effect over all other laws for the time
being in force. It requires that unless the institution
concerned has obtained recognition from the Regional
Committee concerned, no examining body 8shall9, on or
after the appointed day, grant affiliation, whether
provisional or otherwise, or even hold examination,
whether provisional or otherwise, for the courses in the
teacher training programme. On the other hand, Section
17(3) also uses the expression 8shall9 thereby making it
mandatory for the University or the examining body to
cancel affiliation of the institution in accordance with the
order passed by the NCTE withdrawing the recognition of
// 8 //
the Institution. These provisions convey the significant,
vital and overriding effect of this Act in comparison to
other laws in force.
35. To perform its functions, the NCTE constitutes regional
committees which are divided into four different regions.
The purpose of constitution of these committees is to
effectively deal with the aspect of grant, continuation or
refusal of the recognition. It has two objectives to attain -
(1) convenience for all stakeholders; and (2) more effective
implementation of the provisions of the Act. Section
32 empowers the NCTE to make regulations not
inconsistent with the provisions of the Act and the Rules
made thereunder, generally to carry out the provisions of
the Act. The Regulations are to deal with various subjects
including providing of norms, guidelines and standards in
respect of minimum qualification for a person to be
employed as a teacher, starting of new courses or training
in recognized institutions, standards in respect of
examinations leading to teacher education, qualifications
and other specified matters. The Central Government, in
exercise of the power vested in it under Section 31(1) of
the Act, framed the Rules called the 8National Council for
Teacher Education Rules, 19979. These Rules, in detail,
deal with the expert members of the NCTE, powers and
duties of the Chair-person, appeals which a person could
make in terms of Rule 10 in relation to the orders passed
under Sections 15, 16 and 17 of the Act. However, these
Rules were subjected to amendment vide notification
dated 15th September, 2003.
36. Vide notification dated 13th November, 2002, the
8NCTE (Form of application for recognition, the time limit of
submissions of application, determination of norms and
standards for recognition of teacher education
programmes and permission to start new course or
training) Regulations, 20029 were notified to deal with the
prescribed procedure for making applications for
recognition as well as how it is to be dealt with and grant
and refusal of recognition. Under Regulation 8, it was
specified that the norms and standards for various
teacher education courses should be separately provided
for separate courses. Resultantly, under Appendix 3 to
Appendix 14, norms and standards in relation to various
courses, which were to be complied with by the applicant,
were specified. The object was to bring greater
transparency and specialization into the entire process of
grant of recognition to the institutions. For example, norms
and standards for secondary teacher education
programme was provided under Appendix 7. Similarly,
other courses were provided different standards.
Appendix 1A prescribed the form of an application for
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grant of recognition of teacher education
institutions/permission to start a new course or increase
in intake. This application contained all information that
was necessary for the Regional Committee to entertain an
application and know the requisite details, as
contemplated under Section 14(1)(a).
40. Under the scheme of the NCTE Act, there are three
principal bodies involved in processing the applications for
grant or refusal of recognition for running of teacher
training courses by various institutions. They are the
NCTE, the State Government, the affiliating body or the
University, as the case may be. Each of these
stakeholders has been assigned a definite role under the
provisions of the NCTE Act and even the stage at which
such role is required to be performed. The provisions of
the NCTE Act even identify the scope and extent of power
which each of these bodies is expected to exercise. As
already noticed, the NCTE Act has been enacted with the
object of constituting a National Council with a view to
achieve planned and coordinated development of teacher
education system throughout the country and also to
ensure maintenance of proper norms and standards in
teacher education system. The NCTE is a specialized body
and is expected to perform varied functions including
grant of recognition, ensuring maintenance of proper
norms and standards in relation to teacher education,
inspection of the colleges through experts and to ensure
strict adherence to the time schedule specified under the
NCTE Act and rules and regulations framed therein.
41. The NCTE Act is a special act enacted to cover a
particular field, i.e. teacher training education and, thus,
has to receive precedence over other laws in relation to
that field. No institution or body is empowered to grant
recognition to any institution under the NCTE Act or any
other law for the time being in force, except the NCTE
itself. Grant of recognition by the Council is a condition
precedent to grant of affiliation by the examining body to
an institute.
42. The non-obstante language of Section 16 requires the
affiliating body to grant affiliation only after recognition or
permission has been granted by the NCTE. The provisions
of Section 16 give complete supremacy to the expert
body/NCTE in relation to grant of recognition. In fact, it
renders the role of other bodies consequential upon grant
and/or refusal of recognition. When the NCTE is called
upon to consider an application for grant of recognition, it
has to consider all the aspects in terms of Section 14(1)(a)
of the NCTE Act. The amplitude of this provision is very
wide and hardly leaves any matter relatable to an
// 10 //
educational institution outside its ambit. To put it simply,
the NCTE is a supreme body and is vested with wide
powers to be exercised with the aid of its expertise, in
granting or refusing to grant recognition to an educational
institution. The NCTE is the paramount body for granting
the approval/recognition not only for commencing of fresh
courses but even for increase in intake, etc. The Council
has to ensure maintenance of educational standards as
well as strict adherence to the prescribed parameters for
imparting of such educational courses, including the
infrastructure. The provision and scheme of the NCTE Act
ispari materia to that of the Medical Council of India Act,
1956 and the All India Council for Technical Education
Act, 1987 etc.
4.5. It is accordingly contended that in view of the
regulation so prescribed by the council, the stipulation
contained in the impugned advertisement with regard to
the qualification for the post of PET requires interference of
this Court.
Learned Senior Counsel also contended that by virtue
of the interim order passed by this Court on 03.09.2021,
the Petitioners were permitted to take part in the selection
process, but the result has not been published in terms of
the said order.
5. Mr. S.K. Samal, learned AGA on the other hand made
his submission basing on the stand taken in the counter
affidavit as well as further affidavit filed by the Opp. Party
No.2 on 22.02.2023.
5.1. It is contended by the learned A.G.A that once the
Petitioners have made their applications pursuant to
Annexure-5, they cannot challenge the stipulations
contained in Annexure-5. It is also contended that the
binding nature of the Regulation issued by the NCTE is not
applicable in respect of Teachers for Secondary school as
the same has not been accepted by the Government and
// 11 //
only in respect of teachers in elementary School, the same
has been accepted by the Government.
6. Having heard learned counsel appearing for the
parties and after going through the materials available on
record, it is found that even though the Petitioners in terms
of Annexure-5 made their applications, but after making
such applications, they approached this Court challenging
the stipulation with regard to the qualification prescribed
for the post of PET. This Court while entertaining the Writ
Petition vide its order dt.03.09.2021 also permitted the
petitioner to take part in the selection process but subject
to the condition that the result should not be published.
Since the Petitioners immediately after making their
applications have approached this Court by challenging the
stipulation with regard to the prescribed qualification for
the post of PET, the submission of the learned Additional
Govt. Advocate that the Petitioners are not supposed to
challenge the stipulation after making their applications is
not acceptable to this Court in view of the settled position
of law.
6.1. With regard to other stand taken by the learned
A.G.A regarding non-issuance of any circular/resolution
by the Government accepting the qualification prescribed
by the Council in respect of recruitment of PETs in
Secondary Schools, the same also cannot be accepted in
view of the provision contained under Clause-2 of the
Regulation i.e. National Council for Teacher Education
(Determination for minimum qualification for person to be
recruited as Education Teachers and Physical Education
Teacher in pre-primary, Primary, Upper Primary,
// 12 //
Secondary, Sr. Secondary or Intermediate Schools or
Colleges) Regulation 2014. Regulation-3 of the said
Regulation prescribes that the Regulation shall be
applicable for recruitment of teachers and physical
Education teachers in any recognised schools imparting
pre-primary, Primary, Upper Primary, Secondary, Sr.
Secondary or Intermediate Schools or Colleges imparting
Senior Secondary Education. Similarly, in the 2nd Schedule
to the said Regulation it provides the qualification required
for the post of PET in Secondary High Schools.
6.2. In view of the Regulation issued by the Council vis-à-
vis the stand of the Opp. Parties in its earlier advertisement
issued in the year 2014 and subsequent advertisement
issued in the year 2021 and the status of the Council as
per the decision of the Hon'ble Apex Court as cited supra,
this Court is of the view that since the Petitioners possess
the qualification of B.A B.P.Ed with 50% marks and the
said qualification being in accordance with the Regulation
issued by the Council, they are eligible and entitled to take
part in the selection process in terms of Annexure-5. Since
by virtue of interim order, passed by this Court they have
been allowed to take [part in the selection process, Opp.
party No.2 is directed to publish the result thereof. On
such publication of the result, if it is found that the
Petitioners are otherwise eligible and persons similarly
situated have been appointed in terms of the
advertisement under Annexure-5, consequential action
shall be taken to provide appointment to the Petitioners.
The entire exercise shall be undertaken and completed
// 13 //
within a period of three months from the date of receipt of
this order.
The Writ Petition is accordingly allowed and disposed
of.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 12th May, 2023/sangita
Signature Not Verified
Digitally Signed
Signed by: SANGITA PATRA
Reason: Authentication of order
Location: High Court of Orissa, Cuttack
Date: 18-May-2023 17:23:16
