Rajasthan High Court - Jodhpur

Mahaveer Educational And Social ... vs State Of Rajasthan on 23 October, 2021

Bench: Dinesh Mehta

(1 of 21) [CW-2359/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Writ Petition No. 2359/2021 Surender Kaur Memorial College Of Higher Education, 24 Bb, Padmapur, Sriganganagar, Parental Society Surender Kaur Memorial Education And Social Welfare Sanstha, 24 Bb, Padampur District Sriganganagar, Through Its Secretary Harvinder Singh S/o Sh. Sarvan Singh, Aged About 50 Years, Resident Of 24 Bb Po 23 Bb Padampur, Sriganganagar 335041 (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through Secretary, Department Of College Education, Jaipur.

2. Maharaja Ganga Singh University, Bikaner (Raj.) Through Its Registrar.

3. National Council For Teacher Education, Through Its Chair Person, G-7, Sector-10, Dwarka, Landmark Near Metro Station, Delhi 110075.

4. Western Regional Committee, National Council For Teacher Education Through Its Regional Director, G-7, Sector-10, Dwarka, Landmark Near Metro Station, Delhi 110075.

----Respondents (2) S.B. Civil Writ Petition No. 2976/2021 Mahaveer Educational And Social Welfare Trust College, Ward No. 16, Kupli Road, Nayi Mandi, Gharsana, Sriganganagar, Parental Society Mahaveer Educational And Social Welfare Trust, Nayi Mandi, Gharsana, District Sriganganagar Through Its Secretary Satpal Swami S/o Shri Om Prakash Swami Aged About 51 Years, Resident Of 84/22, Kulpi Road, Tehsil And P.o. New Gharsana, District Sriganganagar.

----Petitioner Versus

1. State Of Rajasthan, Through Secretary, Department Of College Education, Jaipur.

2. Maharaja Ganga Singh University, Bikaner (Raj.) Through Its Registrar.

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3. National Council For Teacher Education, Through Its Chair Person, G-7, Sector-10, Dwarka, Landmark Near Metro Station, Delhi 110075.

4. Western Regional Committee, National Council For Teacher Education Through Its Regional Director, G-7, Sector-10, Dwarka, Landmark Near Metro Station, Delhi 110075.

----Respondents (3) S.B. Civil Writ Petition No. 9461/2021 Shri Hari Shikshak Prashikshan School, Sardar Sahar, District Churu (Raj.) Running By Society Of Shri Hari Shikshak Prashikshan Sansthan, Sardar Sahar, District Churu (Raj.) Through Its Secretary, Shri Pawan Kumar Sharma S/o Shri Mangi Lal Sharma, Aged About 42 Years, Resident Of Ward No. 23, Near Kisan Hostel, Sardar Sahar, District Churu (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education Through Its Under Secretary Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents (4) S.B. Civil Writ Petition No. 9462/2021 Savitri Devi Prashikshan Sansthan, Udairamsar, Bikaner Running By Society Of Murli Singh Yadav Memorial Prashikshan Sansthan, Udairamsar, Bikaner (Raj.) Through Its Secretary Kuldeep Yadav S/o Manmohan Singh Yadav, Aged 43 Years, Resident Of Karni Coach, Udairamsar, District Bikaner (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education Through Its Under Secretary Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

                                                                    ----Respondents


                                               (3 of 21)                   [CW-2359/2021]

(5) S.B. Civil Writ Petition No. 9523/2021

Balaji Bstc College, Hanumangarh Junction, Running By Society Of Baby Happy Modern Shiksha Samiti, Hanumangarh Junction (Raj.) Through Its Secretary, Shri Ashish Vijay S/o Shri Bhagwan Das Gupta, Aged 35 Years, Resident Of Ward No. 12, Hanumangarh Junction (Raj.).

----Petitioner

Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education Through Its Under Secretary, Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents

(6) S.B. Civil Writ Petition No. 9544/2021

Shri Durga Dan Memorial College, Sinthal, Bikaner Running By Society Of D.d. Bithu Education Trust, Peetho Ka Bas, Village Sithal, Tehsil Bikaner, District Bikaner (Raj.) Through Its Secretary Pratap Singh S/o Durga Dan, Aged 44 Years, Resident Of Village Sinthal, Tehsil And District Bikaner (Rajasthan).

----Petitioner

Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education, Through Its Under Secretary, Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

----Respondent

(7) S.B. Civil Writ Petition No. 9586/2021

Vivekanand Vidya Ashram Teacher Training School, Katar Chhoti, Tehsil Bidasar, Churu (Raj.). Running By Society Of Vivekanand Vidya Ashram Sanstha, Katar Chhoti, Tehsil Bidasar, Churu (Raj.) Through Its Secretary Shri Ram Chandra Legha S/o Shri Laxmanram, Aged About 45 Years, R/o Katar Chhoti, Tehsil Bidasar, Churu (Raj.).

----Petitioner

Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

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2.        The      Western    Regional       Committee,         National    Council   For

Teachers Education, Through Its Under Secretary, Plot No. G- 7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents

(8) S.B. Civil Writ Petition No. 9640/2021 Murli Singh Yadav Memorial Prashikshan Sansthan, Udairamsar, Bikaner Running By Society Of Murli Singh Yadav Memorial Prashikshan Sansthan, Udairamsar, Bikaner (Raj.) Through Its Secretary, Shri Kuldeep Yadav S/o Manmohan Singh Yadav, Aged 43 Years, Resident Of Karni Coach, Udairamsar, District Bikaner (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education Through Its Under Secretary, Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents (9) S.B. Civil Writ Petition No. 9788/2021 Swami Dayanand Shikshan Avam Vikas Sansthan, Plot No. 101/40 Rawla Road, Village Khajuwala, District Bikaner Through Its Secretary Dalip Kumar S/o Shri Bhoop Ram, Aged 45 Years, R/o Village Khajuwala, Tehsil Khajuwala, District Bikaner (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education Through Its Under Secretary, Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents (10) S.B. Civil Writ Petition No. 10528/2021

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Shri Krishna Shikshak Prashikshan Mahavidhyalaya, Plot No.50, Laxmangarh, Jalooki, Bharatpur Running By Society Of Pd. Late Nannuram Jankalyan Sanstha, Nagar, Bharatpur (Raj.) Through Its Secretary Shanti Swaroop Sharma S/o Nannuram Sharma, Aged 61 Years, Resident Of Behind Bus Stand, Nagar, District Bharatpur (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education Through Its Under Secretary, Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents (11) S.B. Civil Writ Petition No. 11193/2021 Udai Singh Yadav Prashikshan Sansthan, Udairamsar, Bikaner Running By Society Of Murli Singh Yadav Memorial Prashikshan Sansthan, Udairamsar, Bikaner (Raj.) Through Its Secretary Kuldeep Yadav S/o Manmohan Singh Yadav, Aged 43 Years, Resident Of Karni Coach, Udairamsar, District Bikaner (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education Through Its Under Secretary, Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents (12) S.B. Civil Writ Petition No. 11873/2021 Shri Shyam Shikshak Prashikshan Mahavidyalay, Bhadra, District Hanumangarh Run And Managed By Shri Shyam Sewa Samiti Bhadra, District Hanumangarh Through Its Secretary Virendra Kaushik S/o Shri Amarnath Kaushik, Aged 39 Years, Resident Of Ward No. 15, Bhadra, Tehsil Bhadra, District Hanumangarh.

                                                                     ----Petitioner
                                    Versus


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1.    State    Of    Rajasthan,         Through         Director,    Elementary

Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education, Through Its Under Secretary, Plot No. G-7, Sector-10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents (13) S.B. Civil Writ Petition No. 11876/2021 Shree Shyam Institute Of B.s.t.c., Plot No. 3 And 5, 7 Bhd Nohar Road, Bhadra, District Hanumangarh Run And Managed By Shri Shyam Sewa Samiti Bhadra, District Hanumangarh Through Its Secretary Virendra Kaushik S/o Shri Amarnath Kaushik, Aged 39 Years, Resident Of Ward No. 15, Bhadra, Tehsil Bhadra, District Hanumangarh.

----Petitioner Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education, Through Its Under Secretary, Plot No. G-7, Sector-10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents (14) S.B. Civil Writ Petition No. 12225/2021 M.d. College Of Education, Sector-1, Block, New Civil Lines, Hanumangarh Junction, District Hanumangarh Parental Body M.d. Public School Shiksha Samiti, Hanumangarh Junction, District Hanumangarh Through Its President Anjum Shrivastava W/o Rajeev Shrivastava, Aged 38 Years, Resident Of Sector No. 9, Gandhi Nagar, Hanumangarh Junction, District Hanumangarh (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education Through Its Under Secretary, Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

                                           (7 of 21)                  [CW-2359/2021]


                                                                 ----Respondents

(15) S.B. Civil Writ Petition No. 12547/2021 Shri Mishri Lal Dubey Mahila Teacher Training College, Kekri, District Ajmer Running By Society Of Shri Mishri Lal Dubey Memorial Sansthan, Kekri, District Ajmer (Raj.) Through Its Secretary, Shri Chandra Prakash Dubey S/o Shri Mishri Lal Dudey, Aged 59 Years, Resident Of Master Colony, Kekri, District Ajmer (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education Through Its Under Secretary, Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents (16) S.B. Civil Writ Petition No. 12893/2021 Pannadhay Bstc School, Tonk, Parental Body Manav Dharm Viklang Seva Sansthan, Tonk, Through Its Secretary Chandra Veer Singh S/o Madan Singh, Aged 42 Years, Resident Of Bhilwara (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teacher Education Through Its Under Secretary, Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents (17) S.B. Civil Writ Petition No. 13082/2021 Sanskaar Teacher Training College, Peeplu, District Tonk Parental Body Shiv Seva Samiti, Tonk, Through Its Secretary Dinesh Kumar Choudhary S/o Rambilas Choudhary, Aged 32 Years, Resident Of Plot No. 9, Civil Line, Tonk (Rajasthan).

                                                                     ----Petitioner



                                          (8 of 21)                  [CW-2359/2021]


                                     Versus


1.     State   Of    Rajasthan,         Through         Director,    Elementary

Education, Education Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education Through Its Under Secretary, Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

----Respondents (18) S.B. Civil Writ Petition No. 14130/2021 Nagfani Institute Of Stc, Village Khandi Obri, Upla Fala, Kherwara, Udaipur Run And Managed By Prathma Institute Of Education And Development, Village Kherwara, Mahaveer Colony, Kherwara, Udaipur Through Its President Amit Jain S/o Praveen Jain, Aged 45 Years, R/o Village Khandi Obri, Upla Fala, N.h. 8, Tehsil Kherwara, District Udaipur.

----Petitioner Versus

1. State Of Rajasthan, Through Director, Elementary Education, Education, Directorate, Bikaner.

2. The Western Regional Committee, National Council For Teachers Education Through Its Under Secretary, Plot No. G-7, Sector 10, Near National Highway Authority, Dwarka, New Delhi.

                                                                ----Respondents


For Petitioner(s)        :     Mr. C.S. Kotwani
                               Mr. B.S. Sandhu
For Respondent(s)        :     Mr.   Pankaj Sharma, AAG with
                               Mr.   Deepak Kumar Chandak
                               Mr.   Vivek Shrimali
                               Mr.   D.D. Chitlangi



                    JUSTICE DINESH MEHTA

                                     Order

23/10/2021





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1. These writ petitions involve common questions of facts and

law and thus, they are being disposed of jointly by this common

order.

2. The petitioners herein have set up infrastructure to

commence/continue B.Ed./D.El.Ed./STC Course in their respective

institutions and, therefore, moved applications for grant of

recognition before the competent authority under the provisions of

National Council for Teacher Education (Recognition, Norms and

Procedure) Regulations, 2014 (for short, 'the Regulations of

2014').

3. It is the assertion of the petitioners that while submitting the

application forms, requisite NOC was obtained from the state

government, whereafter their applications under the Regulations

of 2014 were processed by the National Council of Teacher

Education (for short, 'the NCTE') and after completion of requisite

formalities, Letters of Intent (LoI) have been issued by the

respondent NCTE intimating the petitioners.

4. Consequent to issuance of LoIs, as per the Regulation

No.7(13) of the Regulations of 2014, staff approval is required to

be given by the affiliating body (state government/university).

5. But as the affiliating body, namely, state

government/university are not even taking up the exercise of staff

approval, the petitioners have approached this Court seeking

requisite mandamus/direction to the affiliating bodies to conduct

inspection and grant staff approval.

6. It may be noted that so far as recognition of an institution is

concerned, Regulations of 2014 are complete code in themselves,

which have been framed in exercise of powers available to the

Central Government under Section 32(2) of the National Council

(10 of 21) [CW-2359/2021]

for Teacher Education Act, 1993 (hereinafter referred to as 'NCTE

Act') which was enacted by the Parliament under the powers

conferred by Entry No.66 of List I of Schedule VII to the

Constitution of India.

7. Learned counsel navigated the Court through various

provisions of the Regulations and pointed out that the state

government cannot sit over the request for grant of staff approval

because the Regulations enjoin upon them to grant staff approval,

of course after due verification of the staff or faculties appointed

or to be appointed by the institutions. He submitted that after

issuance of LoI, the state government is required to ensure that

the faculties or staff appointed by the applicant institute is in

accordance with the norms set by the NCTE.

8. Mr. Kotwani, learned counsel for the petitioners submitted

that regardless of issuance of letter of intent, the petitioners'

request for staff approval has not been processed by the state

government, apparently in light of the policy decision (guidelines)

dated 20.07.2021, in which the School Education Department of

the state government has decided not to grant NOC, as there are

sufficient number of institutions imparting D.P.Ed. and D.El.Ed and

the unwarranted growth of institutions is affecting the quality of

education.

9. The petitioners have challenged the policy decision dated

20.07.2021 of the state government, so also the action of the

respondents in not granting staff approval under the pretext that

the number of institutions operating in the state is sufficient.

10. Learned counsel argued that once LoI has been issued by the

competent body, i.e. NCTE, the state being an agency,

authorized/empowered to ensure the requisite infrastructure and

(11 of 21) [CW-2359/2021]

faculties are available, cannot refuse to conduct inspection for the

purpose of granting staff approval.

11. Learned counsel further submitted that in the identical

circumstances, the Jaipur Bench of this Court has recently allowed

the writ petitions vide judgment dated 06.10.2021, rendered in a

group of cases led by S.B. Civil Writ Petition No.1712/2021

(B.D.M.L. Shikshan Sansthan Vs. State & Ors.).

12. Learned counsel for the petitioners, however, pointed out

that in the above referred writ petitions allowed by the Jaipur

Bench of this Court, validity of the policy decision dated

20.07.2021 of the state government was not under challenge, nor

was the state's action guided by the policy decision dated

20.07.2021.

13. Learned counsel argued that the policy decision dated

20.07.2021, which in the cases is a genesis of state's inaction, is

beyond the powers of the state government so also powers

available under the NCTE Act and Regulations of 2014. Mr. Kotwani

argued that there have been a number of judicial pronouncements

of Hon'ble the Supreme Court, in which it has been specifically

held that the state government does not have any power to

conduct inspection about irregularities or infrastructures nor does

it have power to deny approval of staff under the guise of a policy

decision or on account of the fact that there are sufficient

institutions operating. He argued that as the field is already

occupied by the enactment framed by the Central Government,

i.e. NCTE Act, 1993, the state's policy decision or even legislative

enactment has to be concede to the provisions of the Act of 1993.

14. Learned counsel relied upon the judgments of Hon'ble the

Supreme Court rendered in the cases of State of Maharastra Vs.

(12 of 21) [CW-2359/2021]

Sant Dnyaneshwar Shikshan Shastra Mahavidyala & Ors. [(2006)

9 SCC 1] and State of Rajasthan Vs. LBS B.Ed. College & Ors.

[(2016) 16 SCC 110] in order to submit that it has been

consistent view of Hon'ble the Supreme Court that the power to

legislate and power to grant recognition solely vests in the Central

Government and NCTE and the state has only limited role as

prescribed under the Regulations of 2014.

15. Mr. Pankaj Sharma, learned Additional Advocate General, on

the other hand, submitted that the petitioners herein have not

placed on record NOCs issued by the state government. He,

however, added that the petitioners have pleaded that the state

had granted them NOCs in the year 2018, that too pursuant to

applications for recognition filed prior to coming into force the

Regulations of 2014, whereas their applications for recognition

ought to have been rejected by the NCTE as the outer limit of four

months fixed by Hon'ble the Supreme Court in its judgment

reported in (2003) 3 SCC 33, para No.17, has since passed.

16. While not disputing that the petitioners herein have been

granted NOCs by the state in the year 2019-20, learned Additional

Advocate General submitted that the same were issued only for

that particular year, when the state had opened the windows for

the institutions. But now, when sufficient number of institutions

are already in operation, there is no scope or requirement of any

further private institution(s). He added that having regard to the

number of vacancies of the teachers and number of qualified

candidates to be appointed as teachers available in the state, the

state can put a ban over establishment of more institutions.

17. He argued that the policy decision dated 20.07.2021 taken

by the state government cannot be faulted with inasmuch as,

(13 of 21) [CW-2359/2021]

State is having power to regulate the number of colleges with a

view to ensure that quality education imparted by the institutions

situated in the State, is not compromised.

18. Learned AAG also contended that the arguments advanced

by the petitioners are fallacious inasmuch as, the grant of NOC is

a pre-requisite condition even for submitting an application for

recognition. While referring to the provision contained in

Regulation No.5(3) of the Regulations of 2014, he highlighted that

even submitting of an application requires an NOC of the state and

since the petitioners herein have not filed NOCs of the state

government, they cannot claim approval of the staff or final NOC

by the state government.

19. Learned Additional Advocate General invited Court's attention

towards the following judgments of Hon'ble the Supreme Court in

support of his stand that the state does have the power to refuse

NOC or to reject application for grant of staff approval:-

(i) St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education & Anr. (2003) 3 SCC 321.

(ii) Govt. Of A.P. & Anr vs J.B. Educational Society & Anr., (2005) 3 SCC 212.

(iii) National Council for Teacher Education & Ors. Vs. Shri Shyam Shiksha Prashikshan Sansthan & Ors., (2011) 3 SCC 238.

20. Mr. Sandhu, learned counsel for some of the petitioners,

submitted in rejoinder arguments that the state's stand based on

Regulation No.5(3) of the Regulations of 2014 is absolutely

misconceived. It was argued that but for state's NOC, the

petitioners' applications could not have been entertained much

less processed or granted recognition by the NCTE. Learned

counsel for the petitioners argued that in any case, the state

(14 of 21) [CW-2359/2021]

cannot sit over the decision of the NCTE, which has not only

processed the petitioners' applications but has also granted

recognition, obviously after considering the initial NOC granted by

the state.

21. Heard learned counsel for the parties.

22. In order to have a better grasp of the issue in hand, it will be

apt to reproduce the decision of the state government dated

20.07.2021, which runs as under:-

"fo'k; %& izkjfEHkd f"k{kk esa fMIyksek (D.El.Ed.) ikB~;Øe lapkyu gsrq futh f"k{kd izf"k{k.k laLFkkvksa ds LVkQ [email protected] ekU;[email protected] lhV vkoaVu gsrq vukifRr izek.k [email protected]"ka'kk ugha djus ds laca/k esaA mijksDr fo'k;kUrxZr ys[k gS fd izkjfEHkd f"k{kk eas fMIyksek (D.El.Ed.) ikB~;Øe lapkyu gsrq futh f"k{kd izf"k{k.k laLFkkvksa ds LVkQ [email protected] ekU;[email protected] lhV vkoaVu gsrq vukifRr izek.k [email protected]"ka'kk ugha fd, tkus dk jkT; ljdkj }kjk uhfrxr fu.kZ; fy;k x;k gSA mDr Øe esa ,rn~ }kjk lwfpr fd;k tkrk gS fd %& 1- l= 2020&21 ,oa i"pkr~orhZ l=ksa esa vkxkeh vkns"kksa rd nks o'khZ; izkjfEHkd f"k{kk esa fMIyksek (D.El.Ed.) ,oa "kkjhfjd f"k{kk esa fMIyksek (D.P.Ed.) gsrq jkT; esa lLFkkuksa dh i;kZIr miyC/krk gksus ds dkj.k bu ikB~;Øeksa gsrq futh f"k{kd izf"k{k.k laLFkkvksa dks uohu ekU;[email protected] vfHko`f) gsrq vukifRr izek.k i= (N.O.C.)/vfHk"ka'kk (Recommendation) ugha dh tkosxh rFkk iwoZ esa vkosfnr futh f"k{kd izf"k{k.k laLFkkvksa dks Hkh uohu ekU;[email protected] vfHko`f) gsrq vukifRr izek.k i= (N.O.C.)/vfHk"ka'kk (Recommendation) ugha dh tkosxhA

2- jk'Vªh; v/;kid f"k{kk ifj'kn~] ubZ fnYyh esa iwoZ ¼o'kZ 2008&09 ,oa blds i"pkr½ esa vkosfnr futh f"k{kd izf"k{k.k laLFkkvksa ds fy,] ftUgsa jkT; dh uhfr ds rgr uohu ekU;[email protected] vfHko`f) gsrq vukifRr izek.k i= (N.O.C.)/vfHk"ka'kk (Recommendation) ugha fd;s tkus dk fu.kZ; fy;k tkdj NCTE dks jkT; ljdkj dh le;≤ ij udkjkRed vfHk"ka'kk izsf'kr dh xbZ gSA NCTE }kjk bu laLFkkvksa dks LVkQ vuqeksnu gsrq Letter of Intent ,oa ekU;rk vkns"k (Recognition Order) tkjh fd, tk jgs gSa] mu futh f"k{kd izf"k{k.k laLFkkvksa ds laca/k esa jkT; ljdkj }kjk iwoZ esa dh xbZ udkjkRed fVIi.kh ds vuqlkj gh LVkQ [email protected] ekU;[email protected] vfHko`f) gsrq vukifRr izek.k i= (N.O.C.)/vfHk"ka'kk (Recommendation) ugha fd, tkus dk fu.kZ; fy;k x;k gSA rn~uq:i gh mDr leLr futh f"k{kd izf"k{k.k laLFkkvksa dks Mh-,y-,M- ikB~;Øe esa izos"k ds fy, laLFkk p;u gsrq vk;ksftr dh tkus okyh dkmUlfyax izfØ;k esa "kkfey ugha djus dk fu.kZ; fy;k x;k gSA"

23. In the present set of cases, the petitioners have challenged

the policy decision dated 20.07.2021, claiming it to be arbitrary

and ultra-vires the powers of the state government. While leaving

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the issue of validity of the policy decision open, this Court

proposes to decide these cases considering the aspect as to

whether the policy decision dated 20.07.2021 can be applicable to

the cases in hand.

24. In the opinion of this Court, the decision of the state

government deals with and speaks about grant of NOC which is

envisaged under Regulation No.5(3). Once an application has been

filed by an institution, with an 'NOC', the Regulations of 2014 do

not envisage any further 'NOC'. Therefore, the state's role is very

limited. After LoI has been issued in favour of an institution, the

state has to ensure that staff or faculty appointed by an institution

is as per the norms, because as per the Regulation No.7(13) of

the Regulations, the institution is required to submit a list of staff

duly approved by the affiliating body.

25. Indisputably, the decision has been taken by the state on

20.07.2021, whereas applications of all the institutions involving

present batch of cases, were not only filed prior thereto but even

the letters of intent have been issued by the NCTE and their

applications for recognition have reached the stage of grant of

staff approval under Regulation No.7(13) of the Regulations of

2014.

26. The state or university being the affiliating body cannot

refuse to conduct staff approval on account of the fact that there

are sufficient number of institutions/colleges operating in the

state, at least when an LoI has been issued to an institution.

27. Now, I proceed to examine as to whether the state has the

power to restrict number of institutions coming up in the state and

if yes, what is the stage. Learned AAG's stand that the state has

the power to restrict the number of institutions was mainly based

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on the judgment of Hon'ble the Supreme Court in the case of

National Council for Teacher Education & Ors. Vs. Shri Shyam

Shiksha Prashikshan Sansthan & Ors. (supra). But then, the

applicability of the judgment is required to be examined in light of

facts and statute involved therein.

28. Regulation 5(3) of the Regulations of 2014 reads thus:-

"(3) The application shall be submitted online electronically alongwith the processing fee and scan copies of required document 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."

29. Pari-materia provisions in earlier regime, being Regulations

5(e) and 5(f) of National Counsel for Teacher Education

(Application for Recognition, the Manner of Submission, the

Termination of Conditions for Recognition of Institutions and

Permission to Start New Course or Training) Regulations, 1995

read as under :-

"5(e) Every institution intending to offer a course or training in teacher education but was not functioning immediately before 17-08-1995, shall submit application for recognition with a no-objection certificate from State or Union Territory in which the institution is located.

5(f) Application for permission to start new course or training and/or to increase intake by recognised institutions under Regulation 4 above shall be submitted to the Regional Committee concerned with no-objection certificate from the State or Union Territory in which the institution is located."

30. It is thus, clear that neither the earlier Regulations nor the

Regulations of 2014 give such powers to the state.

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31. A perusal of para No.16 of the judgment of Hon'ble the

Supreme Court in case of St. Johns Teachers Training Institute

(supra), relied by learned AAG shows that Hon'ble the Supreme

Court has dealt with provisions of the erstwhile Regulations and

guidelines dated 02.02.1996 issued by the NCTE regarding grant

of NOC holding that the state government has power to restrict

mushroom growth of the institutions. In this regard, it would be

relevant to mention that the guidelines of NCTE dated 02.02.1996

in no ambiguous terms postulates that while granting the NOC,

the state would take into account the requirement of establishing

teacher training courses having regard to the number of the live

etc.

32. The guidelines dated 02.02.1996 issued by the NCTE (as

reproduced in para No.16 of the judgment aforesaid) reads thus :-

"1. The establishment of Teacher Training Institutions by Government, private managements or any other agencies should largely be determined by assessed need for trained teachers. This need should take into consideration the supply of trained teachers from existing institutions, the requirement of such teachers in relation to enrolment projections at various stages, the attirition rates among trained teachers due to superannuation, change of occupation, death etc. and the number of trained teachers on the live register of the employment exchanges seeking employment and the possibility of their deployment. The States having more than the required number of trained teachers may not encourage opening of new institutions for teacher education or to increase the intake.

2. States having shortage of trained teachers may encourage establishment of new institutions for teacher education and to increase intake capacity for various levels of teacher education institutions keeping in view the requirements of teachers estimated for the next 10-15 years.

3. Preference might be given to institutions which tend to emphasize the preparation of teachers for subjects (such as Science, Mathematics, English etc.) for which

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trained teachers have been in short supply in relation to requirement of schools.

4. Apart from the usual courses for teacher preparation, institutions which propose to concern themselves with new emerging specialities (e.g. computer education, use of electronic media, guidance and counselling etc.) should receive priority. Provisions for these should however, be made only after ensuring that requisite manpower, equipment and infrastructure are available. These considerations will also be kept in view by the institution intending to provide for optional subjects to be chosen by students such as guidance and counselling special education etc.

5. With a view to ensuring supply of qualified and trained teachers for such specialities education of the disabled non-formal education, education of adults, preschool education, vocational education etc. special efforts and incentives may be provided to motivate private managements/voluntary organisations for establishment of institutions, which lay emphasis on these areas.

6. With a view to promoting professional commitment among prospective teachers, institutions which can ensure adequate residential facilities for the Principal and staff of the institutions as well as hostel facilities for substantial proportion of its enrolment should be encouraged.

7. Considering that certain areas (tribal, hilly regions etc.) have found it difficult to attain qualified and trained teachers, it would be desirable to encourage establishment of trained institutions in those areas.

8. Institutions should be allowed to come into existence only if the sponsors are able to ensure that they have adequate material and manpower resources in terms, for instance, of qualified teachers and other staff, adequate buildings and other infrastructure (laboratory, library, etc.) a reserve fund and operating funds to meet the day to day requirement of the institution, including payment of salaries, provision of equipment etc. Laboratories, teaching science methodologies and practicals should have adequate gas plants, proper fittings and regular supply of water, electricity, etc. They should also have adequate arrangements. Capabilities of the institution for filling norms prepared by NCTE may be kept in view.

9. In the establishment of an institution preference need to be given to locations which have large catchment area in terms of schools of different levels where student teachers can be exposed to demonstration lessons and undertake practice teaching. A training institution which has a

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demonstration school where innovative and experimental approaches can be demonstrated could be given preference."

33. This Court has every reason to believe that such guidelines

dated 02.02.1996 issued by the NCTE or other similar guidelines

are in force.

34. If guidelines of 02.02.1996 or any pari-materia guidelines

regarding grant of NOC are holding field, the state can restrict the

number of private colleges/institutions if the circumstances so

warrant, of course in terms of the guidelines. However, such issue

is to be considered while issuing 'NOC' as required under

Regulation 5(3) of the Regulations of 2014.

35. In any case, once NOC to an institution has been issued, the

policy decision in question, which has been taken on 20.07.2021,

cannot be made applicable to the cases of the petitioners, whose

applications for recognition have reached at final or advanced

stage of issuance of LoIs by NCTE. The state's action based on

such policy decision is clearly illegal as it amounts to apply the

guidelines retrospectively.

36. The institutions, which have created the infrastructure for

establishing the colleges and more particularly the institutions in

whose favour LoIs have been issued by NCTE cannot be deprived

of their rights of running teacher education programme and admit

students, if they fulfill requisite eligibility criteria, of course once

recognition has been granted.

37. Jaipur Bench in its judgment dated 06.10.2021 in the case of

B.DM.L. Shikshan Sansthan Vs. State of Rajasthan (supra), after

dealing with practically all the judgments on the issue, has held

thus:-

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"9.20. Thus, from above, it is apparent that prior to the NCTE granting final recommendations, the State had a limited say to the extent of giving its opinion to the NCTE, otherwise, the role of the State Government is very formal one as held in State of Rajasthan Vs. L.B.S. B.Ed. College & Ors. (supra) and the State is not expected to obstruct commencement of the admission process once recommendation is granted and affiliation is found to be acceptable. However, it appears that the State authorities are not able to digest the verdict of the Supreme Court and are bent upon time and again initiating unnecessary and unwarranted litigation before this Court. The officers holding the helm of affairs of the State Government are expected to act with more caution and care. 9.21. In view thereof, the order impugned dated 04/12/2020 passed by the authorities based on the inspection conducted on the directions of the Principal Secretary, School Education dated 19/11/2020 is found to be illegal and the State could not have denied NOC/affiliation to the petitioners-institutions once they were duly recognized by the NCTE for running D.El.Ed. Course. The consequential action of not including the petitioners- institutions for counselling on the said basis and in treating the petitioners-institutions de- recognized is also held to be bad in law and in contravention with the provisions of the NCTE Act, 1993.

10. In view thereof, the orders impugned dated 04/12/2020 and 19/11/2020 passed by the respondents are quashed and set aside. The counselling process shall now be conducted by the respondents for the petitioners-institutions separately and the students be provided accordingly.

11. All these writ petitions are accordingly allowed. All pending applications stand disposed of. No costs."

38. Various judgments have been relied upon by rival parties

with regard to the powers of the state and consequential effect on

the policy decision dated 20.07.2021. Having gone through them

and in light of the discussion foregoing and considering that the

Coordinate Bench of this Court in somewhat identical factual and

legal backdrop, has allowed the writ petitions filed by the

institutions, holding that the state has no power to conduct

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inspection and to refuse grant of staff approval, this Court is

persuaded to allow these writ petitions.

39. The writ petitions, therefore, succeed.