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CASE NO.: Appeal (civil)  1859 of 2006

PETITIONER: STATE OF MAHARASHTRA

RESPONDENT: SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA & ORS

DATE OF JUDGMENT: 31/03/2006

BENCH: Y.K. SABHARWAL, C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT: JUDGMENT

ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.20918 OF 2005 WITH CIVIL APPEAL NOs.   1860   OF 2006 ARISING OUT OF SPECIAL LEAVE PETITION (C) NOs.20969-20977 OF 2005

C.K. THAKKER, J.

Leave granted.

The present appeals are directed against the judgment and  order passed by the High Court of judicature at Bombay, on  September 28, 2005 in Writ Petition Nos. 6172 of 2005,  4769 of 2005 and cognate matters.  Writ Petition No.4769  of 2005 was filed by Sant Dnyaneshwar Shikshan Shastra  Mahavidyalaya for an appropriate writ, direction or order,  quashing and setting aside the order dated December 28,  2004 passed by the State of Maharashtra by which the  petitioner was informed that the State of Maharashtra had  taken a policy decision not to grant ’No Objection  Certificate’ (’NOC’ for short) to any institution for starting  new B.Ed. college for the academic year 2005-06. It was  also decided to communicate the said policy decision to the  Maharashtra University stating that if necessity will arise in  the next year, applications for the institutions would be  considered at that time. A decision was also taken to bring  it to the notice of National Council for Teacher Education,  Bhopal (’NCTE’ for short) that in the State of Maharashtra,  there was no need for new B.Ed. trained manpower and  hence NCTE should not directly consider any application for  grant of permission to start B.Ed. college. In spite of the  aforesaid policy decision by the State of Maharashtra, NCTE  granted permission to the petitioner institute. The State  hence challenged the said action by filing Writ Petition No.  6172 of 2005 contending that the decision of NCTE ignoring  the policy decision of the State Government dated  December 28, 2004 was not in consonance with law and  was liable to be set aside.         Both the petitions were heard together by a Division  Bench of the High Court. By a common judgment, the High  Court allowed the petition filed by the institution, set aside  the order passed by the State Government on December  28, 2004  and issued direction to the State of Maharashtra  as well as Maharashtra University to take appropriate  consequential actions in accordance with law in the light of  the decision taken by NCTE in favour of the institution  permitting opening of a new B.Ed. college. Similar  directions were issued in favour of other colleges also.

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       To appreciate the contentions raised by the parties to  the proceedings, few relevant facts in Writ Petition No.  4769 of 2005 may now be stated.         The petitioner is a public trust registered under the  Bombay Public Trusts Act, 1950 as also society registered  under the Societies Registration Act, 1860. It was the case  of the petitioner that it was running a secondary school at  village Kondhapuri, Taluk Shirur, District Pune, having a  strength of about 150 students. The petitioner desired to  impart education for B.Ed. course. To meet with the  requirement of infrastructure, library, staff etc., it spent  more than rupees one crore. The petitioner then made an  application to SNDT Women’s University, Mumbai on  October 30, 2004 by paying the requisite affiliation fees. A  copy of the said application was forwarded to the Principal  Secretary, Higher and Technical Education, Mantralaya,  Mumbai. An application was also made by the petitioner to  NCTE, Western Region Office, Bhopal on December 31,  2003 in the prescribed format for grant of permission to  start B.Ed. college for women in accordance with the  provisions of the National Council for Teacher Education  Act, 1993 (hereinafter referred to as ’the Act’) and the  National Council for Teacher Education (Norms & Conditions  for recognition of Bachelor of Elementary Education)  Regulations, 1995 (hereinafter referred to as ’the  Regulations’). The petitioner also deposited the original  Fixed Deposit Receipt (FDR) of Rs.5 lacs towards  Endowment Fund.         According to the petitioner, the University processed  the application of the petitioner for affiliation and forwarded  it to the State Government. It was averred in the petition  that the application was recommended for the  establishment of the proposed B.Ed. college to be opened  by the petitioner. NCTE, vide its letter dated February 24,  2005 asked the petitioner whether it was ready for  inspection as per the norms prescribed by the NCTE. Since  the petitioner was ready for such inspection by the NCTE,  the Expert Committee of NCTE visited the petitioner’s  campus on June 6, 2005 and verified the adequacy of  infrastructure, staff and other norms. The report was  submitted by the Committee to NCTE which approved and  granted recognition for B.Ed. college to be opened by the  petitioner from academic year 2005-06 with an intake  capacity of 100 students. After receipt of the said letter, the  petitioner applied to the Government of Maharashtra on  July 4, 2005 for grant of permission to start the college  and/or inclusion of the name of the college in the Central  Admission Process for the year 2005-06. According to the  petitioner, the State Government neither acted on the said  letter nor even replied. Under the Maharashtra Universities  Act, 1994 (hereinafter referred to as ’the University Act’),  only after permission from the Government, B.Ed. college  can be opened. Since the admission process was to be  delayed and the petitioner had undertaken every exercise  by getting necessary permission from NCTE and had  invested huge amount of more than one crore on  development, infrastructure and appointment of staff etc.,  it was constrained to approach the High Court by filing a  petition for appropriate relief.         An affidavit was filed on behalf of SNDT Women’s  University stating therein that it did not recommend the  case of the petitioner to the State as in terms of the  Prospective Plan for 2002-07, the district-wise allocation for  Pune was only one college. It was, therefore, not possible  to recommend opening of a new B.Ed. college by the

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petitioner.         An affidavit was also filed by the State authorities,  asserting that the petitioner had to obtain NOC from the  State Government. According to the respondents 3 and 4,  the State Government had an important role to play in the  process of grant of permission by NCTE and such role has  been recognized by this Court in  St. John Teachers  Training Institute Vs. Regional Director, NCTE & Another,  [(2003) 3 SCC 321 : JT 2003 (2) SC 35] . It was stated  that the State Government had been assigned an important  task of development and improvement of teacher’s  education and thus it was vitally interested in education  and specially in professional courses in the State. It was  only the State Government which could correctly assess  and know the extent of requirement of trained manpower  and supply of trained teachers keeping in view the  requirements, change of occupation and demand of such  teachers. The input from the State Government through  NOC was thus vital for enabling NCTE to exercise its powers  and discharge its functions properly and without  involvement of the State Government and availability of  necessary input by the State Government, NCTE could not  grant permission. It was then stated that there were 216  B.Ed. colleges with an intake capacity of more than 20,000  students. Additionally, NCTE had sanctioned 40 new B.Ed.  colleges on the basis of NOC issued by the State  Government prior to 2005-06. The State Government had  issued NOC to nearly 80 new institutions upto 2004-05.  There was, thus, sufficient B.Ed. colleges and intake  capacity taking into account the need for teachers. A  conscious decision was, therefore, taken by the Cabinet  Sub-Committee on December 28, 2004 not to grant  approval or issue NOC for starting any new institution or to  increase intake capacity of existing institutions imparting  B.Ed. course for the year 2005-06. The said decision of the  Government was communicated to all the Universities on  February 4, 2005 and the Universities were directed to  communicate the decision of the Govenrment to institutions  concerned. In spite of the above decision, NCTE forwarded  the recommendation for grant of permission in favour of  certain institutions. But, as policy decision had been taken  by the State Government, the proposal of the petitioner  institution for grant of NOC was not forwarded to NCTE. The  State had also made a complaint in the affidavit that NCTE  had not clarified in what circumstances it has issued  permissions to the petitioner and other institutions without  NOC from the State Government.         An additional affidavit was also filed reiterating the  decision of the Cabinet Sub-Committee dated December  28, 2004.  It was stated that it was also decided to  withdraw/cancel NOC which had been issued by the State  Government in favour of some institutions. Those  institutions, therefore, filed writ petitions and the Division  Bench set aside the decision of the State Government by  granting liberty to the State to take appropriate action in  accordance with law after giving an opportunity of hearing  to the petitioners. The State Government, thereafter,  afforded hearing to the institutions, but again it was  decided to withdraw/cancel NOC in view of the policy  decision of the Government. It was, therefore, prayed by  the respondent State that its decision was a policy decision  which was in consonance with law and the petition was  liable to be dismissed.         By filing Writ Petition No. 6172 of 2005, the State had  challenged the action of NCTE of granting permission to

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open new B.Ed. college ignoring the policy decision of the  State dated December 28, 2004, praying that the action of  NCTE was illegal and unlawful and was liable to be set  aside.         The NCTE also filed a counter before the High Court.  Relying on various provisions of the Act, NCTE stated that  necessary sanction had been granted by NCTE and the said  decision was legal, valid and in consonance with law. It was  stated that since the final authority for granting such  permission was only NCTE under the Act, SNDT University  as well as the State Government ought to have respected  the order passed by the NCTE by taking consequential  actions.  It was stated that the State Government never  informed NCTE about its general policy not to issue any  NOC to new B.Ed. institution for academic year 2005-06 in  view of output of existing B.Ed. colleges. It was further  stated that NCTE considered the question but decided not  to accept the decision of the State Government for the  reason that the State while taking such decision, did not  consider the education policy of the Government of India  under Sarv Shiksha Abhiyan which required opening of  large number of primary schools and thereafter secondary  schools. It also did not take into account preferential needs  of hilly and remote areas, requirement of teachers for  Science, Mathematics and English, need of non-formal  education of adults, disabled, tribals etc. and did not  consider the need of trained teachers who do not seek  employment in other institutions but wish to use the  training in self employment such as opening of coaching  classes, etc.         In an additional affidavit, NCTE stated that in the 73rd  meeting, the agenda included consideration of letter of the  State of Maharashtra dated May 7, 2005 in which it was  stated that Government had decided not to issue any NOC  for starting new B.Ed. college for the academic year 2005- 06. The meeting was held between June 3 & 5, 2005 which  was attended by the State representative but as the  agenda could not be completed, the meeting continued on  June 16 and 17 when State representative was not present.  After considering the policy and views of the Government,  the Committee decided that the decision of the State  Government was not binding upon NCTE and accordingly  NCTE had decided to grant permission to open 16 new  B.Ed. colleges.         The High Court, therefore, was called upon to consider  the role played by the State Government in the process of  consideration of application by the institutions seeking  recommendation of opening B.Ed. colleges by NCTE in the  light of the provisions of the Act in juxtaposition to the  extent of trained manpower required by the State and to  take policy decision on the basis of output of teachers by  such colleges. The Court was also called upon to consider  whether in the absence of any material being made  available by the State Government to NCTE whether the  latter can process the application and take a decision  contrary to the decision of the State Government. A  question had also arisen as to whether the State  Government can refuse permission to an institution which  had been granted permission to start B.Ed. college by NCTE  under the Act and whether policy decision of the State  Government not to grant NOC would bind NCTE in the light  of the provisions of the Act.         The High Court considered the material provisions of  the Act and the Regulations and the relevant decisions of  this Court, particularly in State of Tamilnadu & Anr. Vs.

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Adhiyaman Educational & Research Institute & Ors.,  [(1995) 4 SCC 104 : JT 1995 (3) SC 136], Jaya Gokul  Educational Trust Vs. Commissioner & Secretary, Higher  Education Department, Thiruvananthapuram, Kerala State  & Anr. [(2000) 5 SCC 231 : JT 2000 (5) SC 118] and St.  John’s Teacher’s Training Institute, referred to above.         The High Court held that in the light of the relevant  provisions of the Act as interpreted by this Court in various  decisions, the appropriate authority to take decision  regarding opening of new colleges was NCTE and neither  the State Government nor the University can act contrary  to the decision of NCTE. According to the High Court, under  the Act, the only authority which could take a decision  regarding opening of new B.Ed. college or increase in intake  capacity was NCTE and such decision cannot be ignored  either by the State authorities or by the University. So far  as the function of the State Government was concerned,  the High Court observed that it was in the nature of supply  of necessary data and materials so as to enable NCTE to  undertake the process of coming to an appropriate decision  but the State had no power to decide that it had taken a  policy decision not to grant permission to open new B.Ed.  college for a particular period. Such decision was not in  accordance with the provisions of the Act nor in consonance  with law laid down by this Court. Regarding role of the  University, the High Court held that it was incumbent on  the University to take an appropriate decision and  consequential action on the basis of decision of NCTE and  the provisions of the University Act required the University  to implement such decision. It was, therefore, not open to  the University to take any action overlooking the decision of  NCTE and relying on a decision of the State Government. In  the light of the above findings the High Court allowed the  petition filed by the institutions and dismissed the writ  petition of the State Government.          The High Court, in the operative part, observed as  under: "For the reasons stated in the judgment, we  direct the Director of Higher Education,  Government of Maharashtra to forthwith include  the name of the petitioner institute in the list of  Central Admission process for the year 2005- 2006 B.Ed. Course consequent to the petitioner  being allowed to start B.Ed. college. The  University considering Section 14(6) of the  National Council for Teaching Education Act,  1993 to grant first time affiliation to the  petitioner college to enable the College to admit  students. That affiliation would be subject to the  petitioner college fulfilling the requirements as  required by the University to grant first time  affiliation in terms of the Unvieristy Act, Rules  and Statute to the extent that has to be  complied with. It is made clear that those who  have been admitted pursuant to the Central  Admission Process are not eligible to apply  against the seats now available and admissions  already done will not be interfered with and the  new seats will be filled in from amongst the  candidates still on the merit list, by conducting  a special round of admission.         Rule made absolute to that extent in Writ  Petition No. 4769 of 2005.         Rule discharged in Writ Petition No. 6172  of 2005 subject to what we have set out in the

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body of the judgment."

As already stated, NOC had been granted earlier in  favour of other colleges by the State Government on the  basis of permission granted by NCTE.  But it was  subsequently withdrawn/cancelled in the light of the policy  decision dated December 28, 2004 not to permit any new  B.Ed. College to be opened.  Those colleges filed petitions  which also came to be allowed by the High Court. The State has now approached this Court by filing the  present appeals. The matters were placed for admission- hearing before this Court and on October 5, 2005 notice  was issued. Stay was also granted against the judgment of  the High Court as also the recommendation order passed  by NCTE, Bhopal. In the order dated January 6, 2006 it  was observed by this Court that the matters require  elaborate submissions. The Registry was, therefore,  directed to list them on ’a non-miscellaneous day’ in the  last week of January, 2006. That is how the matters had  been placed before us.  We have heard the learned counsel for the parties. Mr. T.R. Andhyarujina, Senior Advocate, appearing  for the State contended that the policy decision taken by  the State Government was in consonance with law and  could not have been ignored by NCTE.  It was also  submitted that it was within the power and authority of the  State to take into account relevant and germane  considerations that as against the demand of about 7,500  teachers per year, at present more than 25,000 teachers  are available.  The resultant effect is that every year there  is excess of teachers to the extent of 18,000.  There are  more than 250 B.Ed. colleges in the State and if more  colleges will be allowed to be opened, there will be  unemployment of many more teachers.  The said aspect  was seriously considered by the Cabinet Sub Committee  and a conscious decision was taken on the basis of demand  of teachers in future and it was resolved that for the year  2005-06, no NOC would be granted to open new B.Ed.  colleges.  Such a decision, submitted Mr. Andhyarujina, by  no means can be described as arbitrary, irrational or  otherwise unreasonable.  It was also submitted that the  Regulations framed and Guidelines issued by NCTE under  the Act empowered the State Government to consider  certain matters.  The legality thereof came to be  challenged before this Court in St. John Teachers Training  Institute and they were held valid.  When in exercise of the  power conferred by NCTE on the State Government, an  action was taken and decision has been arrived at, it is  neither open to NCTE nor to a college to question the  legality thereof, particularly when the State has taken into  consideration planned and combined development of  teacher education in the State.  It was also urged that the  State kept in mind Prospective Plan for the period 2003-07  and was of the opinion that there should not be imbalance  or excess of teachers so as to increase unemployment and  unrest.  According to Mr. Andhyarujina, the High Court  ought to have considered the provisions of the University  Act and in particular Sections 82 and 83 thereof in their  proper perspective.  It is only when the State grants NOC  and NCTE permits new B.Ed. college to be opened or allows  increase in intake capacity that the above sections will  apply and the university will act in accordance with the  decision of the State and NCTE.  In the absence of grant of  NOC, a college cannot insist on implementation of  provisions of Sections 82 and 83 of the University Act

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merely on the basis that NCTE had granted permission  under the Act.  It was finally submitted that even if this  Court is of the view that all the submissions made by the  State are ill-founded and the decision of the High Court  does not deserve interference, no permission may be  granted to the colleges at least for the year 2005-06 since  minimum requirement is presence of 180 days which would  be impossible to comply with since B.Ed. Examination is  scheduled to be held in March-April, 2006.  It was stated  that the course is of one year only after graduation and as  such there is no supplementary / additional examination for  B.Ed. Mr. Raju Ramachandran, learned counsel for NCTE  supported the order passed by the High Court.  He  submitted that NCTE is the final authority and has primary  voice in establishing technical educational institutions.   According to him, the Act has been enacted by Parliament  in exercise of power under Entry 66 of List I of Schedule  VII to the Constitution and the State has no power in such  matters.  He also submitted that the point is finally  concluded by this Court in several cases referred to above.   The High Court considered the respective contentions of  the parties in the light of the law laid down by this Court  and held that it is only NCTE which has final voice and once  a decision is taken by that body, neither the State Act nor  any authority of State can interfere with such decision.   The counsel also submitted that like the State, University  has also no power, authority or jurisdiction to ignore the  decision taken by NCTE or refuse to take action in  pursuance of permission granted by NCTE.  Sub-section (6)  of Section 14 of the Act expressly requires university to act  in accordance with the decision of NCTE and State  Government cannot direct the university nor university can  overlook the statutory scheme.  It was also submitted that  the policy decision of the State Government dated 28th  December, 2004 was not legal and valid.  Several aspects  and relevant considerations were not kept in mind while  taking the said decision.  In the circumstances, NCTE was  constrained to take an action in consonance with law.  The  matter was discussed in various meetings of NCTE.  In the  final meeting, the representative of the State was not  present.  A decision was taken by NCTE to grant permission  to new B.Ed. colleges which was legal and valid.  Regarding  Regulations and Guidelines framed by NCTE and the role to  be played by the State Government in such cases, it was  submitted that it is merely in the nature of supply of  necessary data/materials and is ’consultative’ in character.   As it may be difficult for NCTE to get necessary information  before power is exercised by NCTE one way or the other,  the State is requested to furnish requisite details.  That,  however, does not mean that the State can refuse NOC  after a decision has been taken by NCTE.  Once the State is  consulted and it supplied and made available necessary  particulars to NCTE as required by it, the function of the  State comes to an end.  Thereafter it is only for NCTE to  take an appropriate decision in accordance with law.  If  such decision is otherwise objectionable, the party  aggrieved may challenge the same but so far as State is  concerned, its role is over as soon as the consultation is  over.  Mr. Raju, therefore, submitted that the High Court  was wholly justified in allowing the petition filed by colleges  and in dismissing the writ petition of the State. The learned counsel for various colleges supported  Mr. Raju Ramachandran on interpretation and application  of the provisions of the Act and final decision of the High

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Court.  They, however, had taken other contentions as  well.  According to them, the State has no locus standi to  challenge the decision of NCTE.  The State cannot be said  to be "person aggrieved" or "aggrieved party" so as to  challenge the decision of NCTE.  If the decision is against  the college, it is only the college which has ’standing’ to  impugn the said decision.  The High Court, therefore, in the  submission of the learned counsel for colleges, ought to  have dismissed the petition filed by the State as not  maintainable without entering into the merits of the  matter.  It was also submitted that under the scheme of  the Constitution, particularly Articles 245, 246, 248 and  254 read with Schedule VII thereof, only Parliament has  power of co-ordination and determination of standards in  institutions for higher education or research, scientific and  technical institutions.  State Legislatures have no authority  to enact any law in the field covered by Entry 66 of List I of  Schedule VII.  Obviously, therefore, State Government has  no authority to take a policy decision in respect of the  subjects covered by Entry 66 of List I of Schedule VII for  which a specific enactment has been made by Parliament  and under the said Act authority has been granted to NCTE  to take an action.  As to Regulations and Guidelines, it was  submitted that under the Act power has been conferred on  NCTE.  It is, therefore, only NCTE, which can consider the  question and take appropriate decision under the Act and it  is not open to NCTE to make Regulations or frame  Guidelines empowering the State Government to undertake  such exercise.  According to the counsel, therefore, even if  Regulations are framed or Guidelines made, they are not in  consonance with the Act and there is abdication of power  by NCTE in favour of State Government which is hit by the  doctrine of impermissible and excessive delegation.   Regulations permitting such excessive / impermissible  delegation must be declared inconsistent with the parent  Act as also ultra vires and unconstitutional.  The counsel  also submitted that so-called policy decision of the State  Government is arbitrary and unreasonable and would be hit  by Clause (g) of Article 19(1) of the Constitution which  allows all citizens to have the right to practise any  profession, or to carry on any occupation, trade or  business, otherwise legal and lawful.  Article 19(6) cannot  be invoked by the State as total prohibition to open B.Ed.  college can never be said to be in the interest of general  public and would not fall within "reasonable restriction"  permissible under the said provision.  It is also violative of  Article 21A as inserted by the Constitution (Eighty-sixth  Amendment) Act, 2002.  Over and above constitutional  inhibitions, the order dated 28th December, 2004 is  arbitrary and unreasonable inasmuch as considerations  which weighed with the State Government relating to  employment of B.Ed. teachers were totally irrelevant and  extraneous.  Taking education and getting employment are  two different things. The colleges are not claiming any  grant or financial aid from the State, nor do they give any  assurance or guarantee to students admitted to B.Ed.  colleges that the State will give them employment.  It is,  therefore, not open to the State Government to refuse to  grant NOC because the State is not able to give  employment to teachers after they get B.Ed. degree.   There are several Arts, Commerce and Science colleges in  the State in which students take education and get degrees  of B.A., B.Com. or B.Sc.  It is not even the case of the  State that all those students got employment at one or the  other place.  Thus, the so-called policy decision of the State

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Government not to grant NOC to B.Ed. colleges is totally  irrational.  It was also submitted by the respondents that  they had made huge investments and if at this stage they  will be refused permission, irreparable injury and loss  would be caused to them. Finally, it was submitted that  since the decision of NCTE is legal, lawful and in  consonance with the provisions of the Act as also  consistent with the law laid down by this Court in several  judgments, the order passed by the High Court deserves to  be upheld by allowing the institutions to open B.Ed.  colleges from the year 2005-06 as has been done by NCTE.   If this Court considers it appropriate, specific direction may  be issued to the respondents to conduct extra  classes/lectures and to hold supplementary/additional  examination.  Once the action of NCTE is found to be lawful  and the decision of the State Government bad, no  prejudice should be caused to the institutions.  Before we deal with the contentions of the parties, it  would be appropriate if we refer to the relevant provisions  of law.  Part XI of the Constitution deals with relations  between Union and States.  Chapter I thereof relates to  legislative relations and distribution of legislative powers.   Article 245 enables Parliament to make laws for the whole  or any part of territory of India.  Similarly, a Legislature of  a State has power to make laws for the whole or any part  of the State.  Article 246 provides for distribution of  legislative power between Parliament and Legislatures of  States and reads thus: "246. Subject-matter of laws by Parliament  and by the Legislatures of States-(1)  Notwithstanding anything in clauses (2) and  (3), Parliament has exclusive power to make  laws with respect to any of the matters  enumerated in List I in the Seventh Schedule  (in this Constitution referred to as the "Union  List"). (2) Notwithstanding anything in clause (3),  Parliament and, subject to clause (1), the  Legislature of any State also, have power to  make laws with respect to any of the matters  enumerated in List III in the Seventh Schedule  (in this Constitution referred to as the  "Concurrent List"). (3) Subject to clauses (1) and (2), the  Legislature of any State has exclusive power to  make laws for such State or any part thereof  with respect to any of the mattes enumerated  in List II in the Seventh Schedule (in this  Constitution referred to as the ’State List’). (4) Parliament has power to make laws with  respect to any matter for any part of the  territory of India not included [in a State]  notwithstanding that such matter is a matter  enumerated in the State List."

Whereas Article 248 provides for residuary power of  Legislature, Article 254 covers cases of inconsistency  between laws made by Parliament and by Legislatures of  States. Schedule VII to the Constitution comprises of three  Lists: (i) Union List, (ii) State List and (iii) Concurrent List.   While exclusive power to enact laws lies with Parliament  under List I, the power to enact laws under List II is with  the State Legislatures.  In respect of subjects falling under  List III, it is open to Parliament as well as State

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Legislatures to enact laws subject to the provisions of  Articles 254.  Entries 63 to 66 of List I of Schedule VII relate to  higher education.  Entry 66 which is relevant reads thus: "66. Co-ordination with determination of  standards in institutions for higher education or  research and scientific and technical intuitions"

Entry 11 of List II inter alia included university  education.  It was omitted by the Constitution (42nd  Amendment) Act, 1976 and became part of Entry 25 of List  III (Concurrent List).  Entry 25, as originally stood read as  under: "25. The vocational and technical training of labour." After the amendment of 1976, the Entry as it stands  now reads thus:  "25. Education, including technical education  medical education and universities, subject to  the provisions of entries 63, 64, 65 and 66 of  List I; vocational and technical training of  labour."

The National Council for Teacher Training Act, 1993  has been enacted by Parliament and deals with teacher’s  education.  It came into force with effect from July 1, 1995.   The Preamble of the Act is relevant and reads thus: "An Act to provide for the establishment of a  National Council for Teacher Education with a  view to achieving planned and co-ordinated  development of the teacher education system  throughout the country, the regulation and  proper maintenance of norms and standards in  the teacher education system and for matters  connected therewith."

Section 2 is definition clause wherein various terms  have been defined.  "Council" is defined as the National  Council for Teacher’s Education established under sub- section (1) of Section 3 of the Act.  "Institution" has been  defined as "an institution which offers courses for training  in teacher’s education".  "Teacher education" is defined  thus: "Teacher education means programmes of  education, research or training of persons for  equipping them to teach at pre-primary,  primary, secondary and senior secondary stages  in schools, and includes non-formal education,  part-time education, adult education and  correspondence education."

Under that section, "University" means "University  defined under clause (f) of Section 2 of the University  Grants Commission Act, 1956 and includes an institution  deemed to be a University under Section 3 of that Act."   Chapter II provides for establishment of Council and  Chapter III deals with functions to be performed by the  Council.  Section 12 imposes duty on the Council to take  necessary steps for ensuring planned and co-ordinated  development of teacher education and for determination  and maintenance of standards for teacher education.  The  said section is relevant and may be quoted in extenso: "12. It shall be the duty of the Council to take  all such steps as it may think fit for ensuring  planned and co-ordinated development of  teacher education and for the determination

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and maintenance of standards for teacher  education and for the purposes of performing its  functions under this Act, the Council may-

(a) undertake surveys and studies  relating to various aspects of teacher  education and publish the result  thereof; (b) make recommendations to the  Central and State Governments,  Universities, University Grants  Commission and recognized institutions  in the matter of preparation of suitable  plans and programmes in the field of  teacher education;

(c) co-ordinate and monitor teacher  education and its development in the  country;

(d) lay down guidelines in respect of  minimum qualifications for a person to  be employed as a teacher in schools or  in recognised institutions;

(e) lay down norms for any specified  category of courses or trainings in  teacher education, including the  minimum eligibility criteria for  admission thereof, and the method of  selection of candidates, duration of the  course, course contents and mode of  curriculum;

(f) lay down guidelines for compliance  by recognised institutions, for starting  new courses or training, and for  providing physical and instructional  facilities, staffing pattern and staff  qualifications;

(g) lay down standards in respect of  examinations leading to teacher  education qualifications, criteria for  admission to such examinations and  schemes of courses or training;  

(h) lay down guidelines regarding  tuition fees and other fees chargeable  by recognised institutions;  

(i) promote and conduct innovation and  research in various areas of teacher  education and disseminate the results  thereof;  

(j) examine and review periodically the  implementation of the norms,  guidelines and standards laid down by  the Council, and to suitably advise the  recognised institutions;

(k) evolve suitable performance  appraisal systems, norms and  mechanisms for enforcing

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accountability on recognized  institutions;

(l) formulate schemes for various levels  of teacher education and identify  recognized institutions and set up new  institutions for teacher development  programmes;

(m) take all necessary steps to prevent  commercialization of teacher  education; and

(n) perform such other functions as  may be entrusted to it by the Central  Government."

Chapter IV is material and provides for "Recognition  of teacher education institutions."  While Section 14 deals  with recognition of intuitions offering course or training in  teacher education, Section 15 relates to permission of new  courses or training by a recognized institution and they  read thus: "14 (1) Every institution offering or intending to  offer a course or training in teacher education on  or after the appointed day may, for grant of  recognition under this Act, make an application to  the Regional Committee concerned in such form  and in such manner as may be determined by  regulations; Provided that an institution offering a course or  training in teacher education immediately before  the appointed day, shall be entitled to continue  such course or training for a period of six months,  if it has made an application for recognition within  the said period and until the disposal of the  application by the Regional Committee. (2) The fee to be paid along with the application  under sub-section (1) shall be such as may be  prescribed. (3) On receipt of an application by the Regional  Committee from any institution under sub-section  (1), and after obtaining from the institution  concerned such other particulars as it may  consider necessary, it shall,-- (a) if it is satisfied that such institution  has adequate financial resources,  accommodation, library, qualified staff,  laboratory and that it fulfils such other  conditions required for proper functioning  of the institution for a course or training  in teacher education, as may be  determined by regulations, pass an order  granting recognition to such institution,  subject to such conditions as may be  determined by regulations; or (b) if it is of the opinion that such  institution does not fulfil the  requirements laid down in sub-clause (a),  pass an order refusing recognition to  such institution for reasons to be  recorded in writing; Provided that before passing an order  under sub-clause (b), the Regional  Committee shall provide a reasonable

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opportunity to the concerned institution  for making a written representation. (4) Every order granting or refusing recognition to  an institution for a course or training in teacher  education under sub-section (3) shall be published  in the Official Gazette and communicated in  writing for appropriate action to such institution  and to the concerned examining body, the local  authority or the State Government and the  Central Government. (5) Every institution, in respect of which  recognition has been refused shall discontinue the  course or training in teacher education from the  end of the academic session next following the  date of receipt of the order refusing recognition  passed under clause (b) of sub-section (3). (6) Every examining body shall, on receipt of the  order under sub-section (4),-- (a) grant affiliation to the institution,  where recognition has been granted; or (b) cancel the affiliation of the  institution, where recognition has been  refused. 15 (1) Where any recognised institution intends to  start any new course or training in teacher  education, it may make an application to seek  permission therefor to the Regional Committee  concerned in such form and in such manner as may  be determined by regulations. (2) The fees to be paid along with the application  under sub-section (1) shall be such as may be  prescribed. (3) On receipt of an application from an institution  under sub-section (1), and after obtaining from the  recognised institution such other particulars as may  be considered necessary, the Regional Committee  shall,-- (a) if it is satisfied that such recognised  institution has adequate financial  resources, accommodation, library,  qualified staff, laboratory and that it  fulfils such other conditions required for  proper conduct of the new course or  training in teacher education, as may  be determined by regulations, pass an  order granting permission, subject to  such conditions as may be determined  by regulation; or (b) if it is of the opinion that such  institution does not fulfil the  requirements laid down in sub-clause  (a), pass an order refusing permission  to such institution, for reasons to be  recorded in writing; Provided that before passing an order  refusing permission under sub-clause  (b), the Regional Committee shall  provide a reasonable opportunity to the  institution concerned for making a  written representation. (4) Every order granting or refusing permission to  a recognised institution for a new course or  training in teacher education under sub-section  (3), shall be published in the Official Gazette and  communicated in writing for appropriate action to

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such recognised institution and to the concerned  examining body, the local authority the State  Government and the Central Government". Section 16 opens with a non-obstante clause and  requires an affiliating body to grant affiliation only after  recognition or permission by the Council.  Contravention of  the provisions of the Act and consequences thereof have  been specified in Section 17.  Appellate provision is found  in Section 18.

Section 31 of the Act enables the Central Government  to make Rules to carry out the purposes of the Act.   Likewise, Section 32(1) empowers the Council to make  Regulations not inconsistent with the provisions of the Act  and the Rules made thereunder for the purpose of carrying  out of the provisions of the Act.  Sub-section (2) of Section  32 expressly states that in particular and without prejudice  to the generality of power to make Regulations, such  Regulations may provide for the matters enumerated in  clauses (a) to (p).  Clauses (d), (e), (f) and (g) are  relevant and read thus:  "(d) the norms, guidelines and standards in  respect of-

(i) the minimum qualifications or a  person to be employed as a teacher  under clause (d) of Section 12;

(ii) the specified category of courses or  training in teacher education under  clause (e) of section 12;

(iii) starting of new courses or training  in recognized institutions under clause  (f) of section 12;

(iv) standards in respect of  examinations leading to teacher  education qualifications referred to in  clause (g) of section 12;

(v) the tuition fees and other fees  chargeable by institutions under clause  (h) of section 12;

(vi) the schemes for various levels of  teacher education, and identification of  institutions for offering teacher  development programmes under clause  (1) of section 12;

"(e) the form and the manner in which an  application for recognition is to be submitted  under sub-section (1) of Section 14;

(f) Conditions required for the proper  functioning of the institution and conditions for  granting recognition under clause (a) of sub- section (3) of Section 14;

(g) the form and the manner in which an  application for permission is to be made under  sub-section (1) of Section 15"

In exercise of the power conferred by Section 32 of

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the Act, the Council framed Regulations known as the  National Council for Teacher Education (Form of application  for recognition, the time-limit of submission of application,  determination of norms and standards for recognition of  teacher education programmes and permission to start new  course or training) Regulations, 1995.  Regulation 5 deals  with the manner of making application and Regulation 8  relates to conditions for recognition.  Clauses (e), (f) and  (g) of Regulation 5 read as under: "5. (e) Every institution intending to offer a  course or training in teacher education but was  not functioning immediately before 17.8.1995,  shall submit application for recognition with a  no-objection certificate from the State or Union  Territory in which the institution is located.

(f) Application for permission to start new  course or training and/or to increase intake by  recognized 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.

The State Government shall make available to  the concerned Regional Committee of NCTE its  views/recommendations which will be  considered by the Regional Committee while  taking a decision on the application for  recognition."

Regulation 8 imposes conditions for recognition and  reads thus: "8. Condition for recognition- (a) Regional  Committee shall satisfy itself on the basis of  scrutiny and verification of facts as contained in  the application for recognition and/or recognition  of the institution where considered necessary or  any other manner deemed fit, that the  institutions have adequate financial resources,  accommodation, library, qualified staff,  laboratory and such other conditions required for  the proper functioning of the institutions for the  course of training in teacher education which are  being offered or intending to offer.

(b) Regional Committee shall ensure that every  institution applying for recognition fulfils the  conditions given in Appendix III."

It appears that NCTE had framed Guidelines for the  State Government / Union Territory by a notification, dated  February 2, 1996 for issuance of NOC.  The relevant  Guidelines read 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 attrition rates among trained  teachers due to superannuation, change of

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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 10-15years.    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 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 such as  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 organizations 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 hostal 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

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teachers and other staff, adequate buildings and  other infrastructure (laboratory, library etc.), a  reverse fund and operating funds to meet the  day-to-day requirements of the institutions,  including payment of salaries, provision of  equipment etc.  Laboratories, teaching science  methodologies and practicals should have  adequate gasplants, proper fittings and regular  supply of water, electricity etc.  They should also  have adequate arrangements.  Capabilities of the  institution for filing norms prepared by NCTE may  be kept in view.

9. In the establishment of an institution  preference needs to be given to locations which  have a 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 demonstration school where innovative and  experimental approaches can be demonstrated  could be given preference."

In St. John Teachers Training Institute, the validity of  the Regulations, particularly clauses (e) & (f) of Regulation  5 came to be challenged.  It was contended that the  provision for submitting an application for recognition with  NOC issued by the State Government or Union Territory in  which the institution was situated was invalid and ultra  vires.  It was argued that Section 14 of the Act mandates  NCTE to grant recognition if it is satisfied that the  institution making an application for the grant of  recognition has fulfilled the necessary requirements laid  down in the said section.  Clauses (e) and (f) of Regulation  5, however, insisted the institution to obtain NOC from the  State Government/Union Territory which was wholly  outside the provisions of the Act.  State Government/Union  Territory was totally alien so far as the recognition was  concerned and by insisting NOC from State Government /  Union Territory, NCTE has created a parallel body unknown  to the law and hence, clauses (e) and (f) of Regulation 5  were liable to be struck down declaring them to be ultra  vires.  NCTE filed a counter-affidavit and supported the  Government contending that its action of taking assistance  from the State Government / Union Territory could not be  held illegal or ultra vires.  It was conceded that sub-section  (3) of Section 14 imposed duty upon Regional Committees  of NCTE to be satisfied about fulfillment of necessary  conditions and grant of recognition of an institution which  had made an application.  The said provision, however,  required the institution to have adequate financial  resources, accommodation, library, qualified staff,  laboratory, etc. for proper functioning of the institution for  a course or training in teacher education.  It was then  stated that there were only four Regional Committees in  the whole country and hence each Regional Committee had  to deal with application for grant of recognition from more  than one State.  It was, therefore, not only difficult but  almost impossible for the Regional Committee to obtain  complete particulars and full details of financial resources,  accommodation, library etc. of the institutions applying for  recognition.  Again, the institution might have been located  in the interior part of a district or at a remote place of the  State.  It was, thus, a Herculean task for the Regional

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Committee to perform and to undertake the exercise and it  was necessary to depend upon some other agency or body  for such information.  It was thought that the State  Government / Union Territory in which the institution was  situated would be in a better position to supply such  information so as to enable the regional committee to  effectively exercise powers in consonance with law.  It was,  therefore, made incumbent upon the institution to apply for  NOC from the State Government / Union Territory  concerned.  The Regulations thus facilitated the job of the  Regional Committee in discharging their statutory duties  and responsibilities. It was contended by the petitioners before this Court  that there were no guidelines for the State Government /  Union Territory for grant of NOC and it was open to such  authority to grant or refuse NOC on wholly irrelevant  considerations.  The Court, however, referred to the  affidavit filed by the State and perused the relevant  Guidelines which ought to be considered for the grant of  NOC and held that the State Government / Union Territory  would confine to matters enumerated in those Guidelines.   The Court observed: "A perusal of the guidelines would show that  while considering an application for grant of an  NOC the State Government or the Union  Territory has to confine itself to the matters  enumerate therein like assessed need for  trained teachers, preference to such institutions  which lay emphasis on preparation of teachers  for subjects like Science, Mathematics, English  etc. for which trained teachers are in short  supply and institutions which propose to  concern themselves with new and emerging  specialties like computer education, use of  electronic media etc. and also for specialty  education for the disabled and vocational  education etc.  It also lays emphasis on  establishment of institutions in tribal and hilly  regions which find it difficult to get qualified and  trained teachers and locations which have  catchment area in terms of schools of different  levels where student teachers can be exposed  to demonstration lessons and can undertake  practice teaching.  Para 8 of the guidelines  deals with financial resources, accommodation,  library and other infrastructure of the institution  which is desirous of starting a course of training  and teacher education.  The guidelines clearly  pertain to the matters enumerated in sub- section (3) of Section 14 of the Act which have  to be taken into consideration by the Regional  Committee while considering the application for  granting recognition to an institution which  wants to start a course for training in teacher  education.  The guidelines have also direct  nexus to the object of the Act, namely planned  and coordinated development to teacher  education system and proper maintenance of  norms and standards.  It cannot, therefore, be  urged that the power conferred on the State  Government or Union Territory, while  considering an application for grant of an NOC,  is an arbitrary or unchannelled power.  The  State Government or the Union Territory has to  necessarily confine itself to the guidelines

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issued by the Council while considering the  application for grant of an NOC. In case the  State Government does not take into  consideration the relevant factors enumerated  in sub-section (3) of Section 14 of the Act and  the guidelines issued by the Council or takes  into consideration factors which are not relevant  and rejects the application for grant of an NOC,  it will be open to the institution concerned to  challenge the same in accordance with law.   But, that by itself, cannot be a ground to hold  that the Regulations which require an NOC from  the State Government or the Union Territory  are ultra vires or invalid."

Though it was urged that blanket power had been  conferred on NCTE and there was abdication of essential  function by NCTE in favour of State Government / Union  Territory, the contention was negatived observing that the  function performed by the State Government / Union  Territory was more in the nature of collection of data and  material.  Referring to Regulation 6 as amended in 2002,  the Court negatived the contentions and observed: "Regulation 6(ii) of these Regulations provides  that the endorsement of the State  Government/Union Territory Administration in  regard to issue of NOC will be considered by the  Regional Committee while taking a decision on  the application for recognition. This provision  shows that even if the NOC is not granted by  the concerned State Government or Union  Territory and the same is refused, the entire  matter will be examined by the Regional  Committee while taking a decision on the  application for recognition. Therefore, the grant  or refusal of a NOC by the State Government or  Union Territory is not conclusive or binding and  the views expressed by the State Government  will be considered by the Regional Committee  while taking the decision on the application for  grant of recognition. In view of these new  Regulations the challenge raised to the validity  of Regulations 5(e) and (f) has been further  whittled down. The role of the State  Government is certainly important for supplying  the requisite data which is essential for  formation of opinion by the Regional Committee  while taking a decision under Sub-section (3) of  Section 14 of the Act. Therefore no exception  can be taken to such a course of action." The Court, however, held that the State Government  must exercise power within "reasonable time".  It was  indicated that if the State Government would not take a  decision within that period, it would defeat the right of the  institution to have its application considered by the regional  committee of NCTE.  It was, therefore, proper for the  Council to frame appropriate Regulation for fixing time limit  within which a decision should be taken by the State  Government on the application made by the institution for  grant of NOC.  In absence of such regulation and fixing of  time limit, the Court held that such decision should be  taken by the State Government / Union territory within  "four months" failing which NOC would be deemed to have  been granted. It may be stated that after the decision in St. John

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Teacher Training Institute, the Regulations have been  amended in 2003 and now the period has been prescribed  as six months.   Mr. Andhyarujina strongly relied upon the above  decision and submitted that the point is finally concluded in  the above case and once the action has been taken by the  State Government in pursuance of the Regulations framed  by NCTE which were held intra vires and constitutional, the  decision of the State Government cannot be ignored or  overlooked by NCTE and is binding upon it.  According to  the learned counsel, the Cabinet Sub-Committee took into  account relevant circumstances and decided not to grant  NOC.  The said decision cannot be held bad and NCTE  cannot grant recognition to colleges to which NOC had not  been granted by the State Government. We may, however, state that NCTE and contesting  respondents are right in relying upon a decision of this  Court in Adhiyaman, referred to earlier.  In Adhiyaman,  this Court was called upon to consider the constitutional  validity of some of the provisions of the Tamil Nadu Private  Colleges (Regulation) Act, 1976 and the Rules made  thereunder as also the Madras University Act, 1923 and the  Rules made thereunder.  It was contended that certain  provisions of the State Acts were inconsistent with the  provisions of the Central Act (All India Council for Technical  Education Act, 1987) and hence were inoperative.  This  Court upheld the contention of the petitioners and ruled  that State Legislature could not enforce an Act if it is  inconsistent with the Central Act and to the extent of such  inconsistency, the Central Act would operate and State Acts  would be inoperative. It is, no doubt, true that in that case, this Court  considered the provisions of the Technical Education Act,  1987 but the provisions of that Act are almost similar to  the provisions of 1993 Act with which we are concerned.   The Preamble of the said Act is also similar to the one with  which we are concerned and reads thus: "An Act to provide for the establishment of an  All India Council for Technical Education with a  view to the proper planning and co-ordinaed  development of the technical education system  throughout the country, the promotion of  qualitative improvements of such education in  relation to planned quantitative growth and the  regulation and proper maintenance of norms  and standards in the technical education system  and for matters connected therewith."

The Court considered the relevant provisions of the  Constitution read with Lists I, II and III of Schedule VII and  held that the subject of technical education rested with  Parliament as it was covered by Entry 66 of List I of  Schedule VII and it was not covered by List II or List III.   Accordingly, it was held that if an Act of State Legislature  was inconsistent with the provisions of an Act of  Parliament, to the extent of such inconsistency, it would be  inoperative. Referring to the Preamble of the Act, the Court  stated; "The Preamble of the Central Act states that  it has  been enacted to provide for the establishment of an All  India Council for Technical Education with a view to (i)  proper planning and coordinated development of the  technical education system throughout the country, (ii)  promotion of qualitative improvement of such education in  relation to planned quantitative growth, (iii) regulation and

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proper maintenance of norms and standards in the  technical education system, and (iv) for matters connected  therewith." In that case, the State Government granted  permission to the petitioner Trust to start new Engineering  College subject to fulfillment of certain conditions.   Temporary affiliation was also granted by the University  and the college started functioning from July, 1987.  In  1989, a show cause notice was issued by the State on the  basis of the report of High Power Committee that the Trust  had not fulfilled the conditions imposed on it and as to why  permission should not be withdrawn.  University also issued  a similar notice calling upon the Trust to show cause why  affiliation should not be cancelled.  The Trust, hence,  approached the High Court by filing a petition under Article  226 of the Constitution contending inter alia that after  passing of the Central Act, neither the State Government  nor the University had power, authority or jurisdiction to  take any action and the only power the State had was to  refer the matter to the All India Council of Technical  Education since the duty was imposed on the Council for  recognizing or derecognizing any technical institution in the  country.  The contention was upheld by the High Court. When the matter came up before this Court at the  instance of the State Government, the Court observed that  the larger question involved in the case was the conflict  between the Central Act on the one hand and the State  Acts on the other.  Then considering the relevant provisions  of the Constitution and the Central Act and State Acts, the  Court stated:  "The aforesaid provisions of the Act including  its preamble make it abundantly clear that the  Council has been established under the Act for  coordinated and integrated development of the  technical education system at all levels  throughout the country and is enjoined to  promote qualitative improvement of such  education in relation to planned quantitative  growth.  The Council is also required to regulate  and ensure proper maintenance of norms and  standards in the technical education system.   The Council is further to evolve suitable  performance appraisal system incorporating  such norms and mechanisms in enforcing their  accountability.  It is also required to provide  guidelines for admission of students and has  power to withhold or discontinue grants and to  de-recognise the institutions where norms and  standards laid down by it and directions given  by it from time to time are not followed.  This  duty and responsibility cast on the Council  implies that the norms and standards to be set  should be such as would prevent a lopsided or  an isolated development of technical education  in the country.  For this purpose, the norms and  standards to be prescribed for the technical  education have to be such as would on the one  hand ensure development of technical education  system in all parts of the country uniformly;  that there will be coordination in the technical  education and the education imparted in various  parts of the country and will be capable of being  integrated in one system; that there will be  sufficient number of technically educated  individuals and that their growth would be in a

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planned manner; and that all institutions in the  country are in a position to properly maintain  the norms and standards that may be  prescribed by the  Council.  The norms and  standards have, therefore, to be reasonable and  ideal and at the same time, adaptable,  attainable and maintainable by institutions  throughout the country to ensure both  quantitative and qualitative growth of the  technically qualified personnel to meet the  needs of the country.  Since the standards have  to be laid down on a national level, they have  necessarily to be uniform throughout the  country without which the coordinated and  integrated development of the technical  education all over the country will not be  possible which will defeat one of the main  objects of the statute.  This country as is well  known, consists of regions and population which  are at different levels of progress and  development or to put it differently, at differing  levels of backwardness.  This is not on account  of any physical or intellectual deficiency but for  want of opportunities to develop and contribute  to the total good of the country.  Unnecessarily  high norms or standards, say for admission to  the educational institutions or to pass the  examinations, may not only deprive a vast  majority of the people of the benefit of the  education and the qualification, but would also  result in concentrating technical education in  the hands of the affluent and elite few and in  depriving the country of a large number of  otherwise deserving technical personnel.  It is  necessary to bear this aspect of the norms and  standards to be prescribed in mind, for a major  debate before us centred around the right of  the States to prescribe standards higher than  the one laid down by the Council.  What is  further necessary to remember is that the  Council has on it representatives not only of the  States but also for the State Universities.  They  have, therefore, a say in the matter of laying  down the norms and standards which may be  prescribed by the Council for such education  from time to time.  The Council has further the  Regional Committees, at present, at least, in  four major geographical zones and the  constitution and functions of the Committees  are to be prescribed by the regulations to be  made by the Council.  Since the Council has the  representation of the States and the  professional bodies on it which have also  representation from different States and  regions, they have a say in the constitution and  functions of these Committees as well.  What is  further important to note is that the subject  covered by this statute is fairly within the scope  of Entry 66 of List I and Entry 25 of List III.   Further, these regulations along with other  regulations made by the Council and the rules  to be made by the Central Government under  the Act are to be laid before Parliament.  Hence,  on the subjects covered by this statute, the  State could not make a law under entry 11 of

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List II prior to Forty-second Amendment nor  can it make a law under Entry 25 of List III  after the Forty-second Amendment.  If there  was any such existing law immediately before  the commencement of the Constitution within  the meaning of Article 372 of the Constitution,  as the Madras University Act, 1923, on the  enactment of the present Central Act, the  provisions of the said law if repugnant to the  provisions of the Central Act would stand  impliedly repealed to the extent of repugnancy.   Such repugnancy would have to be adjudged on  the basis of the tests which are applied for  adjudging repugnancy under Article 254 of the  Constitution."                  (emphasis supplied)

The Court then considered the provisions of the State  Law and concluded; "The provisions of the State Act  enumerated above show that if it is made applicable to the  technical institutions, it will overlap and will be in conflict  with the provisions of the Central Act in various areas and,  in particular, in the matter of allocation and disbursal of  grants, formulation of schemes for initial and in-service  training of teachers and continuing education of teachers,  laying down norms and standards for courses, physical and  institutional facilities, staff pattern, staff qualifications,  quality instruction assessment and examinations, fixing  norms and guidelines for charging tuition and other fees,  granting approval for starting new technical institutions and  for introduction of new courses or programmes, taking  steps to prevent commercialization of technical education,  inspection of technical institutions, withholding or  discontinuing grants in respect of courses and taking such  other steps as may be necessary for ensuring compliance  of the directions of the Council, declaring technical  institutions at various levels and types fit to receive grants,  the constitution of the Council and its Executive Committee  and the Regional Committees to carry out the functions  under the Central Act, the compliance by the Council of the  directions issued by the Central Government on questions  of policy etc. which matters are covered by the Central Act.   What is further, the primary object of the Central Act, as  discussed earlier, is to provide for the establishment of an  All India Council for Technical Education with a view,  among others, to plan and coordinate the development of  technical education system throughout the country and to  promote the qualitative improvement of such education  and to regulate and properly maintain the norms and  standards in the technical education system which is  subject within the exclusive legislative field of the Central  Government as is clear from Entry 66 of the Union List in  the Seventh Schedule.  All the other provisions of the Act  have been made in furtherance of the said objectives.   They can also be deemed to have been enacted under  Entry 25 of List III.  This being so, the provisions of the  State Act which impinge upon the provisions of the Central  Act are void and, therefore, unenforceable.  It is for these  reasons that the appointment of the High Power Committee  by the State Government to inspect the respondent-Trust  was void as has been rightly held by the High Court." The same principle was applied to University Act and  the Court held that after coming into operation of the  Central Act, the operation of the University Act would be  deemed to have become unenforceable in case of technical  colleges.  It was observed that the provisions of the

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University Acts regarding affiliation of technical colleges  and the conditions for grant of continuation of such  affiliations by the University would remain operative but  the conditions that are prescribed by the University for  grant and continuance of affiliation must be in conformity  with the norms and guidelines prescribed by the Council. The Court then considered the argument put forward  on behalf of the State that while it would be open for the  Council to lay down minimum standards and requirements,  it did not preclude the State from prescribing higher  standards and requirements. Negativing the contention, the Court quoted with  approval the following observations of B.N. Rau, J. in G.P.  Stuart v. B.K. Roy Chaudhury (AIR 1939 Cal 628: 43 Cal  W.N 913); "It is sometimes said that two laws cannot be  said to be properly repugnant unless there is a  direct conflict between them, as when one says  "do" and the other "don’t", there is no true  repugnancy, according to this view, if it is  possible to obey both the laws.  For reasons  which we shall set forth presently, we think that  this is too narrow a test; there may well be  cases of repugnancy where both laws say  "don’t" but in different ways.  For example, one  lay may say "No person shall sell liquor by  retail, that is, in quantities of less than five  gallons at a time" and another law may say,  "No person shall sell liquor by retail, that is, in  quantities of less than ten gallons at a time."   Here, it is obviously possible to obey both laws,  by obeying the more stringent of the two,  namely the second one; yet it is equally obvious  that the two laws are repugnant, for to the  extent to which a citizen is compelled to obey  one of them, the other, though not actually  disobeyed, is nullified."

Reference was also made to a decision of this Court  in Jaya Gokul Educational Trust.  Relying on Adhiyaman  and reiterating the principle laid down therein, the Court  there held that once the field was occupied by an Act of  Parliament, State Legislature could not have made a  statute inconsistent with the provisions of Central  Legislation.  The Court, therefore, held that even if there  was a State Law which required something to be done for  the approval of the State Government for establishing a  technical institution, such law, if it is inconsistent or  repugnant with the Central Law, it would be "void" to the  extent of repugnancy to the Act of Parliament. In that case also, like here, the State Government  sought to support its action of not permitting new  Engineering College to be established on the ground of  ’policy’.  It was stated by the State of Kerala that it would  not permit establishment of any more Engineering Colleges  in the State in view of large number of already existing  colleges bearing in mind the interest of the students and  the employment condition.  Relying on Adhiyaman, it was observed that the so  called ’policy’ of the State Government as mentioned in the  counter-affidavit filed by the State, could not be made a  ground for refusing approval. The Court held that  ’essentiality certificate’ cannot be withheld by the State  Government on any ’policy consideration’ because the  policy in the matter of establishment of a new college

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rested essentially with the Central Government.  The Court Stated:  "Therefore, the State could not have any ’policy’  outside the AICTE Act and indeed if it had a  policy, it should have placed the same before  AICTE and that too before the latter granted  permission. Once that procedure laid down in  the AICTE Act and Regulations had ben followed  under Regulation 8(4), and the Central Task  Force had also given its favourable  recommendations, there was no scope for any  further objection or approval by the State. We  may however add that if thereafter, any fresh  facts came to light after an approval was  granted by AICTE or if the State felt that some  conditions attached to the permission and  required by AICTE to be complied with, were  not complied with, then the State Government  could always write to AICTE, to enable the latter  to take appropriate action." (emphasis supplied)

Our attention was also invited to Thirumuruga  Kirupananda Variyar Thavathiru Sundara Swamigal Medical  Educational & Charitable Trust v. State of Tamil Nadu &  Others, [(1996) 3 SCC 15 : JT 1996 (2) SC 692]. There the  question was of repugnancy between the provisions of the  Indian Medical Council Act, 1956 and Tamil Nadu Medical  University Act, 1987 renamed as Dr. M.G.R. Medical  University, Tamil Nadu (Amendment and Validation) Act,  1989. Section 10A of the Indian Medical Council Act, 1956  as inserted by the Indian Medical Council (Amendment) Act,  1993, which was a Central Act enacted by the Parliament,  required permission for establishing new medical colleges in  the country "notwithstanding anything contained" in the  said Act or any other law for the time being in force.   Proviso to sub-section (5) of Section 5 of Dr. M.G.R. Medical  Univeristy, Tamil Nadu Act, 1989 (State Act), however,  enacted: "No college shall be affiliated to the University  unless the permission of the Government to establish such  college has been obtained". In the light of the proviso to  sub-section (5) of Section 5 of the State Act, it was  contended by the State Government that unless permission  of the Government to establish medical college had been  obtained from the State Government, no medical college  could be opened, even if such permission was granted by  the Medical Council under the Central Act. In that case too,  the State Government refused to grant permission to any  private Trust to establish medical college by exercising  power under the State Act, on the ground that it was the  policy of the Government not to permit a private Trust or  Management to start medical/dental college. Relying on  proviso to sub-section (5) of Section 5 of the State Act, it  was urged on behalf of the State Government that the  action taken by the State Government was legal, valid and  in accordance with law and an institution cannot make any  grievance against the State Government.  The Court thus  was called upon to consider the question as to which Act  would pevail.  Whereas the Central Act conferred power on  the Central Government on the basis of the  recommendation made by the Medical Council of India to  open a new medical college, the State Act required the  permission of the State Government by enacting that no  college shall be affiliated to the University unless such  permission is granted by the State Government. Referring to the relevant provisions of the

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Constitution, of both the Acts and the relevant case law on  the point, this Court observed that the question which had  arisen before the Court was as to the role of the State  Government in the matter of establishment of a medical  college. Interpreting the statutory provisions, this Court held  that by enacting Section 10A, Parliament had made "a  complete and exhaustive provision covering the entire field  for establishment of new medical college in the country". No  further scope is left for the operation of the State  Legislation in the said field which was fully covered by the  law made by Parliament. The Court, therefore, held that the  proviso to sub-section (5) of Section 5 of the State Act  which required prior permission of the State Government  for establishing a medical college was repugnant to Section  10A of the Central Act and to the extent of repugnancy, the  State Act would not operate. The Court noted that in the  scheme that had been prepared under the Regulations for  the establishment of new medical colleges, one of the  conditions for the qualifying criteria laid down was  ’essentiality certificate’ regarding desirability and of having  the proposed college at the proposed location which should  be obtained from the State Government. Proviso to sub- section (5) of Section 5 of the Act, therefore, must be  construed only as regards "proposed location". The  ’essentiality certificate’, however, could not be withheld by  the State Government on any ’policy consideration’  inasmuch as the policy and the matter of establishment of  new medical college rested with the Central Government  alone. From the above decisions, in our judgment, the law  appears to be very well settled. So far as co-ordination and  determination of standards in institutions for higher  education or research, scientific and technical institutions  are concerned, the subject is exclusively covered by Entry  66 of List I of Schedule VII to the Constitution and State  has no power to encroach upon the legislative power of  Parliament. It is only when the subject is covered by Entry  25 of List III of Schedule VII to the Constitution that there  is a concurrent power of Parliament as well as State  Legislatures and appropriate Act can be by the State  Legislature subject to limitations and restrictions under the  Constitution.  In the instant case, admittedly, Parliament has  enacted 1993 Act, which is in force. The Preamble of the  Act provides for establishment of National Council for  Teacher Education (NCTE) with a view to achieving planned  and coordinated development of the teacher-education  system throughout the country, the regulation and proper  maintenance of norms and standards in the teacher- education system and for matters connected therewith.   With a view to achieving that object, National Council for  Teacher Education has been established at four places by  the Central Government. It is thus clear that the field is  fully and completely occupied by an Act of Parliament and  covered by Entry 66 of List I of Schedule VII.  It is,  therefore, not open to the State Legislature to encroach  upon the said field. Parliament alone could have exercised  the power by making appropriate law. In the circumstances,  it is not open to State Government to refuse permission  relying on a State Act or on ’policy consideration’. Even otherwise, in our opinion, the High Court was  fully justified in negativing the argument of the State  Government that no permission could be refused by the  State Government on ’policy consideration’. As already

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observed earlier, policy consideration was negatived by this  Court in Thirumuruga Kirupananda Trust, as also in Jaya  Gokul Educational Trust.         It is true that during the pendency of St. John’s  Teachers Training Institute, NCTE framed regulations called  the NCTE (Form of application for recognition, the time limit  of submission of application, determination of norms and  standards for recognition of teacher education programmes  and permission to start new course or training)  Regulations, 2002.         Regulation 6 required production of ’No Objection  Certificate’ from the State Government/Union Territory.   Clause (1) thereof read thus; 6.      Requirement of No Objection Certificate          from    the State Government/U.T.          Administration.

(i)     Application from every institution seeking  recognition to start a course or training in  teacher education or from an existing  institution seeking permission to start a  new course or training and/or increase in  intake shall be accompanied by a No  Objection Certification (NOC) from the  State or Union Territory in which the  institution is located.                                                                                                       (emphasis supplied)

(ii) to (vii)  \005     \005            \005            \005    \005

       The above Regulations came into force from  November 13, 2002 and they insisted that application  should be accompanied by NOC from the State  Government/Union Territory in which the institution is  located.         In view of the fact, however, that according to us, the  final authority lies with NCTE and we are supported in  taking that view by various decisions of this Court, NCTE  cannot be deprived of its authority or power in taking an  appropriate decision under the Act irrespective of absence  of No Objection Certificate by the State Government/Union  Territory.  Absence or non-production of NOC by the  institution, therefore, was immaterial and irrelevant so far  as the power of NCTE is concerned. At the time of hearing, our attention was invited by  the learned counsel for the contesting respondents to  Perspective Plan 2003-07 published by the National Council  for Teacher Education, New Delhi. It was, inter alia,  observed as under: "In the 10th Plan Central Scheme on  Teacher Education, it has been estimated that  the country will need additional 4,58,000  primary school teacher sand additional 6,08,857  upper primary school teachers. Therefore, the  requirements of the professionally qualified  teachers have to be met by increasing  opportunities of pre-service elementary  education based on manpower planning of  teachers for each State/Union Territory. For  improving the quality of teacher education, the  curriculum of pre-service programmes has to be  renewed for making it relevant to the objectives  of education and the directions contained in the  Constitution. Above all, professional competence  o teacher educators will have to be developed

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through in-service programmes and by  introducing different M.Ed. courses with focus on  pre-service education of stage-specific school  education. It is planned to institute a National  Eligibility Test for Teacher Educators based on  skills and competencies required for the teaching  profession."

Reference was also made to "Department of  Secondary and Higher Education" published by the  Government of India on January 25, 2006.  The compilation  relates to Secondary Education, Adult Education, Technical  Education, Higher Education etc. In introduction, it has  been stated : "The Secondary Education which serves as a  bridge between primary and higher education is  expected to prepare young persons between the  age group 14-18 in the world of work and entry  into higher education. The Secondary Education  starts with classes 9-10 leading to higher  secondary classes 11 and 12. The relevant  children population at the secondary and senior  secondary level, as projected in 1996-97 by  NSSO has been estimated at 9.66 crores.  Against this population, the enrolment figures of  the 1997-98 shows that only 2.70 crores  attending schools. Thus, two-third of the eligible  population remains out of the school system. To  accommodate the children in schools at  secondary level, we have at present 1.10 lakhs  institutions (1998-99). With the emphasis on  universalisation of elementary education and  programmes like District Primary Education  Programme, the enrolment is bound to increase  and once this happens, we may require more  than two lakhs institutions at the secondary level  to accommodate them." The counsel also referred to the "Annual Report :  2004-05" prepared by the Department of Elementary  Education and Literacy, Department of Secondary and  Higher Education, Ministry of Human Resource  Development, Government of India. In the ’Planning’, it was  stated: "Planning

The National Policy on Education, 1986, as  modified in 1992 envisages the improvement  and expansion of education in all sectors,  elimination of disparities in access and laying  greater stress on improvement in the quality  and relevance of education at all levels,  including technical and professional education.  It also emphasizes that education must play a  positive and interventionist role in correcting  social and regional imbalance, empowering  women and in securing a rightful place for the  disadvantaged and the Minorities.

The nation is firmly committed to providing  Education for all, the priority areas being free  and compulsory primary education, covering  children with special needs, eradication of  illiteracy, vocationalisation, education for  women’s equality, and special focus on the

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education of SCs/STs and the Minorities.

The Central Avisory Board of Education (CABE),  the highest advisory body to advise the Central  and State governments in the field of education,  was established in 1920 and dissolved in 1923  as a measure of economy. It was revived in  1935 and the tenure of the last constituted  Central Advisory Board of Education (CABE)  expired in March 1994. Despite the fact that in  the past important decisions had been taken on  the advice of CABE and it had provided a forum  for widespread consultation and examination of  issues relating to educational and cultural  development, CABE was unfortunately not  reconstituted after the expiry of its extended  tenure in March 1994. Considering that CABE  has a particularly important role to play at the  present juncture in view of the significant socio  economic and socio-cultural developments  taking place in the country, and that the Central  and State Governments, educationists and  people representing all interests should increase  their interaction and evolve a participative  process of decision-making in education, CABE  has since been reconstituted by the  Government in July 2004. The Board consists of  nominated members representing various  interests in addition to representatives of the  Government of India, State Governments and  UT administrations, elected members form the  Lok Sabha and the Rajya Sabha, etc. The first  meeting of the reconstituted CABE was held on  August 10-11, 2004, and seven CABE  Committees have been set up on the subjects  of:

i)      Free and Compulsory Education Bill and  other issues related to Elementary  Education ii)     Girls Education and the Common School  System (iii)   Universalisation of Secondary Education (iv)    Autonomy of Higher Education Institutions (v)     Integration of Culture Education in the  School Curriculum (vi)    Regulatory Mechanism for Text Books and  Parallel Text Books taught in Schools  Outside the Government system (vii)   Financing of Higher and Technical Education

A meeting of the Education Ministers of all  States/UTs dealing with school education was  held on October 28, 2004, at Vigyan Bhawan  under the chairmanship of the Minister of  Human Resource Development.

In order to facilitate donations, including  smaller amounts, both from India and abroad,  for implementing projects/programmes  connected with the education sector, the  Government had constituted the "Bharat  Shiksha Kosh" to receive donations/  contributions/endowments, from individuals and  corporates, Central and State Governments,

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non-resident Indians and people of Indian origin  for various activities across all sectors of  education.

An Ordinance was promulgated on November  11, 2004, to enable setting up of a National  Commission for Minority Educational Institutions  to advise the Central Government or any State  Government on any question regarding the  education of Minorities, to look into complaints  regarding violation of the rights of the  Minorities, to establish and administer  educational institutions of their choice and to  permit a Minority educational institution to seek  direct affiliation with a scheduled Central  University. The Commission has started  functioning with a Chairman and two Members."

’Teacher Education’ has been dealt with thus; "Teacher Education The Centrally Sponsored Scheme of Teacher  Education was launched in 1987-88 to create an  institutional infrastructure to provide academic  and technical resource support for continuous  education and training of school teachers. While  District Institutes of Education and Training  (DIETs) set up under the Scheme provide  academic resource support to formal and non- formal elementary school teachers, Colleges of  Teacher Education (CTEs) and Institutes of  Advanced Study in Education (IASEs) have been  given the responsibility of organizing pre- service and in-service training of secondary  school teachers. IASEs are also expected to  conduct programmes for the preparation of  elementary school teacher educators.

The Scheme has been revised for the Tenth  Plan and guidelines of the revised Scheme were  issued to States in January 2004, with emphasis  on operationalising sanctioned DIETs, CTEs and  IASEs in an optimum manner, and on improving  the quality of teacher training programmes in  them. Since the inception of the Scheme in  1987-88, a total of 550 DIETs/DRCs and 131  CTEs/IASEs have been sanctioned/approved up  to December 2004."

About ’Secondary Education’, the Report states:

"Secondary Education

During the year, various schemes were  implemented in the secondary education sector  in addition to the continued support to major  institutions such as the NCERT, NIOS, and  CBSE.

There has been a substantial increase in quality  and magnitude of the academic activities of the  Central Board of Secondary Education. During  the year, CBSE introduced a course in Disaster  Management in the school curriculum. A new  course in Life Skills Education was launched in  classes VI and VII. It has also launched a new

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course in Fashion Studies. In collaboration with  Intel India, CBSE organized the first science  exhibition to evoke the interest of students in  science.

The NIOS organized an international conference  on promotion of Open Schooling in Goa.  Countries like Sri Lanka, New Zealand, Canada  and UK participated in it. During 2004-05,  several new courses were introduced and many  video films on vocational education were  completed. The NIOS has also developed audio  and video programmes based on the curriculum  in science, mathematics, etc.

Support to Sarva Shiksha Abhiyan, Vocational  Education, Education of the Disadvantaged  groups, Evolution of text books and  examination reforms are priority areas of  NCERT.

Kendriya Vidyalaya (KVs) aim at providing  uninterrupted education to children of Central  Government/Defence employees, who are liable  to frequent transfers. In 933 KVs, 7.50 lakh  students have been enrolled (as on March 31,  2004). KVs have shown steady improvement in  the performance of its students in board  examinations. This is evident from the increase  of pass percentage from 84.69 per cent to  99.44 per cent for Class X and 88.67 per cent to  92.75 per cent for Class XII during 1999 to  2004.

Jawahar Navodaya Vidyalayas aim at providing  good quality modern education, including  imparting cultural values, environment  awareness and physical education to talented  children in rural areas, irrespective of their  socio-economic conditions. There are now 509  schools in various States/UTs and 1,68,545  students were on the rolls of the NVs as on  December 31, 2004. The pass percentage in  Class X and XII in the year 2004 was 91.3 per  cent and 87.68 per cent, respectively, when  compared with the pass percentage of 88.50  per cent and 85.26 per cent in 2003.

The Integrated Education for Disabled Children  (IEDC) scheme, started in 1974, provides 100  per cent funding to State Governments/UTs and  NGOs. The scheme is proposed to be revised  soon. Under the scheme of Access with Equity,  two components strengthening of existing  scheme of girl’s hostels managed by NGOs and  one-time assistance to reputed NGOs, Trusts,  Societies and State Governments, etc., for  setting up Secondary Schools are proposed. The  scheme is therefore, being revised. The two  schemes of Computer Literacy and Studies in  Schools (CLASS) and Educational Technology  have been merged I order to increase the  effectiveness of the activities For the Tenth  Plan, five schemes, namely, Environmental  Orientation to School Education, Improvement

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of Science Education in School, National  Population Education Project, Promotion of Yoga  in School, International Science Olympiad are  being merged into a composite scheme of  Quality Improvement in Schools."

It is thus clear that the Central Government has  considered the subject of Secondary Education and Higher  Education at the national level. The Act of 1993 also  requires Parliament to consider Teacher Education System  ’throughout the country’. NCTE, therefore, in our opinion, is  expected to deal with applications for establishing new  B.Ed. colleges or allowing increase in intake capacity,  keeping in view 1993 Act and planned and co-ordinated  development of teacher-education system in the country.   It is neither open to the State Government nor to a  University to consider the local conditions or apply ’State  policy’ to refuse such permission. In fact, as held by this  Court in cases referred to hereinabove, State Government  has no power to reject the prayer of an institution or to  overrule the decision of NCTE. The action of the State  Government, therefore, was contrary to law and has rightly  been set aside by the High Court. The decision relied on by Mr. T.R. Andhyarujina in  Vidharbha Sikshan Vyawasthapak Mahasangh v. State of  Maharashtra & Others, (1986) 4 SCC 361, has no  application to the facts of the case. In that case, the power  was with the State Government to grant or refuse  permission to open B.Ed. college.  Considering the fact that  if permission would be granted, there would be a large  scale unemployment, it was decided by the State  Government not to allow new D.Ed. colleges to be opened.   It was held by this Court that such policy decision could not  be said to be arbitrary or otherwise unreasonable. The  Court in that case was not concerned with the power or  authority of State Government vis-‘-vis Central  Government and Act of Parliament.  In the present case, as  the field was fully occupied by Entry 66 of List I of Schedule  VII to the Constitution and Parliament has enacted 1993  Act, it was not open to the State Legislature to exercise  power by making an enactment. Such enactment, as per  decisions of this Court, would be void and inoperative. It  would be unthinkable that if State Legislature could not  have encroached upon a field occupied by Parliament, it  could still exercise power by executive fiat by refusing  permission under the ’policy consideration’.  The contention  of the State Government, therefore, has to be negatived. We may state at this stage that the contesting  respondents have placed heavy reliance on Section 12 of  the Act which relates to functions of the Council and  submitted that it is incumbent on the Council to lay down  norms and guidelines for ensuring planned and co-ordinated  development of the teacher education and it is not open to  the Council to delegate those ’essential functions’ to the  State Government. According to them, such delegation  would be excessive and impermissible and abdication of  power by the Council in favour of the State Government  which is inconsistent with the provisions of the parent Act  and must be held ultra vires. In reply,  Mr. Andhyarujuna  submitted that the constitutional validity of the Regulations  or Guidelines had not been challenged before the High  Court and the respondents now cannot be permitted to  raise such point in this Court in the absence of the  challenge. The respondents, however, urged that since they  succeeded before the High Court on other points, it was not

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necessary for them to challenge the vires of Regulations.   But when the State had approached this Court, they can  support the judgment on any ground available to them  including unconstitutionality of Regulations and Guidelines.   In our opinion, it is not necessary to enter into larger  question since we are satisfied that in the facts and  circumstances of the case, the High Court was justified in  allowing the petitions filed by the colleges and setting aside  the order dated December 28, 2004 passed by the State  Government and also in dismissing the petition filed by the  State holding that the order of the State was not legal. We  may, however, observe that the learned counsel for NCTE,  Mr. Raju Ramachandran is right in submitting that the  Guidelines permitted the State Government to collect  necessary data and materials and make them available to  NCTE so as to enable NCTE to take an appropriate decision.   In accordance with the provisions of 1993 Act, final decision  can be taken only by NCTE and once a decision is taken by  NCTE, it has to be implemented by all authorities in the  light of the provisions of the Act and the law declared by  this Court.  It has been so held in St. John Teachers  training Institute.  The learned counsel for the respondents are also right  in relying upon the provisions of Articles 19 and 21A of the  Constitution. Under clause (g) of Article 19(1),  all citizens  have the right to practise any profession, or to carry on any  occupation, trade or business, unless they are restrained by  imposing reasonable restrictions under Article 19(6).  In the  instant case, applications had been made by colleges to  NCTE under 1993 Act and after complying with the  provisions of the Act, permission was granted by NCTE.   The State thereafter could not have interfered with the said  decision. It is also clear that Article 21A would cover  primary as well as secondary education and petitioners  could claim benefit of Part III of the Constitution as well. The respondents have stated that they have spent  huge amount and incurred substantial expenditure on  infrastructure, library, staff, etc. and after satisfying about  the necessary requirements of law, permission had been  granted by the NCTE. If the said action is set aside on the  basis of the decision of the State Government, irreparable  loss will be caused to them. Since in our view, the order  passed and action taken by NCTE cannot be termed illegal  or unlawful and the State Government could not have  passed the impugned order refusing permission on the  ground of so called ’policy’ of not allowing new B.Ed. college  to be opened, it is not necessary for us to delve into further  the said contention. Before parting with the matter, we may state that at  one stage, the High Court has observed that "in so far as  the University is concerned, considering the provisions of  Section 15 of the NCTE Act, once permission has been  granted under Section 14, the University is bound to grant  affiliation in terms of the Act, Rules and Statutes. Section  83 requires the University to grant affiliation only after  permission is granted under Section 82 of the Maharashtra  University Act. To that extent the provisions of Section 82  and 83 are inconsistent with the provisions of NCTE Act and  are null and void".?                              (emphasis supplied) In our opinion, the observations that the provisions of  Sections 82 and 83 of the Maharashtra University Act are  "null and void" could not be said to be correct. To us, it  appears that what the High Court wanted to convey was  that the provisions of Sections 82 and 83 would not apply  to an institution covered by 1993 Act.  As per the scheme of

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the Act, once recognition has been granted by NCTE under  Section 14(6) of the Act , every university (’examining  body’) is obliged to grant affiliation to such institution and  sections 82 and 83 of the University Act do not apply to  such cases. Since we have decided the matters on merits, we  have not dealt with preliminary objection raised by the  colleges that the State cannot be said to be ’person  aggrieved’ and, therefore, has no locus standi to challenge  the decision of NCTE. We may, however, state that the academic year 2005- 06 is almost over and as such it is not possible to grant the  prayer of respondent-colleges to allow them to admit  students for the year 2005-06.  It is, therefore, directed  that the order passed by NCTE would operate from the next  academic year, i.e. from the year 2006-07. For the foregoing reasons, all the appeals filed by the  State are liable to be dismissed and are accordingly  dismissed with costs. Interim stay granted earlier is hereby  vacated.