R.M. Savant, J.
1. Rule. Rule with the consent of the parties made returnable forthwith. Heard the learned Counsel for the parties.
2. The above Petitions have been filed against the 1st Respondent seeking a direction to forthwith grant necessary permission and affiliation to the Petitioners to start B.Ed. Colleges for conducting the B.Ed. Course to the Petitioners, who are having Recognition Certificates from the NCTE. Since the above Petitions involve common question, they are heard and decided together. For the sake of convenience the facts in Writ Petition No. 5886 of 2009 would be referred to.
3. The Petitioner No. 1 in the said Writ Petition No. 5886 of 2009 is a society registered under the Societies Registration Act, 1860 and also a trust registered under the Bombay Public Trust Act, 1950. The Petitioner No. 1 claims to run several schools, high schools, arts, sicence, commerce college, including professional colleges such as BAMS, B.SC. I.T. The Petitioner No. 1 claims to be a minority institution being dedicated to the welfare of minority sector. The Petitioner No. 1 applied to the Respondent No. 3 for grant of Recognition Certificate to start B.Ed course with annual intake of 100 candidates from the year 2009-2010. The Petitioners claim to have complete infrastructure for starting the said course in the Petitioner No. 2-Institution. The said application of the Petitioner No. 1 was considered by the Respondent No. 3 and vide its order dated 26.11.2008 the Respondent No. 3 granted the said recognition certificate to the Petitioner No. 1 to start B-Ed course for the academic year 2009-2010. In so far as Minority Educational Institutions are concerned, the Head Office of Respondent No. 3 - NCTE, it appears, had issued a circular dated 3.2.2008 to all its Regional Branches including the Third Respondent herein thereby issuing directions that the Applications from minority educational institution, which are formally declared as minority and who have submitted their applications to the Regional Committee before cut of date i.e. 31-10-2008, may be considered for the academic year 2009-2010, even from the States for which a ban has been imposed to consider the applications for the academic year 2009-2010 in view of the recommendations of the respective State Governments/Union Teritories Administrations. It appears that similar Recognition Certificates have been issued to the Petitioners in the companion Petitions.
4. The Petitioners thereafter submitted the said recognition certificate to the Respondent No. 2 i.e the University of Mumbai which in turn forwarded the said Application of the Petitioners to the Respondent No. 1 vide its letter dated 29-12-2007. That the Respondent No. 2 has forwarded the application of the Petitioners to the Respondent No. 1 was informed to the Petitioners by the Respondent No. 2 by its letter dated 3-1-2008. Since the Petitioners could not get permission from the 1st Respondent within the time frame prescribed, the 2nd Respondent by its letter dated 24-2-2009 informed the Petitioners that one third amount of affiliation fee will be refunded to the Petitioners as per the rules in due course. The Petitioners claimed to have all the necessary infrastructure in place in so far as Petitioner No. 2 is concerned and have also the employees including teaching and non-teaching staff as per the norms prescribed by the Respondent No. 3. The Petitioners in view of the non-receipt of the permission from the 1st Respondent issued two reminders to the Respondent No. 1 dated 10-6-2009 and 18-6-2009 requesting the Respondent No. 1 to do the needful and issue letter of approval at the earliest so that affiliation could be granted by the 2nd Respondent University and the admission for academic year 2009-2010 could be started. The Petitioners also claim to have addressed a request letter to the Hon'ble Cabinet Minister of the Department of Higher & Technical Education, Government of Maharashtra. Upon receiving no response to the said letter, the Petitioners have filed the instant Petition.
5. In so far as other Petitions are concerned, similar reminders/letters have also been addressed by the Petitioners in the said companion writ petitions.
6. In so far as the Petitioners above named are concerned, it is the contentions of the Petitioners that they are entitled to establish an educational institution of their choice on account of the minority status. The Petitioners relying upon the circular dated 3.2.2008 issued by the Head Office of the 3rd Respondent NCTE which circular inter alia lays down that the applications from Minority Educational Institution which are formally declared as such and which submitted their applications to the Regional Committee before cut of dated 31-10-2008 may be consider for such courses for which ban has been imposed to consider the applications for the academic year 2009-2010 in view of the recommendations of the respective State Governments/Union Territories. It is the contention of the Petitioners that in the light of the observations of the NCTE it is incumbent upon the 1st Respondent to forthwith grant approval letter in favour of the Petitioners.
7. It is the contention of the Petitioners in the above Petition as well as in the companion matters that in view of the provisions of the NCTE Act 1993 once the NCTE has granted recognition certificate, it is mandatory on the Respondent Nos. 1 and 2 to grant permission and necessary affiliation for the B.Ed Colleges to be run by them. The Petitioners have principally relied upon the provisions ofr the NCTE Act, 1993 and the judgment of the Apex Court reported in : 2006(9) SCC 1 in the matter of State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidalaya and Ors. in support of their submissions.
8. On behalf of the State Government affidavit in reply has been filed by one Sadashiv Shivdas, Joint Secretary to the Government, Higher and Technical Education Department, Government of Maharashtra. It has been stated in the said affidavit that requirement of the teachers is about 8000 per year whereas the intake capacity the B Ed colleges which have been sanctioned is about 40000 , and therefore Hon'ble Chief Minister of the State had written D.O letter dated 11-7-2006 to the Hon'ble Minister, Human Resource Development, Government of India, New Delhi requesting them to direct the NCTE authorities not to issue any permission for opening of new B.Ed Colleges without due deliberation with the State authorities.
9. It has further been stated in the said affidavit that by letter dated 21-11-2008, the Regional Director, Western Regional Committee, NCTE, Bhopal was directed by the Member Secretary, NCTE, New Delhi not to consider any application for B.Ed Course for the academic year 2009-2010 from the State of Maharashtra and all such applications should be returned along with processing fees and other documents to the Institution concerned. The affidavit further goes on to state that there are already 469 B.Ed Colleges in existence in Maharashtra and the intake capacity presently of all the colleges is approximately 50,000 students every year whereas the requirement is only of 8,000 teachers per year in the State. It is further stated in the said affidavit that to avoid further unfortunate events of unemployment, mal-practices, frustration of trained graduates, the State Government thought it fit not to grant further permission to B Ed Colleges. The affidavit further goes on to state that issuing permission without taking into consideration the existing intake capacity will create imbalance between supply of trained graduate teachers and requirement in the school. It is further stated that if excess permission is given for starting new B Ed Colleges then there is possibility of law and order situation arising on account of unemployment of the trained graduates. It is therefore stated that in view of the aforesaid reasons the State Government has not granted permission to the Petitioners to start B Ed college.
10. We have heard the learned Counsel for the parties. On behalf of the Petitioners, the principal submission is that once the Respondent No. 3 has granted recognition certificate, it is not open for the Respondent No. 1 to refuse permission to the Petitioners to start the B Ed college. The learned Counsel for the Petitioners placed reliance on the scheme of the NCTE Act, 1993 which had come up for consideration before the Apex Court in the Judgment of the Sant Dnyaneshwar Shikshan Shastra Mahavidalaya (Supra). It is submitted on behalf of the Petitioners that final authority for starting B Ed College is the NCTE and it is therefore neither open to the State Government nor the Respondent No. 2 University to consider local condition or apply its policy to refuse such permission. In fact it is contended that the State Government has no power to over rule the decision of the NCTE, and therefore inaction on the part of the State Government or refusal on the part of the State Government to grant permission to the Petitioners to start B Ed college is contrary to law. The learned Counsel for the Petitioners drew our attention to the various Paras of the judgment cited supra in that behalf.
11. On the other hand it is contended on behalf of the Respondent No. 1 that the opinion expressed by the State Government is necessary to be considered by the NCTE whilst deliberating whether the recognition certificate ought to be granted or not to a particular institution. It is further contended on behalf of the Respondent No. 1 that considering the present intake capacity of the existing B Ed colleges which is about 50,000 and also considering the requirement which is about 80,000 teachers, the State Government thought it fit not to grant any permission for opening of any new B Ed college. The learned Counsel for the Respondent No. 1, therefore, submitted that though the Respondent No. 3 has granted recognition certificate, the State Government still has a role to play in the matter of granting of permission to start a new B Ed College.
12. The learned Counsel for the Respondent No. 2 University submitted that the Respondent No. 2 University has no objection to grant affiliation provided permission is granted by the Respondent No. 1 and in fact the Respondent No. 2 has submitted the papers to the Respondent No. 1 for necessary approval.
13. It is pertinent to note that in each of the above Petitions the Petitioner has a recognition order from the NCTE, the concerned Universities have also forwarded the papers to the State Government and it is the State Government which is not taking any decision as regards grant of permission to the Petitioners and affiliation to the concerned Universities. As mentioned herein above the State Government has filed affidavit in Writ Petition No. 5884 of 2009. The stand of the State Government in the said affidavit has been referred to earlier in this judgment. The stand of the State Government is, therefore, that the permission cannot be granted to the Petitioners in view of the fact that the State Government is of the opinion that already intake capacity of the existing B Ed colleges is far beyond the requirement of teachers in the State.
14. It is therefore required to be considered whether the State Government can refuse permission on the alleged policy mentioned in the affidavit. In the judgment cited supra wherein the issue was as regards granting of no objection or refusing to grant affiliation by the University examining body in the matter of the B.Ed colleges, the Apex Court has held on consideration of the provisions of NCTE Act and considering that the said Act is an act of Parliament referable to Entry 66 of List I of Schedule VIII. The Apex Court has held that the final authority under the said Act lies with the NCTE and the NCTE cannot be deprived of its authority or power in taking appropriate decision under the said Act irrespective of absence of no objection certificate by the State Government/Union Territories. It has been held that the State Government can not refuse the permission on the basis of policy considerations. It has also been held by the Apex Court in the said judgment that the State Government has no power to refuse permission or over rule the decision of the NCTE. The relevant paras of the said judgment are reproduced herein under:
63. In the instant case, admittedly, Parliament has enacted the 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 sustem 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, the 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 for 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 the State Government to refuse permission relying on a State Act or on 'policy consideration.'
64. Even otherwise, in our opinion, the High Court was fully justified in negativing the argument of the State Government that permission could be refused by the State Government on 'policy consideration'. As already observed earlier, policy consideration was negatived by this Court in Thirumuruga Kirupananda Turst as also in Jaya Gokul Educational Trust.
68. 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 on 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.
74. 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 Bed colleges or allowing increase in intake capacity, keeping in view the 1993 Act and planned and coordinated 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, the 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.
75. The decision relied on by Vidharbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra 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 large-scale unemployment, it was decided by the State government not to allow new BEd 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 the State Government vis-a-vis the Central Government and the 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 the 1993 Act, it was not open to the enactment, as per the decisions of this Court, would be void and inoperative. It would be unthinkable that if the 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.
80. In our opinion, the observations that the provisions of Sections 82 and 83 of the Maharashtra Universities Act are 'null and void' could not be said to be correct. To us, it appears that what the High court wanted to covney was that the provisions of Sections 82 and 83 would not apply to an institution covered by the 1993 Act. As per the scheme of 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.
15. In our view, therefore, considering the said judgment of the Apex Court, the matter is no more res integra in so far as powers of the NCTE under the said Act are concerned, and once the NCTE has granted recognition order it is not open for the State Government to withhold the permission on the ground of policy consideration. It would be pertinent to note that the case sought to be made out by the Respondent No. 1 State Government in the above Petition was exactly the case sought to be made out before the Apex Court in the Judgment cited (Supra). The said case has been negatived by the Apex Court in Paras 63 and 74 of the said Judgment (Supra). The Respondent No. 1 has no other material than the material which was before the Apex Court in the year 2006. It is therefore not open for the Respondent No. 1 to withhold the permission on the grounds stated in the affidavit.
16. The learned AGP for the Respondent No. 1 also sought to rely upon the interim order passed by the Apex Court in the Petition(s) for Special Leave to Appeal (Civil) No(s). 4243-4244/2009 The said Appeals have been filed against the judgment and order dated 07-01-2009 passed by a Division Bench of this Court sitting at Nagpur in Writ Petition No. 2701/2008. By the said judgment, the Division Bench has set aside the recognition/permission granted by the Respondent No. 3 herein in its 101 to 109th meetings pertaining to the State of Maharashtra for establishment of 291 new D Ed colleges/courses. By the interim order, the Apex Court has directed the State Government to allot seats for admission to the students as per the scheme provided by the State. The interim order mentions cancellation of the recognition of the Applicants/Petitions before the Apex Court.
17. In our view, the reliance placed by the learned AGP on the said interim order of the Apex Court is misfounded, as the issue before the Division Bench was as regards recognition/permission granted to D Ed colleges by the NCTE and not the B Ed colleges which is the subject matter of the instant Petitions. In our view, considering the judgment of the Apex Court cited (Supra) above the Petitions are required to be allowed and are accordingly allowed in terms of prayer Clause (a) of all the Petitions. However, prayer Clause (a) of the Writ Petiton No. 5886 of 2009 is reproduced herein under:
(a) that this Hon'ble Court be please to issue a writ of mandamus or a writ, order or direction in the nature of mandamus thereby directing the Respondent Nos. 1 & 2 to produce the relevant records and after considering the legality and validity and propriety thereof this Hon'ble Court be please to direct the Respondent Nos. 1 and 2 to forthwith grant the necessary permission and affiliation to the Petitioners for starting a new B.Ed College at Savarkar Nagar, Dist. Thane from academic year 2009-2010 as recognized by the Respondent No. 3.
Since we have allowed the Petitions on the Application of the judgment of the Apex Court in Sant Dnyaneshwar Shikshan Shastra Mahavidalaya, we have not gone into the aspect as to whether the Petitioners who are minority institutions are entitled to the reliefs in view of the directions of the Head Office of the NCTE. Needless to state that the Petitioners would be entitled to admit the students for the academic year 2009-2010. Rule is accordingly made absolute to the aforesaid extent.