S.B. Sinha, C.J.
1. The validity of G.O. Ms. No. 398, Education (TRG.I) Department, dated 4-1 2-1997 is in question in this writ petition.
2. The question in this writ petition arises out of the following facts:
The petitioner is a society registered under the Societies Registration Act for the purpose of imparting education particularly in Karimnagar District. It, with a view to establish a college of Teacher Education and Training in Karimnagar Division, made necessary application in terms of relevant rules and also G.O. Ms. No. 398, dated 4-12-1997 for issuance of No Objection Certificate. The State Level Standing Committee got the land of the petitioner-society inspected by the District Collector, Karimnagar to ascertain the suitability for construction of B.Ed., College. As the third respondent did not place the matter before the State Level Standing Committee, the petitioner filed Writ Petition No. 16357 of 1999 and this Court by reason of an order dated 12-8-1999 directed the third respondent to place the inspection report before the State Level Standing Committee and complete the process within eight weeks from the date of receipt of order. The third respondent communicated the proceedings dated 3-11-1999, purportedly basing on the resolution of the State Level Standing Committee, rejecting the application of the petitioner for issuance of No Objection Certificate. The said proceedings are subject-matter of challenge in this writ petition.
3. The Central Government enacted the National Council for Teacher Education Act, 1993 (for short '1993 Act'). Pursuant to or in furtherance of the power conferred by Sub-section (1) and Clause (o) of Sub-section (2) of Section 32 read with Sub-section (7) of Section 70 of the 1993 Act, the Council made the regulations for the procedure to be followed by the Regional Committees of the National Council for Teacher Education. The Council, in exercise of powers conferred under Clauses (f) and (g) of Sub-section (2) of Section 32 read with Sections 14 and 15 of the 1993 Act, also made regulations providing for submission of application for recognition, determination of conditions for recognition of institutions and permission to start new course of training. Regulation 5 thereof provides for the manner of making application. Clause (e) of Regulation 5 reads thus:
'Every institution intending to offer a course or training in teacher education but was not functioning immediately before 17th August, 1995 shall submit application for recognition with a No Objection Certificate from the Slate or Union Territory in which the institution is located.'
4. The contention raised on behalf of the petitioner is that the aforementioned regulation is contrary to the provisions of the 1993 Act. It was contended that for entertaining an application, jurisdiction could not have been conferred on the State Government inasmuch as Section 14 of the Act confers power only upon the Regional Committees before whom application is required to be made. In the instant case, contends the learned Counsel, the State Government in terms of the provisions of the 1993 Act or under the said regulations could not have imposed conditions nor had the jurisdiction to reject the same. Reliance, in this connection, has been placed on the decision of the Apex Court in Jaya Gokul Educational Trust v. Commr. & Secy, to Govt. H.E. Deptt., AIR 2000 SC 1614 andthe decision of Karnataka High Court in Jachani Rashtreeya Seva Peetha, Basavanagudi v. State of Karnataka, : AIR2000Kant91 .
5. Learned Additional Advocate-General appearing on behalf of the respondents, on the other hand, would contend that grant of permission and grant of recognition connote two different meanings. He would urge that even in terms of Section 21 of the A.P. Education Act, 1982 (for short '1982 Act') the State Government has the requisite power to look into the question as regards the necessity of setting up of a new institution. Such a power, learned Advocate-General would contend, is conferred upon the State in terms of Sub-section (3) of Section 20 of the 1982 Act. Guidelines issued by the State in terms of the provisions of the 1982 Act as also in terms of the provisions of 1993 Act are almost of the same. Learned Additional Advocate-General would contend that obtaining of No Objection Certificate is prerequisite for grant of permission. Learned Additional Advocate-General distinguished the judgment of the Apex Court in Jaya Gokul Educational Trust (supra) on the ground that therein the Apex Court was concerned with interpretation of Section 10(k) of the All India Council for Technical Education Act, 1987 in terms whereof only the views of the State Government are to be obtained which was construed by the Apex Court as not amounting to approval. Learned Additional Advocate-General in support of the aforementioned contention has placed strong reliance of this Court in Govt. of A.P. v. St. Mary's Educational Society, Giddaluru, Prakasam Dist., 2001 (4) ALD 268.
6. Mr. B. Adinarayana Rao, learned Counsel appearing on behalf of respondent No. 4, on the other hand, would submit that grant of essentiality certificate is in the scheme of the 1993 Act itself. The learned Counsel would contend that in a case of this nature even the provisions of the Act could be read down. In support of the saidcontention reliance has been placed on the decision of the Apex Court in T.K.V.T.S.S. Medical Educational and Charitable Trust v. State of T.N., AIR 1996 SC 2384.
7. Co-ordination and determination of standards of higher education is a subject, which falls in List I, the Union List of VII Schedule to the Constitution of India. Entry 66 of List I reads thus:
'Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions'.
8. The Concurrent List provides the legislative power of the Central Government as also the State Government by reason of Entry 25, which is subject to Entry 66 of List I. The said Entry reads thus:
'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'.
9. The 1993 Act was enacted to provide for the establishment of a National Council for Teacher Education with a view of achieving planned and co-ordinated development of 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.
10. Section 12 of the 1993 Act occurring in Chapter III provides for functions of the Council. Chapter IV of the 1993 Act deals with the recognition of the teacher education institutions.
11. Section 14(1) clearly postulates that an application to the Regional Committee for grant of recognition to offer course or training in teacher education may be made in such form and in such manner as may be determined by the regulations. Sub-section (3) of Section 14 provides for satisfaction of the Regional Committee in relation to the factors laid down under Clause (a) viz.., adequate financial resources, accommodation, library, qualified staff, laboratory, and other conditions required for proper functioning of the institution as may be determined by the regulations.
12. Section 15 provides for obtaining of permission from the Regional Committee for starting a new course of training by a recognised institution. Sub-section (3) of Section 15, by and large, prescribes the same conditions for grant of permission for an institution for starting a new course to be obtained by a recognised institution. Section 16 of the 1993 Act starts with a non-obstante clause in terms whereof no examining body, on or after the appointed day, shall grant affiliation or hold examination unless the institution concerned has obtained permission from the Regional Committee under Section 14 of the 1993 Act. Section 17 provides for withdrawal of recognition for contravening the provisions of the Act. Section 18 provides for an appeal against any order passed by the Council under Sections 14 or 15 or 17 by a person aggrieved.
13. Section 29 of the Act provides that the Council in the discharge of its functions and duties shall be guided by such directions on the questions of policy as the Central Government may give in writing to it from time to time. Section 32 provides for regulations making power. Sub-section (1) of Section 32 empowers the Council to make regulations, not inconsistent with the provisions of the Act and the rules made thereunder, generally to carry out the provisions of the Act. Sub-section (2) of Section 32, which is illustrative in nature, empowers the Council to lay down the norms, guidelines and standards in respect of matters specified therein. Clause (e) of Sub-section (2) of Section 32 provides for the form and manner in which an application for recognition is to be submitted under Sub-section (1) of Section 14, whereas Clause (f) of Sub-section (2) of Section 32 provides for regulation making power as regards conditions required for proper functioning of the institutions and conditions for grant of permission under Clause (a) of Sub-section (3) of Section 14.
14. Regulation 5, as noticed hereinbefore, was made in terms of Clause (f) and (g) of Sub-section (2) of Section 32. Clause (e) of Regulation 5 mandates obtaining of No Objection Certificate from the State in which the institution is located if it was not functioning immediately before 17-8-1995.
15. The State of Andhra Pradesh has enacted the 1982 Act to consolidate and amend the laws relating to the educational system in the State of Andhra Pradesh for reforming, organising and developing the said educational system and to provide for matters connected therewith. Section 20 of the said Act deals with permission to be obtained by any agency for establishing an educational institution. Sub-section (3) of Section 20 reads thus:
'Any educational agency applying for permission under Sub-section (2) shall,--
(a) before the permission is granted, satisfy the authority concerned,--
(i) that there is need for providing education facilities to the people in the locality;
(ii) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority;
(iii) that the institution is proposed tobe located in sanitary and healthy surroundings;
(b) enclose to the application:--
(i) title deeds relating to the site forbuilding, play ground and garden proposed to be provided;
(ii) plans approved by the local authority concerned which shall conform to the rules prescribed therefor; and
(iii) documents evidencing availability of the finances needed for constructing the proposed buildings; and
(c) within the period specified by the authority concerned in the order granting permission:--
(i) appoint teaching staff qualified according to the rules made by the Government in this behalf;
(ii) satisfy the other requirements laid down by this Act and the rules and orders made thereunder failing which it shall be competent for the said authority to cancel the permission'.
16. In terms of the aforementioned provisions, the State, prior to coming into the force of the 1993 Act, could grant permission for starting B.Ed., colleges. Only after 1-7-1995, the State Government is denuded of its power and only the National Council for Teacher Education established under Section 3 of the 1993 Act to accord recognition to institutions which intend to offer a course or training in teacher education and to grant permission to a recognized institution to start any new course or training in teacher education. The guidelines issued by the National Council for Teacher Education provides that the State Government is vested with the power to issue the No Objection Certificate. Such a certificate is to be granted only upon verifying and satisfying the need for establishing the B.Ed., institute.
17. Now the State Government, therefore, cannot lay down any condition,which will be in contravention of the guidelines issued by the National Council for Teacher Education. However, it cannot be said that the State has absolutely no role to play in the matter or Regulation 5 of aforementioned is the ultra vires the 1993 Act.
18. In Kranthi Sangram Parishath v. N. Janardhan Reddy, : 1992(3)ALT99 (FB), a Full Bench of this Court has held:
'Advocate-General submitted that no Us is involved in the grant of permission to establish medical colleges and therefore, the principles of natural justice including bias, cannot apply to the decision rendered by the 1st respondent. It is too late in the day to urge this contention after Kraipak (supra). The selection of the best from among eligibles for appointment in the Indian Forest Service, which was considered in that decision, also did not involve a lis in the conventional sense. There was no formal proposal from one party, opposition by the other and a decision on a consideration of both. But, there was a duty to assess the eligibility of all aspirants and also to choose on a comparison of their merits and demerits on the basis of relevant and material considerations. That involved screening away the ineligibles, choice of the best and rejection of others who did not make the grade. Any process of selection when aspirants are many more than what can be granted, involves the process of comparison, elimination and selection. Every such proceeding invites in substance quasi-judicial process, particularly when people seek to assert their rights - constitutional legal or otherwise; and selection involves rejection of such claims of some of them. If conformity with tradition is obligatory, the invocation of the power to grant the licence or privilege or permission which regulates the right may be treated as a proposal. It is not as if every suchproposal shall be granted for its compliance with the prescribed formalities, if there is no competing applicant. It shall still be scrutinized to ascertain whether it is desirable that the sole applicant may or may not be granted the permission. Every such proposal may be treated as an opposition to similar proposal if there are other applicants. The selection of the required number of applicants and rejection of the others is the decision in either case. If the only applicant is refused permission or licence, that decision is also quasi-judicial. Likewise, the grant of permission to the sole applicant may in certain circumstances, be exposed to scrutiny and review for non-compliance with the statutory guidelines or being opposed to public interest. In all those cases, conventional requirements of quasi-judicial proceedings will be satisfied. It is idle to contend, after Kraipak (supra) that a process of decision-making involving ascertainment whether statutory requirements are satisfied, whether public interest is furthered or prejudiced and choice on comparison of competing claims of aspirants, who are larger in number than the positions to be offered, including rejection of a few - is purely administrative and therefore, beyond the scope of natural justice and bias'.
19. The matter came up before one of us, viz., V.V.S. Rao, J., in St. Mary's Educational Society v. Govt. of A.P., : 1999(5)ALD355 , and it has been held:
'To subject all applications to apreliminary verification at the stage of giving No Objection Certificate, the Government is entitled to lay down conditions which may serve as guidelines for the State Level Standing Committee. If these guidelines are contrary to the provisions of NCTE Act, the No Objection Certificate cannot be refused to the applicant on the ground that a saledeed evidencing provision of two hectares of land is not enclosed. Such an eventuality would result in divesting the Regional Committee, (which has to satisfy itself after obtaining such other particulars as it may consider necessary under Section 14 of NCTE Act as the accommodation for college) of its power under the said provision. Further, as mentioned above while rejecting application for recognition, the Regional Committee is under an obligation to record reasons for rejecting which can only be after giving an opportunity to the concerned applicant for making representation. Whereas in the Government Order there is no provision for providing with reasonable opportunity of making representation when No Objection Certificate is rejected'.
20. In St. Mary's Educational Society (supra), a concession was made to the effect that the National Council for Teachers Education would grant recommendation only such number of institutes which the State Government has fixed. The writ appeal was disposed of directing:
'(i) The NCTE alone is entitled to assess the relative merits of the applicants for recognition and it is not permissible for the State Government to assess relative merits of the applicants for 'No Objection Certificate' at the stage of consideration of the applications for grant of No Objection Certificates. The State Government is bound to grant No Objection Certificate to those applicants who fulfil the norms and conditions specified in G.O.Ms. No. 398, Education, dated 4-12-1997.
(ii) The NCTE, Southern Regional Committee, Bangalore, while granting recognition under Section 14(3)(a) of the NCTE Act, shall grant recognition only to such number of institutions which the State Government of Andhra Pradesh has fixed.
(iii) In the facts and circumstances of the case, the parties shall bear their own costs both in writ appeal and writ petition.
(iv) The judgment and order of the learned single Judge dated 37-4-2000 made in WP No. 4548 of 2000 accordingly shall stand modified in terms of the above directions and in all other respects the order of the learned single Judge shall remain unaltered'.
21. S.R. Nayak, J., in the aforementioned decision, speaking for the Division Bench observed:
'However, the State Government's role after the enactment 'of the NCTE Act is mainly restricted to the aspect relating to the need for establishment of institutions offering or intending to offer a course or training in teacher education. In other words, the State Government is still entitled to make an assessment about the need for establishment of such institutions offering or intending to offer a course or training in teacher education. In that view of the matter, the finding recorded by the learned single Judge that the State Government's jurisdiction and authority in that regard is in no way denuded by the subsequent NCTE Act is unexceptionable. However, under the guise of assessing the need for establishment of such institutions, the State Government cannot go into the relative merits of the applicant at the stage of consideration of the application for grant of No Objection Certificate and limit the number of applications to the number of institutions determined by the State Government in a locality regardless of the fact that an applicant who is denied No Objection Certificate has fulfilled all the norms and conditions specified under G.O.Ms. No. 398. The assessment of relative merits of the applicants for grant of recognition falls within the exclusive domain of the NCTE by virtue of the power conferred upon it by Section 14 ofthe NCTE Act. The NCTE atone is entitled to scrutinize as to whether an institution which intends to offer a course or training in teacher education has adequate financial resources, accommodation, library, qualified staff, laboratory and fulfils such other conditions required for proper functioning of the institution as may be specified by the regulations framed under the NCTE Act. Any contrary view would offend the very object and scheme of the NCTE Act and the authority conferred by it on the NCTE'.
22. In a case of this nature, where the field is covered by a Central Act, the State has a limited role to play is neither in doubt nor in dispute. In B. Srinivas v. P. Krishna Malakonda Reddy, : 2001(3)ALD490 , a Division Bench of this Court relying upon the decision of the Apex Court in Preeti Srivastava v. State of M.P., : AIR1999SC2894 , held that the prescription of Diploma of National Board of Examinations qualification for admission to Doctor of Medicine (Cardiology) being contrary to the qualifications prescribed by the Medical Council of India under Section 33 of the Indian Medical Council Act, 1956, is void and non-est and that any rules made by the State on such matters contrary to the regulations made by the Medical Council of India would be non-est and non-operative.
23. This aspect of the matter has been considered by the Apex Court in T.K.V.T.S.S. Medical Educational and Charitable Trust (supra) and it has been held:
'It would thus appear that in Section 10A Parliament has made a complete and exhaustive provision covering the entire field for establishing of new medical colleges in the country. No further scope is left for the operation of the State legislation in the said field which is fully covered by the law made by Parliament. Applying the test laid down by this Court, it must be held that the proviso to Sub--section (5) of Section 5 of the Medical University Act which was inserted by the State Act requiring prior permission of the State Government for establishing a college are repugnant to Section 10A inserted in the Indian Medical Council Act, 1956 by the Central Act which prescribes the conditions for establishing a new medical college in the country. The said repugnancy is, however, confined to the field covered by Section 10A, viz., establishment of a new medical college and would not extend to establishment of other colleges.
It is no doubt true that in the scheme that has been prescribed under the regulations relating to establishment of new medical colleges one of the conditions for the qualifying criteria laid down is that essentiality certificate regarding desirability and feasibility of having the proposed college at the proposed location should be obtained from the State Government. The said condition about obtaining an essentiality certificate from the State Government regarding desirability and feasibility of having the proposed college at the proposed location cannot be equated with obtaining prior permission of the Slate Government for establishing a new medical college as required under the proviso to Section 5(5) of the Medical University Act. .....
24. in Jaya Gokul Educational Trust (supra), the Apex Court held:
'As already stated, in view of the judgment of this Court in Tamil Nadu case, it is obvious that there is no need to approach the State of Kerala for its approval for starting the Engineering Colleges. There is no power vested in the State under any State Law to grant approval and even if it was so vested, it would have been void in view of Tamil Nadu case. This ground of repugnancy alone would be sufficient to quash theState Government's letter dated 16-8-1996 refusing to give their approval.....
... 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 the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and 134 regulations had been 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 the AICTE or if the State felt that some conditions attached to the permission are required by the AICTE to be complied with, were not compiled with, then the State Government could always write to the AICTE, to enable the latter to take appropriate action. Decision of University in not granting further or final affiliation wrong on merits'.
25. Yet again in Dental Council of India v. Subharti K.K.B. Charitable Trust, : [2001]3SCR149 , the Apex Court laid emphasis on the standard of education.
26. A reference to some of the decisions as above shows that where the Central legislation has exclusively vested the power of granting recognition in an organization like Medical Council of India or AICTE, the power of the State to refuse permission or to issue essentiality certificate on considerations of policy was denied. In the present case the regulations made by NCTE in exercise of their powers under Section 32, themselves provide the manner of making applications. Regulation 5(e) requires every applicant to submit an application for recognition with a No Objection Certificate from the State or the Union Territory in which the institution is located. To enable the State to do so the State Level Committee has been constitutedand by G.O. Ms. No. 398, dated 4-12-1997 the Government has also laid down the guidelines. This Court in St. Mary Education Society's case (supra) upheld the power of the State to grant No Objection Certificate to only those applicants who fulfil the conditions specified in G.O.Ms. No. 398. To this limited extent the power of the State cannot be denied nor it is denied before us. Initially the writ petition is filed challenging the order of the State Level Committee rejecting permission to the petitioner. An amendment application was filed being WPMP No. 33810 of 1999 praying to declare Clause (e) of Regulation 5 of the regulations made by NICTE as ultra vires the provisions of the Act.
27. Section 12 lays down functions of the Council. The Council inter alia is entrusted with the functions like making recommendations to the State and Central Governments in the matter of suitable programmes in the field of teacher education, laying down guidelines for compliance by recognised institutions for starting new courses, training and providing physical and instructional facilities, and take all necessary steps for preventing commercialization of education. Section 14(1) provides that every institution offering or intend to offer teacher training education shall make an application to the Regional Committee in such form and in such manner as may be determined by regulations. Section 32(2)(e) and (f) enable the NCTE to make regulations inter alia for providing the form and manner in which an application for recognition will be submitted under Section 14(1) and also lay down conditions required for the proper functioning of the institution and conditions for granting recognition under Clause (a) of Sub-section (3) of Section 14. The regulations with which we are concerned are, in our opinion, are referable to Sections 12, 14(1) read with Section 32(2)(e) and (f) of the NCTE Act. The Act itself requires an application to be made in the manner as determined by the regulations inregard to the form. Regulation 5 precisely deals with the manner of making an application and provides that every application shall be accompanied by No Objection Certificate by the State. On a plain reading of the relevant provisions we must reject the contention of the learned Counsel for the petitioners that Regulation 5(e) cannot be held to be ultra vires the Act nor it is unconstitutional. The submission is devoid of any merits. We may also reiterate that the G.O. Ms. No. 398 which provides guidelines for constitution of the State Level Committee as well as guidelines to be followed by the said Committee in issuing No Objection Certificate to applicants. These guidelines are only intended to inject transparency in the decision making by the State Level Committee. There is nothing in the Government Order which is contrary to the Act or the regulations made thereunder.
28. The learned Counsel has placed strong reliance on the judgment in Basavangudi's case (supra). A learned single Judge of Karnataka High Court, after noticing the provisions of Sections 14 and 32 of the Act came to the conclusion that Section 14(1) only permits to prescribe a form, the manner and mode of making an application and in the guise of said power the applicants cannot be compelled to obtain a No Objection Certificate from the State Government. In that premise the learned Judge struck down Regulation 5(e). The observations of the learned Judge are as under:
Keeping in view the considerations, the National Council, for the purposes of making an application for recognition in terms of Section 14(1) of the Central Act, could have only prescribed the form, the manner and mode in which the application was required to be filed. But, in the guise of the said power it has prescribed the condition precedent for maintainability of such an application in the form of seeking No ObjectionCertificate from the State Government thereby virtually abdicating its statutory powers in the State Government and that too without there being corresponding obligation on the State Government for grant of such certificate by exercising its discretion within the framework of defined guidelines. Therefore, incorporation of the impugned Clause (e) in the Central Regulations is clearly ultra vires the powers of the National Council. Accordingly, this clause is liable to be struck down.
29. Sri B. Adinarayana Rao, the learned Counsel for the NCTE has brought to our notice that a Division Bench of the Karnataka High Court reversed the judgment of the learned single Judge in Basavangudi. Unreported judgment of the Karnataka High Court in National Council for Teacher Education v. Jachani and Ors., dated 9-10-2000 in Writ Appeal No. 2643 of 1999 (CORAM : Acting Chief Justice Mr. Ashok Bhan and Mr. Justice Gururajan). Be that as it may, we have referred to the provisions of Section 20 of the Education Act. In our opinion, when any provision in a legislation covered by the field in relation to entries in List I and List III, say like education, is considered by the Court, it must resort to harmonious construction. The Court cannot lose sight of the fact that Indian Constitution has federal polity wherein the legislative powers are distributed among the Union and member States. Though there is a preponderance of unitary characters in the Constitution a delicate balance is to be maintained as otherwise the basic principles of democracy and decentralization would be defeated. Under the A.P. Education Act it is the State which has to decide the desirability of having a B.Ed college. Likewise, unless a B.Ed course offered by a college is recognized by a University to which it is affiliated no purpose would be served by merely granting recognition to a B.Ed, college which is not affiliated to University or whose course is not recognized by the concerned University. Keeping thesematters in view and having regard to the provisions of the NCTE Act which are different from the Medical Council of India Act, Dental Council Act, NCTE Act we are convinced that Regulation 5(e) of the regulations does not suffer from any constitutional infirmity.
30. Respondent Nos. 2 and 3 have rejected the application of the petitioners on the ground that the land possessed by the petitioner-society is not composite plot and it is in two plots separated by a distance of 1 km, that the land is not accessible to any town being 25 kms. away from Karimnagar and that there are no teaching schools within a radius of 5 kms. We have examined these reasons for rejection in the light of the guidelines issued in G.O. Ms. No. 398 as well as regulations made by the Council. We are not sitting as an appellate authority over the decisions of the State Level Committee. No material is placed before us to show that the decision suffers from any perversity. It is the fundamental principle of administrative law that when on the given material the decision making authority determines the facts and acts on such facts, unless there is misdirection the decision cannot be brought under the doctrine of illegality. We fail to understand as to how the petitioner could be said to have complied with the various guidelines laid down by the State Government which is required to give a No Objection Certificate. Regulation 5(e) cannot be interpreted as empowering the State Government to issue No Objection Certificate mechanically in a routine manner to all the applicants who intend to approach NCTE for recognition. The same would be contrary to the very purpose for which the State Government is empowered to issue No Objection Certificate.
31. In the result, we see no merit in the writ petition and the same is accordingly dismissed without any order as to costs.