IMPORTANT POINT
Court cannot perpetuate and encourage an illegality.

JUDGMENT

D.K. Jain, J. —

1. Leave granted.

2. This batch of appeals, by grant of leave, arises out of judgments and or- ders dated 9th April 2009, 22nd June 2009, 17th July 2009 and 18th Septem- ber 2009 respectively passed by the Gauhati High Court at Guwahati. By the impugned judgments, the High Court has held that the Assam Ele- mentary Education (Provincialization) (Amendment) Rules, 2005 (for short “the Amendment Rules, 2005”) are ultra vires the provisions of the National Council for Teacher Education Act, 1993 (for short “the Act”) and the Regulations framed thereunder.

3. The material facts leading up to the filing of the writ petitions before the High Court may be stated as follows :

The National Council for Teacher Education (for short “the NCTE”) was set up in the year 1973 by a Government Resolution as a National Ex-pert Body to advise the Central and State Governments on all matters per-taining to teacher education. Since the role assigned to the NCTE was purely advisory in nature, it had very little impact on the standards of teacher train-ing institutions in the country and on their unplanned growth. Therefore, in order to empower the NCTE to make qualitative improvements in the sys-tem of teacher training, in the year 1993, the Act was enacted by the Parlia-ment giving statutory recognition to the NCTE. It is manifest from the Pre-amble to the Act that it had been enacted with a view to achieving planned and coordinated development; and proper maintenance of norms and stand-ards in the teacher education system etc. throughout the country.

4. Section 12 of the Act enumerates the functions of the NCTE. Primarily, it provides that it shall be the duty of the NCTE to take all such steps as it may think fit to ensure that there is planned and coordinated development of teacher education and proper standards in that behalf, determined by it, are maintained. For achieving the object for which the Act was enacted, several functions enlisted in the Section have been assigned to the NCTE, which includes laying down guidelines in respect of minimum qualifica- tions for a person to be employed as a teacher in schools or in recognized institutions. Section 32 of the Act confers on the NCTE power to make Regulations. Sub-clause (d)(i) of sub-section (2) of Section 32 provides that the NCTE may lay down minimum qualifications for a person to be employed as a teacher under clause (d) of Section 12. Under Section 33 of the Act, the Regulations made by the NCTE are required to be laid be- fore each House of Parliament and it is only upon due approval of such Regulations or upon modifications as may be made by the Parliament that the Regulations take effect.

5. In exercise of powers conferred on the NCTE under Section 32(2)(d)(i) of the Act, it framed a set of Regulations viz. National Council for Teacher Education (Determination of Minimum Qualifications for Re- cruitment of Teachers in Schools) Regulations, 2001. In the schedule to the said Regulations, the minimum academic and professional qualifica- tions for recruitment of teachers at different levels have been stipulated. In so far as, the elementary/primary schools are concerned, the qualifica- tions prescribed by the schedule are as follows :

“(i) Senior Secondary School Certificate.

(ii) Diploma of certificate in basic teachers training of a dura- tion of not less than two years, Or Bachelor of Elementary Education (B.E.Ed)”

The said Regulations further contemplated that the existing Recruitment Rules would be modified within a period of three years so as to bring such Rules in conformity with the qualifications prescribed in the schedule to the Regulations.

6. In the State of Assam, in March 1999, a pre-service teacher’s training course of two years duration leading to award of diploma had been intro- duced and the admission to the said course was regulated by an advertise- ment published in the newspapers on 14th April, 1999. In the said advert- isement, it was mentione