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2008 (2) GCD 1213 (Guj)
Hon’ble Mr. Justice Jayant Patel
Sarvoday Charitable Trust
Versus
Gujarat University & Anr.
Special Civil Application No. 17575 of 2007—Decided on 07/02/2008
Recognition of petitioner institution for MEd Classes by NCTE — Refusal of affiliation by University — Propriety of — Finding as to.
Point in Issue :
After recognition of petitioner institution by NCTE whether University can refuse affiliation.
Head Note :
National Council for Teacher Education Act, 1993 (Central Act 73 of 1993) — Sections 12, 14(3), 14(6), 15, 16, 17 and Chapter IV — Maharashtra University Act, 1973 — Sections 39, 82 and 83 — Constitution of India, 1950 — Articles 19, 19(1)(g), 19(6), 21-A, Part and Entry 66 of List I Schedule VIII — Recognition of petitioner institution for MEd Classes by NCTE — Refusal of affiliation by University — Propriety of — Finding as to — It is held to be obligatory on the part of University to grant affiliation to the petitioner institution running M.Ed. Classes who has been granted recognition by NCTE under the Act of 1993 — Court, therefore, directed University to grant affiliation to the petitioner institution without delay — However, Court made it clear that the said direction shall not operate as a bar to University in bringing to the notice of Regional Committee of NCTE for non-compliance of the provision of the Act, Rules and Regulations if any — It shall also be open to NCTE to exercise powers if a case is made out before it for non-compliance to the provisions of the Act or the Rules or Regulations made thereunder or the conditions for grant of recognition.
Held :
In a case where an institution has been found eligible and has been granted recognition by NCTE under NCTE Act, it would be required for the University to grant affiliation as per the mandate of Section 14(6) of the NCTE Act being the law made by the Parliament and to such cases Section 39 of the Gujarat Universities Act would have no applicability.
[Para 12]
Section 17 of the Act expressly deals with such situation inasmuch as, if the Regional Committee is satisfied that a recognised institution has contravened any provisions of the Act or the Rules or the Regulations, order made or issued thereunder or any conditions subject to which the recognition was granted under Sub-section (3) of Section 14, it has the power to withdraw the recognition of such recognised institution for the reasons to be recorded in writing. [Para 17]
Literal meaning thereof shows that the affiliating University has to constitute, as per its policy, the Selection Committee, to recommend for the appointment in the institution which has been granted recognition by NCTE. It is not a case where the affiliation was granted and thereafter, the complaint is made against the appointment made without recommendation of the Selection Committee constituted by the University, but is a case of raising the dispute prior to the granting of affiliation by the University. If the University is to raise the contention that until the aforesaid condition is complied with, it would not result into full compliance to the norms and regulations framed by the NCTE itself, it would be required for the University first to grant the affiliation and thereafter to constitute a Committee and to undertake the process of recommendation for appointment. In the present case, the University has declined to grant the affiliation or rather no affiliation whatsoever is granted inspite of having been brought to the notice that the recognition is already granted by NCTE under the Act to the petitioner institution. It can hardly be disputed that until the affiliation is granted by the University, there will not be any authority on the part of the University to constitute a Selection Committee for recommendation of the appointment in the petitioner institution. Such power may flow only after the affiliation is granted. [Para 18]
It appears that it is obligatory on the part of the University to grant affiliation to the petitioner who has been granted recognition by NCTE under the NCTE Act. As the aforesaid has not been done, it is hereby directed that the respondent University shall grant affiliation to the petitioner Institution within four weeks from the receipt of the order of this Court. It is clarified that the aforesaid direction shall not operate as a bar to the University in bringing to the notice of the Regional Committee of NCTE for non-compliance of the provisions of the Act or the Rules or Regulations made thereunder or the conditions for grant of recognition. The present order shall also not operate as a bar to NCTE from exercising the power under Section 17 of the Act, if a case is made out before it, for non-compliance to the provision of the Act or the Rules or Regulations made thereunder or the conditions for grant of recognition.
[Para 21]
Law Laid Down :
It is obligatory on the part of the University to grant affiliation to an institution who has been granted recognition by NCTE.
Jayant Patel, J.—The short facts of the case appear to be that the petitioner for the purpose of opening a College for imparting education in Master of Education (M.Ed.), which is a Post Graduation Course in the field of education, applied to National Council for Teacher Education (hereinafter referred to as “NCTE” for short) for grant of recognition. The petitioner is a self-financed college. Ultimately, on 30.05.2007 the recognition was granted on 11.06.2007 and thereafter final recognition is granted vide order dated 26.06.2007 to the petitioner. As per the petitioner, it had applied to the Gujarat University for affiliation vide application dated 19.06.2007 onwards and as there was no response and the academic year was to begin of 2007-08, the petitioner has preferred the present petition for the appropriate directions to the respondent University to grant affiliation for M.Ed. College.
2. It appears that when the matter was at the interim stage, as no interim direction was given in the present petition, the LPA was preferred and the Division Bench of this Court (Coram : Y.R. Meena, C.J. and (Smt.) Abhilasha Kumari, J.) vide order dated 08.10.2007 had directed the University to forthwith allot the available students, if any, for the provisional admission in the petitioner-appellant Institution. As per the University the matter is carried before the Apex Court against the said order and the notice has been issued by the Apex Court in the proceedings of SLP (Civil) No. 20191 of 2007. It also appears that since the order was not complied with the petitioner moved for contempt proceedings before this Court and the Apex Court has also stayed the said contempt proceedings. The learned Counsel for both the sides submitted that the matter may be finally disposed of, so as to put an end to the controversy and, therefore, I have heard the learned Counsel appearing for both the sides for final disposal.
3. Heard Mr. Oza, learned Counsel appearing with Ms. Vyas for the petitioner, Mr. Shelat, learned Senior Counsel appearing with Mrs. Nanavati for the University and Mr. Shastri, learned Counsel for NCTE. It would be just and proper to consider and refer the submissions at the appropriate stage as stated hereinafter.
4. The position of law on the point as to operation of the provisions of National Council for Teachers Education Act, 1993 (hereinafter referred to “NCTE Act” for short) over the State Legislature in the field of higher education is by now well settled. It would be profitable to extract the last decision of the Apex Court on the point, in case of State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors., reported in 2006 (4) JT 201 (SC) = 2006 (9) SCC 1. In the said case, the Apex Court had an occasion to consider the policy of the Government, declining opening of a college in the State of Maharashtra. The contention of the State was that keeping in view the local condition, the State of Maharashtra is to decide from time to time as to whether ‘No Objection Certificate’ (NOC) should be granted for opening the college or not, in spite of the recognition already granted by NCTE under the NCTE Act. The Apex Court, after considering its earlier decision, observed at Paras 57 to 65 as under:—
“57. 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
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