STATE OF MAHARASHTRA v. SANT DNY ANESHWAR SHIKSHAN SHASTRA MAHA VIDY ALAYA AND ORS.

1989. Section JOA of the Indian Medical Council Act, 1956 as inserted by the H

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A 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 University, Tamil Nadu Act, 1989 (State Act). B 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 C 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- D 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 prevail. Whereas the Central Act conferred power on the Central Government on the basis of the recommendation made E 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.

F Referring to the relevant provisions of the Constitution, of both the Acts and the relevant case law on the point, this Court cbserved 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 G Section lOA, 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 H establishing a medical college was repugnant to Section 1OA of the Central

STATE OF MAHARASHTRA v. SANT DNYANESHV.' AR SHIKSHAN SHASTRA MAHA VlOYALAYA [THAKKER JJ 677 Act and to the extent of repugnancy, the State Act would not operate. The A 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 B 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 c 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 l of Schedule Vil 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 D Entry 25 of List Ill 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 E 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 p 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 ful~v 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 pern1ission could be refused by the State Government on ·policy consideration'. As already

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A observed earlier, policy consideration was negatived by this Court in Thirumuruga Kirupananda Trust, as also in Jaya Goku/ Educa1iona/ 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 B nonns and standards for recognition of teacher education programmes and pennission to start new course or training) Regulations, 2002.

Regulation 6 required production of'No Objection Certificate' from the State Government/Union Territory. Clause (I) thereof read thus;

C 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 pennission to start a new course or training D and/or increase in intake shall be accompanied by a No Objection Certification (XOC) from the State or Union Territory in which the institution is located.

(emphasis 'supplied)

E (ii) to (vii) ....

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.

p 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- producrion 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 a/ia, observed as under:

STATE OF MAHARASHTRA " SANT DNY ANESHWAR SHIKSHAN SHASTRA MAHAVIDY ALAYA [THAKKER. J.] 679 "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 and 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 of teacher educators will have to be developed 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 NatioI1'al 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 D 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 I 996-97 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 I. I 0 lakhs institutions (1998-99). With the emphasis 011. 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: H

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A "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 B 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 c 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 education of SCs/STs and the Minorities.

The Central Advisory 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 I 994. Considering that CABE has a particularly important role to play at the present juncture in view of the significant socio economic and socio- F 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 G 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: H

ST ATE OF MAHARASHlR\ •·. SAm- DNY ANESHW AR SHIKSHAN SHASTRA MAHA\ODYALA YA [THAKKERJ] 68 J (i) Free and Compulsory Education Bill and other issues related to A Elementary Education (ii) Giris Education and the Common School System

(iii) Universalisation of Secondary Education (iv) Autonomy of Higher Education Institutions B (v) Integration of Culture Education in the School Curriculum (vi) Regulatory Mechanism for Text Books and Parallel Text Books taught in Schools Outside ihe Government system

-- (vii) Financing of Higher and Technical Education

A meeting of the Education Ministers of all States/UTs dealing with c 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 D 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, non- resident Indians and people of Indian origin for various activities E across all sectors of education.

An Ordinance was promulgated on November I I, 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 p 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." G '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 H

682 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 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 B 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 c 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." D 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 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 G 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 H

STATE OF MAHARASHTRA"· SANT DNY ANESHW AR SHJKSHAN SHASTRA MAHA VJDY ALA YA [THAKKER, J.] 68J of the Disadvan~aged groups, Evolution of text books and examination reforms are priority areas ofNCERT.

Kendriya Vidyalaya (KVs) aim at providing uninterrupted educ~tion 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 modem 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 (JEDC) scheme, started in 1974, provides I 00 per cent funding to State Governments/UTs and E 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, F 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 of Science Education in School, National Population Education Project, Promotion of Yoga in School, International Science G 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 H

684 SUPREME COURT REPORTS [2006] 3 S.C.R.

A '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 \o a University to consider the local conditions B 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.

C The decision relied on by Mr. T.R. Andhyarujina in Vidharbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra & Ors., [ 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 B.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-a-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 n:spondents 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 impennissible 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. Jn reply, Mr. Andhyarujuna H submitted that the constitutional validity of the Regulations or Guidelines had

STA TE OF MAHARASHTRA" SANT DNYANESHWAR SHIKSHAN SHASTRA MAHA VIDYALA YA (TIIAKKER, J.] 685 l not been challenged before the High Court and the respondents now cannot be pennitted 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 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 pennitted the State Government to collect necessary data and materials and make them available to NCTE so as C

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 D 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 2 lA of the Constitution. Under clause (g) E 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 21 A 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 tenned illegal or unlawful and the State Government could not have passed the impugned order refusing permission on the ground of so called 'policy' H

686 SUPREME COl!RT REPORTS [2006) 3 S.C.R.

A 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 B 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 c 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 D 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 the Act, once recognition has been granted by NCTE under Section 14( 6) of the Act, every university

*82. (I) The university shall prepare a perspective plan. and get the same approved by the E State Council for Higher Education for educational development for the location of colleges and institutions of higher Iearing in a manner ensuring equitable distribution of facilities for Higher Education having due regard, in particular. to the needs of unserved and under-developed areas within the jurisdiction of the university. Such plan shall be prepared by the Board of College and University Development. and shall be placed before the Academic Council and the Senate through the Management Council and shall. if necessary, be updated every year. F (2) No application for opening a new college or institution of higher learning. which is not in conformity with such plan. shall be considered by the university.

(3) The managements seeking permission to open a new college or insitution of higher learning shall apply in the prescribed form tu the Registrar of the university before the last day of October of the year proceeding the year from which the permission is G sought.

(4) All such applications received within the aforesaid prescribed time-limit. shall be scrutinized by the Board of College and University Development and be forwarded tu the State Government with the approval of the Management Council on or before the last day of December of the year. with such recommendations (duly supported by relevant reasons) as are deemed appropriate by the Management Council. H (5) Out of the applications recommended by the university. the State Government may

STATE OF MAHARASHTRA" SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDY ALAYA [THAKKER, 1.1 68 7 ('examining body') is obliged to grant affiliation to such institution and A sections 82 and 83 of the University Act do not apply to such cases.

Since we have decided the matters on merits, we hav.e 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 ofNCTE. B

grant permission to such institution as it may consider right and proper in its absolute discretion. taking into account the State Government's budgetary resources, the suitability of the managements seeking permission to open new institutions and the State level priorities with regard to location of institutions of higher learning:

Provided, however, that in exceptional cases and for the reasons to be recorded c in writing any application not recommended by the university may be approved by the State Government for starting a new college or institution of higher learning.

Provided further that, from the academic year 2001-2002, such permission from the State Government shall be communicated to the university on the before 15th July of the ytear in which the new college is proposed to be started. Permission received thereafter shall be given effect by the university only in the subsequent academic year. D

83. (I) On receipt of the permission from the State Government under section 82 of the Academic Council of the university shall consider grant of first time atlilliation to the new college or institution by following the prescribed procedure given in sub-section (2) and after taking into account whether and the extent to which the stipulated conditions have been fulfilled by the college or institution. The decision of the Academic Council in this regard shall be final. E (2) For the purpose of considering the application for the grant of affiliation the Academic Council shall cause an inquiry by a committee constituted for the purpose by it.

(3) The Academic Council shall decide-

(a) whether affiliation should be granted or rejected; F (b) whether affiliation should be granted in whole or part;

(c) subjects, courses of study. the number of students to be admitted;

(d) conditions, if any which may be stipulated while granting or for granting the affiliation. (4) The Registrar shall communicate the decision of the Academic Council to the G Management with a copy to the Director of Higher Education, and if the application for affiliation is granted. alongwith an intimation regarding:- (a) the subjects and the courses of study approved for affiliation; (b) the number of students to be admitted. (c) the conditions, if any, subject to the fulfillment of which the approval is granted. H

688 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 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.

B 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.

B.K. Appeals dismissed.

5. The procedure referred tu in >ection 82. except the second proviso tu sub-section (5) thereof. shall mutatis-mutandis, apply for the permission to open new courses and additional Faculties. The procedure for permission for starting new subjects and additional divisions in the existing colleges and institutions shall be such as may be prescribed by the State Government. from time to time.

6. No student shall be admitted by the college or institution unless the first time affiliation has been granted by the university to the college or institution.

7. The procedure referred to in sub-sections (I) to (4) shall apply. mutatis-mutandis. for the consideration of continuation of affiliation. from time to time.