- (1.) Leave granted. The present appeals are directed against the judgment and order passed by the High Court of judicature at bombay, on September 28, 2005 in Writ petition Nos. 6172 of 2005, 4769 of 2005 and cognate matters. Writ Petition No. 4769 of 2005 was filed by Sant Dnyaneshwar shikshan Shastra Mahavidyalaya for an appropriate writ, direction or order, quashing and setting aside the order dated December 28, 2004 passed by the State of maharashtra by which the petitioner was informed that the State of Maharashtra had taken a policy decision not to grant 'no objection Certificate' ('noc' for short) to any institution for starting new B. Ed. college for the academic year 2005-06. It was also decided to communicate the said policy decision to the Maharashtra university stating that if necessity aries in the next year, applications for the institutions would be considered at that time. A decision was also taken to bring it to the notice of national Council for Teacher Education, bhopal ('ncte' for short) that in the State of Maharashtra, there was no need for new b. Ed. trained manpower and hence NCTE should not directly consider any application for grant of permission to start B. Ed. college. In spite of the aforesaid policy decision by the State of Maharashtra, NCTE granted permission to the petitioner institute. The State hence challenged the said action by filing Writ Petition No. 6172 of 2005 contending that the decision of NCTE ignoring the policy decision of the State government dated December 28, 2004 was not in consonance with law and was liable to be set aside.
(2.) Both the petitions were heard together by a Division Bench of the High Court. By a common judgment, the High Court allowed the petition filed by the institution, set aside the order passed by the State Government on December 28, 2004 and issued direction to the State of Maharashtra as well as maharashtra University to take appropriate consequential actions in accordance with law in the light of the decision taken by ncte in favour of the institution permitting opening of a new B. Ed. college. Similar directions were issued in favour of other colleges also.
(3.) To appreciate the contentions raised by the parties to the proceedings, few relevant facts in Writ Petition No. 4769 of 2005 may now be stated. " (1) The petitioner is a public trust registered under the Bombay Public Trusts Act, 1950 as also society registered under the societies Registration Act, 1860. It was the case of the petitioner that it was running a secondary school at village Kondhapuri, taluk Shirur, District Pune, having a strength of about 150 students. The petitioner desired to impart education for B. Ed. course. To meet with the requirement of infrastructure, library, staff etc. , it spent more than rupees one crore. The petitioner then made an application to SNDT women's University, Mumbai on October 30, 2004 by paying the requisite affiliation fees. A copy of the said application was forwarded to the Principal Secretary. Higher and Technical Education, Mantralaya, mumbai. An application was also made by the petitioner to NCTE, Western Region office, Bhopal on December 31, 2003 in the prescribed format for grant of permission to start B. Ed. college for women in accordance with the provisions of the National Council for teacher Education Act, 1993 (hereinafter referred to as 'the Act') and the National Council for Teacher Education (Norms and Conditions for recognition of Bachelor of Elementary Education) regulations, 1995 (hereinafter referred to as 'the Regulations'). The petitioner also deposited the original Fixed Deposit Receipt (FDR) of Rs. 5 lacs towards Endowment Fund. "" (2) According to the petitioner, the university processed the application of the petitioner for affiliation and forwarded it to the state Government. It was averred in the petition that the application was recommended for the establishment of the proposed B. Ed, college to be opened by the petitioner. NCTE, vide its letter dated February 24, 2005 asked the petitioner whether it was ready for inspection as per the norms prescribed by the NCTE. Since the petitioner was ready for such inspection by the ncte, the Expert Committee of NCTE visited the petitioner's campus on June 6, 2005 and verified the adequacy of infrastructure, staff and other norms. The report was submitted by the Committee to NCTE which approved and granted recognition for B. Ed. college to be opened by the petitioner from academic year 2005-06 with an intake capacity of 100 students. After receipt of the said letter, the petitioner applied to the Government of Maharashtra on July 4, 2005 for grant of permission to start the college and/ or inclusion of the name of the college in the Central Admission Process for the year 2005-06. According to the petitioner, the state Government neither acted on the said letter nor even replied. Under the maharashtra Universities Act, 1994 (hereinafter referred to as 'the University Act') , only after permission from the Government, b. Ed. college can be opened. Since the admission process was to be delayed and the petitioner had undertaken every exercise by getting necessary permission from ncte and had invested huge amount of more than one crore on development, infrastructure and appointment of staff etc. , it was constrained to approach the High court by filing a petition for appropriate relief. "" (3) An affidavit was filed on behalf of SNDT women's University stating therein that it did not recommend the case of the petitioner to the State as in terms of the Prospective Plan for 2002-07, the district-wise allocation for Pune was only one college. It was, therefore, not possible to recommend opening of a new B. Ed. college by the petitioner. "" (4) An affidavit was also'filed by the State authorities, asserting that the petitioner had to obtain NOC from the State Government. According to the respondents 3 and 4, the state Government had an important role to play in the process of grant of permission by NCTE and such role has been recognized by this Court in St. John Teachers training Institute v. Regional Director, ncte and Another. It was stated that the state Government had been assigned an important task of development and improvement of teacher's education and thus it was vitally interested in education and specially in professional courses in the state. It was only the State Government which could correctly assess and know the extent of requirement of trained manpower and supply of trained teachers keeping in view the requirements, change of occupation and demand of such teachers. The input from the State Government through noc was thus vital for enabling NCTE to exercise its powers and discharge its functions properly and without involvement of the State Government and availability of necessary input by the State Government, nctf could not grant permission. It was then stated that there were 216 B. Ed. colleges with an intake capacity of more than 20,000 students. Additionally, NCTE had sanctioned 40 new B. Ed. colleges on the basis of NOC issued by the State Government prior to 2005-06. The State Government had issued NOC to nearly 80 new institutions upto 2004-05. There was, thus, sufficient B. Ed. colleges and intake capacity taking into account the need for teachers. A conscious decision was, therefore, taken by the Cabinet Sub-Committee on december 28, 2004 not to grant approval or issue NOC for starting any new institution or to increase intake capacity of existing institutions imparting B. Ed. course for the year 2005-06. The said decision of the government was communicated to all the universities on February 4, 2005 and the universities were directed to communicate the decision of the Government to institutions concerned. In spite of the above decision, NCTE forwarded the recommendation for grant of permission in favour of certain institutions. But, as policy decision had been taken by the State Government, the proposal of the petitioner institution for grant of NOC was not forwarded to NCTE. The state had also made a complaint in the affidavit that NCTE had not clarified in what circumstances it has issued permissions to the petitioner and other institutions without NOC from the State Government. "" (5) An additional affidavit was also filed reiterating the decision of the Cabinet Sub-Committee dated December 28, 2004. It was stated that it was also decided to withdraw/cancel noc which had been issued by the State Government in favour of some institutions. Those institutions, therefore, filed writ petitions and the Division Bench set aside the decision of the State Government by granting liberty to the State to take appropriate action in accordance with law after giving an opportunity of hearing to the petitioners. The State Government, thereafter, afforded hearing to the institutions, but again it was decided to withdraw/cancel noc in view of the policy decision of the government. It was, therefore, prayed by the respondent State that its decision was a policy decision which was in consonance with law and the petition was liable to be dismissed. "" (6) By filing Writ Petition No. 6172 of 2005, the State had challenged the action of NCTE of granting permission to open new B. Ed. college ignoring the policy decision of the state dated December 28, 2004, praying that the action of NCTE was illegal and unlawful and was liable to be set aside. "" (7) The NCTE also filed a counter before the High Court. Relying on various provisions of the Act, NCTE stated that necessary sanction had been granted by NCTE and the said decision was legal, valid and in consonance with law. It was stated that since the final authority for granting such permission was only NCTE under the Act, sndt University as well as the State Government ought to have respected the order passed by the NCTE by taking consequential actions. It was stated that the State government never informed NCTE about its general policy not to issue any NOC to new B. Ed. institution for academic year 2005-06 in view of output of existing B. Ed. colleges. It was further stated that NCTE considered the question but decided not to accept the decision of the State government for the reason that the State while taking such decision, did not consider the education policy of the Government of India under Sarv Shiksha Abhiyan which required opening of large number of primary schools and thereafter secondary schools. It also did not take into account preferential needs of hilly and remote areas, requirement of teachers for Science, Mathematics and english, need of non-formal education of adults, disabled, tribals etc. and did not consider the need of trained teachers who do not seek employment in other institutions but wish to use the training in self employment such as opening of coaching classes, etc. "" (8) In an additional affidavit, NCTE stated that in the 73rd meeting, the agenda included consideration of letter of the State of Maharashtra dated May 7, 2005 in which it was stated that Government had decided not to issue any NOC for starting new B. Ed. college for the academic year 2005-06. The meeting was held between June 3 and 5, 2005 which was attended by the State representative but as the agenda could not be completed, the meeting continued on June 16 and 17 when State representative was not present. After considering the policy and views of the Government, the Committee decided that the decision of the State Government was not binding upon NCTE and accordingly NCTE had decided to grant permission to open 16 new B. Ed. colleges. "" (9) The High Court, therefore, was called upon to consider the role played by the state Government in the process of consideration of application by the institutions seeking recommendation of opening B. Ed. colleges by NCTE in the light of the provisions of the Act in juxtaposition to the extent of trained manpower required by the state and to take policy decision on the basis of output of teachers by such colleges. The Court was also called upon to consider whether in the absence of any material being made available by the State government to NCTE whether the latter can process the application and take a decision contrary to the decision of the State Government. A question had also arisen as to whether the State Government can refuse permission to an institution which had been granted permission to start B. Ed. college by NCTE under the Act and whether policy decision of the State Government not to grant NOC would bind NCTE in the light of the provisions of the Act. "" (10) The High Court considered the material provisions of the Act and the Regulations and the relevant decisions of this court, particularly in State of Tamilnadu and Anr. v. Adhiyaman Educational and Research Institute and Ors. , Jaya Gokul educational Trust v. Commissioner and secretary, Higher Education Department, Thiruvananthapuram, Kerala state and Anr. and St. John's Teacher's training Institute, referred to above. "" (11) The High Court held that in the light of the relevant provisions of the Act as interpreted by this Court in various decisions, the appropriate authority to take decision regarding opening of new colleges was ncte and neither the State Government nor the University can act contrary to the decision of NCTE. According to the High court, under the Act, the only authority which could take a decision regarding opening of new B. Ed. college or increase in intake capacity was NCTE and such decision cannot be ignored either by the State authorities or by the University. So far as the function of the State Government was concerned, the High Court observed that it was in the nature of supply of necessary data and materials so as to enable NCTE to undertake the process of coming to an appropriate decision but the State had no power to decide that it had taken a policy decision not to grant permission to open new B. Ed. college for a particular period. Such decision was not in accordance with the provisions of the Act nor in consonance with law laid down by this Court. Regarding role of the University, the High Court held that it was incumbent on the University to take an appropriate decision and consequential action on the basis of decision of ncte and the provisions of the University act required the University to implement such decision. It was, therefore, not open to the University to take any action overlooking the decision of NCTE and relying on a decision of the State Government. In the light of the above findings the High Court allowed the petition filed by the institutions and dismissed the writ petition of the State government. "" (12). The High Court, in the operative part, observed as under: "for the reasons stated in the judgment, we direct the Director of Higher Education, government of Maharashtra to forthwith include the name of the petitioner institute in the list of central Admission process for the year 2005-2006 B. Ed. Course consequent to the petitioner being allowed to start B. Ed. college. The University considering Section 14 (6) of the National Council for Teaching Education Act, 1993 to grant first time affiliation to the petitioner college to enable the College to admit students. That affiliation would be subject to the petitioner college fulfilling the requirements as required by the University to grant first time affiliation in terms of the University Act, Rules and Statute to the extent that has to be complied with. It is made clear that those who have been admitted pursuant to the Central Admission process are not eligible to apply against the seats now available and admissions already done will not be interfered with and the new seats will be filled in from amongst the candidates still on the merit list, by conducting a special round of admission. Rule made absolute to that extent in Writ petition No. 4769 of 2005. Rule discharged in Writ Petition No. 6172 of 2005 subject to what we have set out in the body of the judgment. "" (13) As already stated, NOC had been granted earlier in favour of other colleges by the State Government on the basis of permission granted by NCTE. But it was subsequently withdrawn/cancelled in the light of the policy decision dated December 28, 2004 not to permit any new B. Ed. College to be opened. Those colleges filed petitions which also came to be allowed by the High Court. ";